Commentary

Prosecution swings and misses

Approaches to witness testimony on Tuesday limit opportunities to impact jury

Updated: March 29, 2011, 9:39 PM ET
By Lester Munson | ESPN.com

SAN FRANCISCO -- In their effort to persuade a San Francisco jury that Barry Bonds lied about his use of steroids, federal prosecutors on Tuesday touched lightly on material that could have been powerful evidence of Bonds' guilt. And they offered testimony from three former baseball players that was dramatic but may ultimately be ineffective.

An examination of the two prosecution offerings and analyses of their effectiveness:

[+] EnlargeJason Giambi
AP Photo/Jeff ChiuJason Giambi signs an autograph for a fan as he left a federal courthouse after testifying in the perjury trial of former baseball player Barry Bonds.

Opportunity squandered

In October 2003, less than two months before Bonds was scheduled to testify before the grand jury investigating BALCO and steroids, he walked into the office of Stan Conte at what was then known as Pac Bell Park.

As Conte described it to the jury, Bonds wanted to talk. He wanted to talk about the investigation and his personal trainer Greg Anderson. Conte did not want to talk. Conte told the jury that he asked Bonds to end the conversation and suggested to Bonds that they should not be discussing things because both were under subpoena to testify before the grand jury.

Bonds ignored Conte's warning, and the conversation went on for 15 minutes, Conte testified. It was 15 minutes of powerful material for the prosecutors. With Anderson refusing to testify for them in the Bonds prosecution, they are desperate for any piece of evidence they can use about Anderson's dealing in steroids and human growth hormone.

But, inexplicably, prosecutor Matthew Parrella spent less than five minutes asking Conte about the conversation. Conte told the jury that Bonds felt the federal probe was unfair and that Anderson was dealing in steroids only to help support his children.

This was Bonds talking about Anderson dealing steroids. Bonds' answer to the charge of false testimony to the grand jury is that he did not know what Anderson was selling. Conte offered the best evidence of the entire six-day-old trial that Bonds knew exactly what Anderson was doing. And it came from a powerful witness, a veteran trainer with a Ph.D. in physical therapy who was able to answer questions directly and authoritatively.

Instead of pushing Conte for details of Bonds' description of Anderson's dealing, Parrella allowed Conte to drift into Conte's own ideas on steroids. Conte said his son was playing in the minor leagues and it was unfair for his son to be competing with steroidal players. It was all very interesting and gave Conte a chance to brag about his son, but it did not advance the prosecution's case against Bonds.

In the course of their 15-minute chat, there must have been additional details about Anderson's dealing that prosecutor Parrella could have highlighted for the jury with additional questions.

Bonds also told Conte about Anderson's drug calendars. Anderson was trying to protect other players, Bonds told Conte, by putting Bonds' initials on their drug calendars. It was yet another nugget of evidence that Bonds knew what Anderson was selling, but Parrella dropped the topic after a quick mention from Conte.

In addition to Anderson's dealing, Conte offered new evidence of the relationship between Bonds and Anderson. As Bonds complained to Conte about a federal raid on Anderson's home, Bonds told Conte that the $60,000 the agents found was money that belonged to Bonds.

According to Conte's testimony, Anderson was holding the money for Bonds. The money, Bonds admitted to Conte in their conversation, was for "Bonds' girls." Did Parrella ask about the girls? No. Everyone in the courtroom realized as Conte testified that the $60,000 was for Bonds' girlfriends and not for his daughters, but it would have helped considerably if Parrella had made it clear to the jury. If a prosecutor has some derogatory information about the man on trial, why wouldn't he exploit it?

When a prosecutor has a witness like Conte with both stature and information, the prosecutor should prolong the time the witness spends in front of the jury. Parrella seemed in a hurry to get rid of a top prosecution witness.

Dramatic but limited player testimony

Baseball's steroid era was demonstrated in melodramatic fashion when Jason Giambi, Jeremy Giambi and Marvin Benard told the jury of their use of performance-enhancing drugs. It was the first time that players have admitted steroid use under oath in public. But will it help the prosecution persuade the jury that Bonds lied to the grand jury?

The theory behind the testimony from the three players who testified on Tuesday and the four others who are expected to testify is that if these guys knowingly purchased steroids from Anderson, then Bonds must have knowingly purchased steroids from Anderson. The testimony from the other seven players is supposed to show that what Anderson did for them he must have done for Bonds.

It's a theory that might work, but there is a major problem. At the request of the Bonds legal team, U.S. District Court Judge Susan Illston is telling the jury again and again that they may not make the conclusion that the prosecutors want them to make.

In the homely prose of the courthouse, Illston told the jury twice on Tuesday the law "does not permit an inference that the defendant [Bonds] is engaged in conduct because others are engaged in that conduct."

The facts that the Giambi brothers and Benard bought steroids from Anderson and listened to his explanation of how and when to use them does not, Illston is telling the jury, mean that Bonds did the same thing. The judge is telling the jury that they cannot do what the prosecution wants them to do.

Illston's direction to the jury is the result of a judicial compromise between the positions of the Bonds lawyers and prosecutors. The Bonds team did not want any players in the courtroom, but the prosecution wanted them to testify as Anderson's customers. The law does not provide a clear answer to the question, so in a ruling before the trial began, she gave each side something. The prosecutors can use the seven players to try to show that Anderson was running a steroids business, but the defense lawyers can then say that the jury may not make the conclusion the prosecutors want them to make. And they'll have support from the judge.

It's the kind of thing that makes one wonder about the American courts and their decisions.

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.