Commentary

A blow to the case against Barry Bonds

Originally Published: February 11, 2011
By Lester Munson | ESPN.com

Federal prosecutors in San Francisco have filed a fourth version of their perjury and obstruction of justice charges against Barry Bonds. With the trial scheduled to begin on March 21, the rewritten indictment and the elimination of six charges against Bonds raise questions about the strength of the government's case against Bonds and what might happen between now and the beginning of the trial. Here are answers to some of those questions:

Why did the government eliminate six of its charges in this new version of the indictment?

All six of the eliminated charges involve Greg Anderson, Bonds' personal trainer. The elimination of the Anderson-based charges is a recognition by the prosecutors that Anderson will never testify against Bonds. Anderson has already served more than a year in jail as a result of his refusal to cooperate with the government. The prosecutors will go through the motions of dragging Anderson into court again before the trial and demanding that he testify, but they clearly expect him to continue to support Bonds and to refuse to testify. These six eliminated charges were based on Bonds' claim to the grand jury that Anderson had never given him steroids and instead had given him "flaxseed oil" as a salve while Bonds' father, Bobby, was dying of cancer. Each of the charges would require testimony from Anderson, the only person other than Bonds with knowledge of the flaxseed oil scenario.

If the prosecutors have dropped six of the charges that depended on Anderson's testimony, why are they bringing him back into court to try to force him to testify?

Even though it appears obvious that Anderson will again refuse to cooperate, the prosecutors find it difficult to abandon their one last hope of extracting helpful testimony from him. If they did not bring him in for a final attempt before the trial, they would be criticized for not, as they say in baseball, "running it out." It is highly unlikely that Anderson will change his thinking on the issue, but it is not impossible. To complete the cycle of trial preparation, they will bring him before the court, ask him to testify and, when he refuses, ask that he again be incarcerated for his refusal. Anderson would then be confined in jail until the trial is concluded.

[+] EnlargeBarry Bonds
AP Photo/Jeff ChiuIf momentum matters in a trial, Barry Bonds is sitting pretty.

What does the government have left? Can the prosecutors prove that Bonds lied to the grand jury?

With a positive drug test from MLB's 2003 testing program and incriminating testimony from a former girlfriend and a former personal manager, the government still has evidence that Bonds was not truthful when he testified before the grand jury in December 2003. But without testimony from Anderson, the totality of the government's evidence is far from overwhelming. Bonds' formidable legal team will question the accuracy of the drug test, and they will attack the girlfriend and the manager as liars who are trying get even with Bonds. The attacks will do some damage to an already weak case. The government will have difficulty proving its case without Anderson's testimony.

Is the government's case now so weak that it will reconsider its prosecution of Bonds?

There is no doubt that the case has suffered significant damage as the result of Anderson's refusal to testify, and it has been further damaged by adverse rulings from U.S. District Court Judge Susan Illston. But the prosecutors are not likely to abandon their pursuit of Bonds. They know what they found in the government raids of BALCO and Anderson's home. They know that they have documentary proof that Bonds was using steroids and other performance-enhancing drugs. And they are convinced that he lied to the grand jury. Even if their best evidence will never be presented to the trial jury, they have a righteous feeling that their charges are valid. Under these circumstances, they will present the limited evidence they have and attempt to convince the jury that Bonds is guilty.

In addition to Anderson's refusal to testify and the adverse rulings from the judge, what other difficulties does the government face?

In any jury trial of any criminal charge, the prosecution is the first to submit its witnesses and its other evidence. At the conclusion of the prosecution's presentation of its evidence, the prosecutors tell the judge that they "rest" their case. At that point, Bonds' legal team will ask Judge Illston to rule that the evidence is so weak and so scant that the jury should not even be permitted to consider Bonds' guilt or innocence. It is a legal procedure known as a "motion for a directed verdict." It is usually a perfunctory procedure of no significance. In most cases, the judge routinely rules that the prosecutors have presented enough evidence to send the case to the jury for a decision. But in the Bonds perjury trial, this procedure will be a critical turning point. The government's evidence might or might not meet the standard required to send the case to the jury. Judge Illston, who has issued several rulings against the prosecutors already, could easily decide to end the case without any presentation from the defense or consideration by the jury. It would be a major triumph for Bonds and his lawyers and a pathetic end to the eight years of the BALCO investigation.

With the reduction in the charges against Bonds, is it possible that the prosecutors and the Bonds lawyers could settle the case with a plea bargain?

No. There is no reason for Bonds to consider a bargain even if the prosecutors agreed to a plea of guilty on a single charge with no jail time. Anderson's refusal to testify and Illston's rulings leave Bonds in a position where he can confidently expect to win at the trial. Although a verdict of not guilty is no certainty (it never is), it is sufficiently likely that Bonds will be willing to take his chances in a San Francisco courtroom. Bonds has been defiant throughout the investigation and was assertive in his testimony before the grand jury. There is no reason for him to consider a plea bargain when all the momentum in the case is moving in his direction. As long as Anderson remains steadfast in his refusal to testify against Bonds, there will be no plea bargain.

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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