Commentary

Case against Barry Bonds still has holes

Originally Published: October 15, 2010
By Lester Munson | ESPN.com

Five months before the trial of perjury charges against Barry Bonds, both sides -- federal prosecutors and Bonds' lawyers -- offered previews of their evidence in a series of court documents filed on Friday. (See the news story here.) The filings include witness lists, listings of the documents and drug tests the prosecutors will offer, and a trial memorandum that describes how the government intends to prove that Bonds lied to a grand jury on Dec. 4, 2007.

The court papers raise legal questions. Here are some of the questions and their answers:

Greg Anderson, Bonds' personal trainer who allegedly kept logs of Bonds' steroid use and provided samples to BALCO of Bonds' urine and blood that tested positive, has refused to testify against Bonds and has served time in jail on contempt of court charges for his refusals. He is on the government's witness list again. What do the federal prosecutors plan to do in the face of Anderson's expected refusal to testify this time around?

In their trial memorandum filed Friday, the prosecutors stubbornly refuse to accept Anderson's refusal to testify. They tell U.S. District Judge Susan Illston that they will again subpoena Anderson to testify. If, as expected, he again refuses to testify, they are asking Judge Illston to "immediately conduct contempt proceedings and imprison Anderson" until he agrees to testify or, if he persists in his refusal, until the end of the trial. Even though Anderson served more than a year in jail for his previous refusals to testify and was released without testifying, the prosecutors continue to pursue him. Do they have some indication that Anderson has changed his thinking and might testify this time? There is no indication in the papers filed on Friday. Bringing Anderson back before Judge Illston for a second finding of contempt is highly unusual, and could irritate Judge Illston. It seems like a dubious and desperate move by the prosecutors.

Earlier reports suggested that Bonds tested positive during the 2003 Major League Baseball testing program, a program that was supposed to be conducted anonymously. Will the prosecutors be able to use the 2003 positive test?

The prosecutors intend to use the positive test from 2003; they describe it in detail in their filing on Friday. Even though the test was supposed to be anonymous and the samples destroyed, the prosecutors say they will prove that Bonds tested positive for "the clear," the performance-enhancing drug that the BALCO lab made famous. The test also shows Bonds was using artificial testosterone (a banned drug), and Clomid, which is an anti-estrogen compound often used by steroid users to jump-start their bodies' natural testosterone after they conclude a cycle of steroids. A recent decision by the U.S. Court of Appeals for the Ninth Circuit ruled that the government's seizure of the 2003 tests was illegal, and the prosecutors will face serious problems when they try to introduce the 2003 test in the Bonds trial. Will Judge Illston permit them to use the test? There is no doubt that the prosecutors can show a proper chain of custody, but the opinion of the higher court might be a problem. I expect Judge Illston to allow the prosecutors to use the 2003 test, but it will be a close call.

In February of 2009, Judge Illston told the prosecutors that, without Anderson's testimony, they would not be permitted to use the positive tests seized in raids on BALCO and Anderson's house  different tests than those in baseball's 2003 testing program -- as part of their case against Bonds. The government appealed her ruling and lost. Are the prosecutors still trying to use this evidence?

Yes. As in the continuing attempt to extract testimony from Anderson, the prosecutors persist in suggesting that they will somehow be able to overcome serious legal obstacles and persuade Judge Illston to allow them to use these positive tests. It is wishful thinking from the prosecutors. Although they offer no detail on their theory for the use of these tests in Friday's filings, they do suggest that they may become important in cross-examination of Bonds' witnesses. They also suggest, without argument or citation of legal precedent, that they should be admissible on the issue of "materiality." In a perjury prosecution, the false testimony must be "material" to the inquiry of the grand jury. It cannot be a lie about the weather or some other unimportant issue. It's another dubious argument. But the government will persist in offering this evidence, and there is likely to be some harsh reactions from Judge Illston.

Do the prosecutors have any evidence that will succeed in showing Bonds' guilt?

Yes. The prosecutors have some evidence that will be powerful. Kimberly Bell, Bonds' former mistress, is on the witness list filed on Friday, and she will tell the jury that Bonds admitted to her that he was taking steroids. She will also describe changes in Bonds' body, including "bloating, acne on the shoulder and back, hair loss, and testicle shrinkage." Steve Hoskins, a former personal assistant for Bonds who is also on the witness list, will describe conversations in which Bonds admitted steroid use. A number of former baseball players will describe how BALCO and Anderson helped them with steroids. Bobby Estalella, who played with Bonds on the San Francisco Giants, will describe a conversation in which Bonds "admitted using performance-enhancing drugs," according to the government filing.

Are there any surprises in what the federal prosecutors say about their case against Bonds?

None of much significance. The witnesses and the documents are the same witnesses and documents that were expected in the trial that was to begin in March of 2009 and was delayed by the prosecutors' unsuccessful appeal of Illston's adverse rulings. The only real surprise is that the prosecutors persist in trying to use material that they have already been told they cannot use by Illston and the higher court, without testimony from Anderson. The former personal assistant, Steve Hoskins, for example, taped a conversation with Anderson. The prosecutors say that it "contains Anderson's discussion of injecting [Bonds] and other statements consistent with the administration of anabolic steroids." Although the tape is obviously evidence that could help convict Bonds, it is unclear how the tape could be used without testimony from Anderson.

Based on these new documents, what do we know about the government's case against Bonds?

Although there has never been much doubt that Bonds lied to the grand jury, there is considerable doubt that the prosecutors can succeed in convicting him. The key continues to be Anderson's refusal to testify. If Anderson suddenly and unexpectedly told the prosecutors he is willing to testify, Bonds would be in serious jeopardy and would be looking to negotiate a settlement. But without Anderson and with Illston holding the prosecutors to highly technical and rigorous standards on evidence, their case is problematic.

What do the documents filed on Friday by Bonds' lawyers tell us about their plans for the trial?

Very little. But the burden of proof, of course, is on the prosecutors. They go first at trial, and they must produce evidence that will show beyond a reasonable doubt that Bonds lied to the grand jury. If their showing is in any way less than convincing, Judge Illston could end the seven-year-old prosecution with a ruling at the conclusion of the government's case that the prosecutors have failed to meet the minimum standard required to send the case to the jury for a decision.

If Illston allows the jury to decide the case, the defense may decide to produce no evidence. In the papers filed Friday, the only surprise is that the defense lawyers say they might call a former Bonds attorney, Michael Rains, to describe negotiations with the prosecutors both before and after Bonds testified before the grand jury. It's an unlikely bit of evidence. Negotiations between the sides in a contested court case are rarely, if ever, admitted into evidence at the trial. It is unlikely that Illston will permit the Rains testimony that Bonds' lawyers describe in their filing.

Lester Munson, a Chicago lawyer and journalist who reports on investigative and legal issues in the sports industry, is a senior writer for ESPN.com.

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