- Lester Munson, Legal Analyst
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SAN FRANCISCO -- In their questions, their objections and their speeches, the lawyers defending Barry Bonds against charges of lying to a grand jury have tried again and again to attack the integrity of the prosecution.
They don't use words like "misconduct" or "tampering with evidence." Their attacks on the prosecutors and the agents are more subtle. But their intent is clear as they ask witness after witness about their pretrial meetings with federal agents and prosecutors and as they try to find a flaw in the processing of a drug test that showed Bonds using steroids and a masking agent in 2003.
The attacks began with the government's first witness, Jeff Novitzky, the relentless and effective FBI agent who led the BALCO investigation. Allen Ruby, the leader of the Bonds legal team, asked Novitzky to describe his pretrial meetings with government witnesses to prepare them for their trial testimony. How often did you meet? How long did you talk? Did you show them documents? What documents?
As he asked the questions, Ruby was trying to give the jury the impression that there was something wrong with a federal agent meeting with a witness before a trial to prepare for trial testimony. Ruby demanded to know whether Novitzky had prepared "reports of [his] meetings." The clear implication was that Novitzky should have prepared reports.
When Novitzky replied that he had prepared no reports of these meetings, Ruby put on a look of incredulity that Colin Firth and Robert Duvall would envy. Novitzky calmly explained that there was no federal requirement for reports of pretrial meetings. That drew another one of those looks from Ruby.
As Steve Hoskins, Bonds' former business manager, and Kimberly Bell, Bonds' former mistress, testified, the Bonds legal team returned to the pretrial meetings. The Bonds lawyers wanted the details of each meeting, trying again to impress the jury with the idea that there was something nefarious about a pretrial session involving federal agents and a witness.
It's the kind of thing defense lawyers like to do. If they can convince one juror that the federal agents did something wrong, it can lead to a deadlocked jury and a win for the defense. But it does not often work. The principal reason it normally does not work, and will not work in the Bonds case, is that U.S. District Judge Susan Illston will tell the jurors in her instructions that prosecutors and agents are entitled to interview witnesses before trial.
The Bonds lawyers would have had a chance for success in this maneuver if, just once, they showed that the pretrial meeting led to a change in the witness' testimony. But, despite their meticulous searches through thousands of pages of BALCO documents, the lawyers have not yet found a change in any witness' testimony.
In an investigation that began back in 2002, it is imperative for prosecutors and agents to meet with their witnesses and to allow them to refresh their recollections with reviews of their earlier statements. Most of them are testifying now about things that happened in 2003 and 2004.
In addition to their suggestion that prosecutors and agents have somehow tampered with witnesses, the Bonds legal team has forced the prosecution into an elaborate proof on a urine sample that Bonds gave during the 2003 MLB steroid survey testing.
When the Bonds sample was tested in the MLB lab, it showed no evidence of performance-enhancing drugs. But when Novitzky had the sample retested at the UCLA Olympics drug laboratory as part of his investigation, the lab discovered two steroids and a masking agent that were not included in MLB's testing process. It is the centerpiece of the government's case against Bonds.
The chain of custody of a urine sample that has traveled to Las Vegas and to Los Angeles to be tested in two laboratories is tricky. But, in the pretrial preparation, the Bonds lawyers could have determined whether it was flawed. In the absence of any gaps in the chain of custody, they could have agreed that the processing of the sample had been done correctly.
But, instead of agreeing to the validity of the chain of custody, the defense lawyers insisted on proof of every step in the process, leading to a parade of 10 witnesses and an exhausting and boring day on Wednesday for the jury. The judge was yawning. Her law clerk had her head back on the wall with her eyes closed. The jurors were moving restlessly in their chairs trying to focus on testimony that included words and phrases such as "accession," "aliquot," "desiccation," "isotope ratio," and "mass spectrometry." The crowd in the courtroom diminished with each witness.
Although the Bonds attorneys offered some cross examination of the 10 witnesses from the IRS, Quest Diagnostics, and the UCLA lab, they failed to show any problems with the handling of the sample.
Like the meetings with the witnesses, it is the kind of thing that can work for someone accused of a crime, but there must be a dramatic flaw in the chain. With seven lawyers working on the issue, the Bonds team found nothing.
The Bonds lawyers have scored some points during the seven days of the trial. But, in their attacks on the integrity of the investigation and on the processing of the urine sample, they have yet to score.
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.
44mMarc Stein and Tim MacMahon
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