- Lester Munson, Legal Analyst
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SAN FRANCISCO -- Thursday marked another day of surprises in the Barry Bonds perjury trial.
Prosecutors Jeff Nedrow and Matthew Parrella performed brilliantly in their final arguments before the jury that will decide whether Bonds lied to a grand jury about his use of performance-enhancing drugs. They might have succeeded in bringing a troubled prosecution back to life.
And the top-of-the-line Bonds legal team offered an unexpectedly disorganized and occasionally pedantic argument that included dubious attacks on the good faith and the integrity of the agents and the prosecutors who have worked on the Bay Area Laboratory Co-Operative investigation since 2002.
Nedrow set the tone for the prosecutors when, in a quiet but firm voice, he told the jurors that "all [Bonds] had to do was tell the truth." It was a leadoff double. Parrella, in his final words to the jurors after 4 hours and 40 minutes of rhetoric from the two teams of lawyers, told them, "He was too weak to tell the truth." In case anyone had missed the point, Parrella added that it was ironic that "these substances that were supposed to make him strong made him weak."
Between Nedrow's opening and Parrella's final words, they explained that, unlike other athletes subpoenaed to testify before the grand jury, Bonds "lied because he had a secret." The secret was, of course, the prosecutors said, steroid cycles that Bonds began in 1999 as he began his assault on home run records.
It was important to prosecute Bonds for his lies, Nedrow said, because "deceit distorts justice." He explained that the criminal justice system and the investigation into possible PED distribution by BALCO founder Victor Conte and Bonds personal trainer Greg Anderson depended on truthful cooperation from anyone involved.
Nedrow used a big screen to display critical witness testimony and important exhibits to the jury at exactly the right moments without breaking the momentum of his argument. The same technology seemed to baffle the Bonds lawyers later, as they stopped frequently, staring at a blank screen waiting for the right document or the correct page of testimony. Allen Ruby, Bonds' lead lawyer, twice moved to a different point of argument when his tech staff failed to display what he wanted.
In a succinct and quietly compelling summary of the prosecution's evidence, Nedrow connected bits and pieces of the government evidence in new and persuasive ways. The prosecution's worst setback in a series of setbacks during the trial was the testimony of Dr. Arthur Ting, Bonds' personal orthopedic surgeon. In a surprise for the prosecutors, Ting denied that he ever told Steve Hoskins, Bonds' former business manager, that an elbow tendon injury Bonds suffered in 1999 was the result of steroids use. When Ting made the surprise statement in court, the prosecutors did not respond.
But in his argument Thursday, Nedrow dug favorable information out of a photocopied medical text Ting had sent to Hoskins in 1999. The language of the text, displayed at the right moment on the big screen, stated categorically that an elbow tendon injury could result from steroidal buildup of arm muscles.
Parrella nailed the point later when he reminded the jury that Ting had done the photocopy of the text for Hoskins at the same time as the surgery. Explaining why Ting might testify in contradiction to the medical text, Parrella reminded jurors that Ting told them that he personally went to Bonds' house to draw blood for blood tests.
"He's a celebrity doctor," Parrella said. "He goes to their house. He was trying to soften the blow for his celebrity patient."
It was an impressive rally from Ting's damaging earlier testimony.
Nedrow and Parrella also made good use of a black, leather shaving bag that Anderson apparently made into a PED injection kit. Federal agents, led by Jeff Novitzky, seized the kit in a lightning raid on Anderson's house in 2003. Showing it to the jury, the prosecutors listed their evidence of Anderson injecting Bonds, something Bonds denied to the grand jury. Parrella even warned the jurors to be careful as they looked at the kit, which is still stuffed with syringes and needles.
In one of his final and most effective flourishes, Parrella gave the jury a new look at prosecution witness Kimberly Bell, a Bonds mistress for years, who was subjected to a brutal cross-examination by Cristina Arguedas, one of Bonds' attorneys, after she told the jury that Bonds had described his PED use to her in 1999.
Reminding the jurors of Bonds' escalating rage toward Bell, Parrella described Bonds' threats. Parrella told the jury that Bonds had told Bell "he would cut off her head and throw her in a ditch," and that he told her he would personally "cut out her breast implants because he had paid for them."
He was the "only one who was allowed to get angry," Parrella said. He "managed his relationship with her with anger." And, Parrella said, attorney Arguedas used "anger in her cross-examination of Ms. Bell -- the only time there was ever any anger displayed to any witness in this trial." In her cross-examination, Arguedas stomped angrily around the courtroom and frequently threw documents at Bell instead of handing them to her.
Although Ruby and Arguedas are skilled trial advocates, neither was at the top of his or her game Thursday. One problem was they inexplicably divided their argument into three segments with Ruby leading off. Arguedas then argued, with Ruby making final statements for the defense. Both lawyers kept looking at their watches during their portions of the argument and made lame jokes about their remaining time.
Ruby started the defense summation with this statement: "Materiality is counterintuitive." Arguedas started her segment with repeated use of the word "recusal." Both materiality and recusal have their roles in trials, but neither word is a word that draws the attorney closer to the jurors.
It is not clear what Ruby was trying to do with "materiality." He told the jurors that the prosecution had failed to explain to them the function of a grand jury and that therefore the government had failed to prove its case. The jury, which begins its deliberations Friday, has 300 pages of grand jury transcripts and two indictments returned by grand juries, and has been listening to testimony about the BALCO grand jury for two weeks.
These jurors know more about grand juries than many law students, but Ruby somehow thought grand jury "materiality" would benefit Bonds in his effort to obtain an acquittal.
The repeated mention of "recusal" by Arguedas was an attempt to attack the government agents for what Arguedas thought was a "conflict of interest" that existed when the IRS was investigating BALCO and Bonds and the FBI was investigating a complaint Bonds had made about Hoskins. The BALCO agents issued a "recusal" from the Hoskins investigation and sent it to Seattle. Arguedas saw it as a conspiracy among federal agents to use Hoskins to get Bonds.
That wasn't the only Ruby-Arguedas attack on the integrity of the BALCO investigation. Ruby began one sentence with the phrase, "If this was a legitimate investigation." He tried to convince the jurors that the federal prosecutors had tried to "intimidate Bonds before the grand jury," a risible claim for anyone who has watched the occasionally bumbling Nedrow and the frequently glowering Bonds in court for the past three weeks.
Arguedas referred to the prosecutors as "these people," waving her arms and demanding to know, "Why are we even here?" In one of her many attacks on Bell, Arguedas accused her of "mortgage fraud" and wondered why she was not charged with a crime.
In her cross-examination of Bell, Arguedas had confronted her with mistakes on certain pages in a stack of mortgage documents. Any juror who has recently refinanced or obtained a mortgage will remember the documents. There is a big stack of them, and the procedure is to "sign here" until you are finished with them. It would be hard to imagine a federal prosecution based on any mortgage application documents.
Arguedas also accused the prosecution of presenting "perjury" in Bell's testimony. Confronted with grand jury testimony in which she said Bonds' testicles had decreased to "half their size," Bell admitted that it was an exaggeration. But, as Arguedas must know, it would be a long leap from hyperbole in testimony about testicles to an indictment for perjury.
The biggest challenge for Ruby and Arguedas was to find a way to challenge the eyewitness testimony of Kathy Hoskins, Bonds' former personal shopper and Steve Hoskins' sister, who said she saw Anderson inject Bonds in his abdomen, something Bonds denied in his grand jury testimony. The lawyers needed to do something to respond to Kathy Hoskins, the most compelling witness in the trial.
But the best the lawyers could say was Ruby's statement that, "I am sure that she loves her brother." It was an attempt to suggest she was testifying only to support Steve's attempt to gain revenge on Bonds for firing him. The Kathy Hoskins testimony remains the government's most powerful evidence.
As the jury begins its deliberations, it would be no surprise if the jurors started their discussions with Nedrow's statement, "All he had to do was tell the truth." After stumbling repeatedly during the trial, the prosecutors had a big inning Thursday. Will it be enough to convict Bonds? It might, and it would be yet another surprise.
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.
The prosecution rallied during closing arguments as the defense had a weak final day.