Major League Baseball

Don't convict Braun just yet

Published Feb. 16, 2013 12:00 a.m. ET

Ken Rosenthal

OK, so why would Ryan Braun’s attorneys use Anthony Bosch, a person of ill repute, as a consultant in their appeal of Braun’s positive drug test in 2011?

Because, according to Benjamin Brafman, a well-known criminal-defense lawyer, attorneys occasionally seek information from miscreants on subcultures with which the attorneys are not familiar.

“I've done it. I know a lot of very good, highly respected criminal-defense lawyers who have consulted with people that might have unsavory reputations,” said Brafman, who has no connection to Braun.

“Sometimes they may have certain experiences that you try to learn from. I've consulted with loan sharks, street gamblers, drug dealers who might impart insight that I'm not going to get from a high-quality trained professional.”

So, Braun’s explanation for why his name appears in records from Biogenesis, the anti-aging clinic that Bosch operated in South Florida, is at least plausible. Braun said in a statement that his only connection to Bosch is through his attorneys, who briefly dealt with Bosch.

Still, even if you believe Braun’s account — the player declined further comment at the Milwaukee Brewers’ spring-training complex on Saturday — it’s fair to ask why his attorneys took such a risk.

Bosch is not a doctor. His father, Pedro, an actual physician, was the source for the banned substance that triggered a positive test and 50-game suspension for Manny Ramirez in May 2009, according to an ESPN.com report that summer. The report identified Anthony Bosch as a contact between his father and Ramirez.

The younger Bosch, then, was not exactly a secret in baseball circles. And still Braun’s attorneys went ahead.

Associate with a lowlife, and you might get into a financial dispute — which, according to Braun, is precisely what happened between his attorneys and Bosch, leading to the inclusion of Braun’s name in the Biogenesis records.

Associate with a lowlife, and your cover might be blown if the lowlife is exposed — and a series of reports, starting with one in the Miami New Times, identified Bosch as a supplier of performance-enhancing drugs, though Braun has not been clearly established as one of his customers.

If Braun did nothing wrong, he has nothing to fear from baseball’s investigation into Biogenesis, to which he has pledged full cooperation. He also would have nothing to fear from a federal investigation, which may be taking place as well.

But the mere appearance of Braun’s name in the Biogenesis records gave baseball an opportunity to go after him again – and baseball, you might recall, was not happy about losing Braun's appeal a year ago.

Was reaching out to Bosch, if that's all that occurred, worth all the trouble?

Braun’s attorneys used more than 10 consultants, according to a source, and spoke with Bosch only briefly in 2011, at the beginning of the case. The source said that neither Braun nor his attorneys paid Bosch, prompting the dispute between the parties. Braun’s lead attorney, David Cornwell, issued a statement saying that Bosch’s contributions were “negligible.”

The connection, however minimal, still led to Braun getting linked to Biogenesis, according to Braun’s own account. Now, imagine if a breach of Braun’s confidentiality never had occurred in 2011, and his positive drug test and successful appeal never had become public.

How would Braun have explained his name surfacing in Biogenesis’ records without revealing that he tested positive?

Risk. Too much risk.

“When a criminal-defense lawyer has to associate with someone from the street, there is always a risk,” said Brafman, whose list of clients includes Plaxico Burress, Sean “P. Diddy” Combs and the late Michael Jackson.

“You have to be very careful. You have to take whatever precautions that you see as appropriate at the time. Because they are unsavory, there is no way to protect yourself 100 percent that this discussion doesn't come back to haunt you.

“Your concern is how important is the information, who are they, how well you can protect yourself so that it doesn't suggest a relationship that is inappropriate.”

Braun said in his statement that his attorneys “were previously familiar” with Bosch, though he did not specify the nature of the relationship. If his attorneys’ familiarity with Bosch did not breed contempt, it certainly should have fostered an extreme degree of caution.

Yet, as long as Braun’s name is not directly linked to PEDs in Bosch’s records — and it wasn’t in two reports thus far — he can stick to his story: My attorneys were the ones who contacted Bosch. Not me.

Some in Braun’s camp, in fact, say that there is less ambiguity in his supposed connection with Bosch than there was in his appeal of a positive test for elevated testosterone in Oct. 2011.

Braun won his appeal and avoided suspension when his legal team and the players’ union successfully argued a broken chain of custody. But Braun never fully explained why he tested positive in the first place.

Bosch, according to Braun, answered his attorneys’ “questions about T/E ratio and possibilities of tampering with samples.” Braun and his attorneys eventually pointed out that his 20:1 testosterone-to-epitestosterone ratio was three times higher than any previously recorded, suggesting a faulty test — but that point, sources said, was not the basis for Braun’s successful appeal.

A normal ratio is 1:1; a ratio of 4:1 triggers a second, more sophisticated test, one that showed Braun had synthetic testosterone in his system — and one that he did not dispute in his hearing, according to ESPN.com.

Did Braun win his appeal on a technicality? Yes. But when you’re talking about due process, technicalities matter.

During the initial debate over steroid testing, the players’ union was concerned that management would not follow proper procedures, trampling players’ rights. Shyam Das, baseball’s arbitrator at the time, ruled that the collector of Braun’s sample did not follow the proper procedures — procedures that later were amended.

It was wrong to pre-judge Braun then, and it would be wrong to pre-judge him or any of the other players named in the Biogenesis records now. As Michael Weiner, head of the players’ union, said recently, “This investigation that MLB is running has yet to produce any evidence that any player has violated the (testing) program.”

Until there is evidence, there can be no suspensions. Until there are suspensions, there should be no assumptions. Braun and the others allegedly linked to Biogenesis are entitled to a presumption of innocence — as opposed to, say, a trial by media.

Still, questions linger.

If Braun is telling the truth, what were his attorneys thinking?

Associate with a lowlife, and you’re taking a risk. Associate with a lowlife, and you’re asking for trouble.