- Lester Munson, Legal Analyst
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SAN FRANCISCO -- If the federal courts had a kind of "mercy rule" that is used in youth sports, U.S. District Court Judge Susan Illston would have been forced to invoke it on Thursday after Barry Bonds' personal orthopedic surgeon, Arthur Ting, all but destroyed the government's perjury prosecution.
Prosecutors Jeff Nedrow and Matthew Parrella made what appears to be a fateful decision when they chose to offer Ting as a witness against Bonds. It must have been a difficult decision for the prosecutors, but the result was even worse than anything the prosecutors could have imagined.
The government's hope was that Ting would somehow support its allegation that Bonds lied to a grand jury in December 2003 when he denied using steroids. They were relying on Ting's testimony to the same grand jury. The transcript of his testimony to the grand jury is 130 pages long.
Instead of supporting the prosecution theory that Ting knew Bonds was using steroids and had discussed it with Bonds and his former business manager, Steve Hoskins, Ting offered testimony that was a gift for Bonds. Surprised and flummoxed, prosecutors were unable to do any of the things that they could have done to respond to Ting.
It was apparent early in Ting's answers to questions from Assistant U.S. Attorney Jeff Nedrow that he was not happy to be in court testifying against his patient and in support of the prosecutors. Hoskins had told the jury last week that Hoskins and Ting discussed Bonds' use of steroids on "at least 50 occasions." Ting denied it, claiming that he had only one conversation with Hoskins about steroids and that it did not involve Bonds.
Despite the surprise answers from Ting, Nedrow pushed forward, attempting to get Ting to describe a conversation that Ting overheard at Bonds' home between Bonds and personal trainer Greg Anderson. Nedrow wanted to show the jury that Bonds was warning Anderson not to discuss steroids in the presence of Bonds' father, Bobby Bonds. Ting was willing to respond to Nedrow with testimony that he heard Bonds say to Anderson, "Don't say anything." That is as far as Ting would go.
Ting's reluctant answer forced Nedrow to use Ting's grand jury testimony to "refresh his recollection" in an effort to expand upon the story of the Anderson-Bonds conversation. Nedrow asked Ting to review the transcript of Ting's earlier testimony. Ting read the transcript and then grudgingly agreed that in his earlier account he said he heard Barry Bonds say to Anderson, "Don't say anything to my dad."
It was a clear signal to Nedrow and to a packed courtroom that Ting was not saying what Nedrow expected him to be able to say in support of the prosecutors' case.
When Bonds attorney Cristina Arguedas cross-examined Ting, the small thing became a disaster. Ting contradicted most of what Hoskins had earlier told the jury. He denied any conversations with Hoskins about Bonds and specific steroids. He denied explaining the danger of frequent injections to Hoskins, as Hoskins had claimed.
Most importantly, Ting denied a conversation with Hoskins after Ting operated on Bonds' left elbow in 1999. Hoskins had earlier told the jury that Ting told him that the injury Bonds repaired in the surgery "could only have come from use of steroids."
That conversation never happened, according to Ting's testimony on Thursday.
That was not all. The damage continued in a 39-minute cross examination that gave Bonds nugget after nugget of powerful evidence.
A key element of the prosecution is that Bonds showed the side effects of steroids, things like acne on his back, sexual dysfunction, bloating, weight gain and facial changes. Ting told the jury in response to Arguedas' questions that all of these side effects would have resulted from corticosteroids that Ting had personally prescribed for Bonds to help him recover from the eight surgeries he had performed on Bonds.
Arguedas supported Ting's assertion on the side effects with artful use of FDA labels of the corticosteroids and a report from the National Institute of Health. It was a powerful response that seriously damaged the government's prosecution.
As the damage piled up, the prosecutors must have known that that they needed to do something. But their response to the damage amounted to very little.
What could they have done? When a witness surprises the lawyer who presents the witness, the lawyer can then ask for permission from the judge to treat the witness as adverse and be permitted to use cross examination techniques on the witness.
Rule 607 allows lawyers in federal cases to do exactly what Nedrow should have done. It allows him to ask leading and confrontational questions in a manner not permitted when he first presents the witness as his own witness.
Using cross examination techniques, Nedrow could have confronted Ting with the contradictions between his grand jury testimony and his testimony on Thursday. He could have confronted Ting with his problems with the board that governs doctors in California. Ting just completed a five-year term of probation for "unprofessional conduct" that included prescribing unauthorized drugs for athletes. And he could have confronted Ting with media reports of his son's steroid use that resulted in the younger Ting leaving the USC football team.
The other option for the prosecutors would have been to eliminate Ting from their list of witnesses. It would have forced the Bonds legal team to bring Ting into the courtroom as its witness, again allowing Nedrow to cross examine Ting.
It may not be over for the prosecutors. The Bonds lawyers are on the warpath and are demanding notes and other materials from prior meetings they said prosecutors had with Ting outside of grand jury testimony. If those meetings occurred and prosecutors relay to defense attorneys information that could have been helpful to the defense, it could be a problem. Judge Illston was clearly unhappy with the possibility of that Thursday and may have more to say to prosecutors when the trial resumes on Monday.
For the prosecution, there isn't really an effective way to rally from Thursday's disaster. The only hope for salvaging the case is to put together a final argument to the jury that will use the government's strengths (multiple mentions of Bonds and steroids, the 2003 MLB drug test, and Kathy Hoskins' eyewitness testimony of an injection) in a tour de force that will lead to conviction. It would be difficult, but it can be done.
The prosecutors are fortunate that they have three days to put things together.
Calling Ting to testify is one of those things that must have seemed like a good idea at the time. But the prosecutors' decision to present him as their witness may have destroyed impressive efforts they had made with their previous 22 witnesses.
If this had been a prize fight, it would have been stopped as a TKO.
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.
Prosecution calls witness whose testimony causes big problems for its case.