- Lester Munson, Legal Analyst
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It wasn't the testimony from a former girlfriend about sexual dysfunction. It wasn't the allegations of steroid use from his former business manager. And it wasn't the eyewitness account from a former personal shopper about an HGH injection.
No, it was Barry Bonds himself who made the damaging statements that resulted in his conviction Wednesday for obstruction of justice.
In four hours of testimony before a grand jury in San Francisco in December 2003, Bonds rarely offered a direct answer to a direct question. When prosecutors tried to interrogate him about BALCO and steroid distribution, he tried to avoid any conclusive answers. He rambled into discussions of his father's terminal illness. He offered his ideas on the obligations of friendship. He explained that he was reluctant to talk baseball and would rather talk fishing. And he offered bizarre, often incoherent, theories on his life as a "celebrity child."
Many observers noted that the prosecutors' questions were frequently awkward and clumsy. They were. But the jury that reached a decision Wednesday noticed something else: That Bonds was evasive and misleading in his answers, which is exactly what Count 4 in the indictment had accused him of.
Once jurors realized that, their work was done.
The unanimous verdict that Bonds was guilty of obstruction of justice is a major triumph for federal agent Jeff Novitzky and prosecutors Jeff Nedrow and Matthew Parrella. It is also a bit of an upset. The members of the federal team started the trial with two strikes against them. Greg Anderson, Bonds' personal trainer, refused to testify for the government. If he had testified, its case against Bonds likely would have been overwhelming.
But his refusal to testify and his willingness to go to jail to help Bonds left Novitzky and the prosecutors with major obstacles. Without Anderson to identify the positive drug tests, the drug calendars, the syringes and the vials of steroids that the Novitzky-led agents had seized in their lightning raid on Anderson's house, a powerful case for the prosecutors became a difficult, almost impossible case.
The federal prosecutors were forced to rely on the testimony of two dubious witnesses, Kimberly Bell, the mistress whom Bonds dumped after a nine-year romance, and Steve Hoskins, the business manager whom Bonds fired after suspecting Hoskins of theft and fraud.
But prosecutors Nedrow and Parrella did what they could with what they had. They were up against a formidable Bonds legal team, seven lawyers led by Allen Ruby and Cristina Arguedas, two of the finest trial lawyers in California. The defense lawyers demonstrated prodigious preparation for the trial, obtaining pretrial rulings from U.S. District Judge Susan Illston that did heavy damage to the prosecution.
Arguedas was so confident of victory during the trial that she once suggested that the government would have dismissed the case if prosecutors had followed rules governing disclosure of witnesses and evidence before trial. "If we knew before the trial what we know now [about Bell's two conflicting diaries], they would have dismissed this case," she shouted indignantly to Judge Illston.
In her final argument to the jury, Arguedas pointed to the prosecutors, accused them of misconduct, and asked, "Why are we even here?"
I've been around lawyers and judges for more than 30 years, and I have never before seen that level of scorn and contempt for agents and prosecutors who were doing what they could to enforce the nation's laws.
When the trial ended on Wednesday, however, the reasons for the prosecution were apparent. In their report to the judge, the jurors made it very clear: Bonds was guilty of a serious felony. The defense team was not victorious on even one of the four counts of the indictment. In a case that many observers expected Bonds to win, he and his lawyers went 0-for-4. There were jurors who wanted to convict Bonds on all four counts, but the jurors were unanimous only on the obstruction of justice count.
The conviction came more than seven years after Bonds appeared before the grand jury, and it appears to mark the end of the BALCO investigation, the most important probe into the use of performance-enhancing drugs in the history of sports.
In her final argument to the jury, Arguedas told the jurors that the federal effort was not "worth the time and the money they have expended." The jurors clearly did not agree with that assertion.
A close look at the history of the Bonds prosecution shows that the enormous efforts by the Bonds legal team added years to the process. The lawyers filed hundreds of pages of papers known as "motions in limine." These motions demanded that Judge Illston issue her rulings on trial evidence in advance of the trial. The Bonds lawyers wanted evidence suppressed even before it was presented.
In an ordinary case, there may be one or two motions in limine. The Bonds lawyers filed at least 12, each of them meticulously briefed and argued, and each of them causing trial delays.
When Judge Illston agreed with the lawyers and eliminated BALCO business records, drug calendars and drug tests from the trial, the prosecutors had no choice but to appeal to the notoriously slow U.S. Court of Appeals for the 9th Circuit. It was yet another delay.
Even after years of litigation and the preparation of thousands of pages of legal documents, there is a significant point to be derived from the prosecution's victory.
Any citizen who is caught up in a federal investigation is obligated to tell the truth when federal agents show up to ask questions. It is a fundamental duty of citizenship, and it is the foundation of any federal investigation. A failure to tell the truth is an attack on the federal justice system and should be prosecuted. Most agents and most prosecutors view a failure to tell the truth as something that is almost personal.
If agents and prosecutors looked the other way when Bonds or any other witness offered evasive and misleading testimony, it would damage the entire justice system. The jury's verdict upholds the integrity of that system, and it is worth the time, money and effort that Novitzky, Nedrow and Parrella invested.
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.
Defense team tried hard, but jury's decision validates government investigation