Commentary

The Bonds trial X factors

Five points in the Bonds perjury trial that could become deciding factors

Updated: March 23, 2011, 2:39 PM ET
By Lester Munson | ESPN.com

Trials can be difficult to predict, but there always are crucial moments in the process. Here are five points in the Barry Bonds perjury trial that could become deciding factors leading to a conclusion of guilt or innocence:

Attitude of Judge Illston

At least until a few recent rulings that favor the government, Illston had not seemed particularly pleased with the prosecution's efforts. The government was forced to rewrite its indictment three times, with Illston suggesting that the prosecutors' questioning of Bonds in the grand jury and their attempts to describe it in the indictments did not measure up to accepted standards. Even worse for the government, she surprised prosecutors and experts with a series of rulings that bar major portions of evidence that were expected to be used against Bonds. As well, in two previous BALCO-related perjury cases in which the defendants were found guilty, she refused to impose prison sentences.

[+] EnlargeJeff Novitzky
AP Photo/Jeff ChiuDefense attorneys are likely to assert that federal investigator Jeff Novitzky and the prosecutors have trampled on the rights of ballplayers and others.

But perhaps the most accurate measure of Illston's attitude came in a related case: She ruled that lead agent Jeff Novitzky and his team of agents broke the rules when they raided labs in April 2004 and grabbed test results and urine samples that had been collected as part of Major League Baseball's 2003 testing for steroids. In unusually harsh language, she ripped Novitzky, saying: "I think the government has displayed a callous disregard for constitutional rights. … I think it's a seizure beyond what was authorized by the search warrant [approved by another judge] and, therefore, violates the Fourth Amendment."

Cross-examination of Kimberly Bell

The success of the government's case depends in a major way on the veracity of Kimberly Bell, a girlfriend who was with Bonds for nine years -- a relationship that continued for a time after he married his current wife. The challenge for the Bonds legal team will be to attack Bell as a woman scorned and intent on revenge, without bullying her and developing sympathy for her among the jurors. The lawyers will face the same challenge when they confront Bonds' former personal manager, Steve Hoskins, and Bonds' former personal assistant, Kathy Hoskins (Steve Hoskins' sister). For Bonds, these cross-examinations are critical. If his lawyers can convince the jury that these witnesses are shading the truth to gain revenge because of what Bonds did to them, the defense can succeed in obtaining a verdict of not guilty. In a somewhat surprise ruling, Illston recently opened the door for Bell and others to testify about alleged physical and emotional changes they claim Bonds underwent as a result of steroid use. That would include Bell's testimony of anger and threats toward her. As well, Bell is expected to recount issues related to Bonds' sexual performance and supposed testicular atrophy.

Claim of government vendetta

It is increasingly fashionable among progressives and various big thinkers to view the BALCO investigation as a wasteful investment of federal resources. Their arguments include assertions that Novitzky and the prosecutors have trampled on the rights of ballplayers and others, and that Bonds is somehow the victim of a "perjury trap." What was once viewed as a masterly probe of a threat to the integrity of both Olympic and professional sports has become to some people a Guantanamo-like shredding of the Constitution. The government's recent efforts directed at the wife and mother-in-law of Bonds' former trainer, Greg Anderson, have fueled the fury of the BALCO critics.

Watch for Bonds' lawyers to channel some of these thoughts and feelings in an effort to transform the surly slugger into a victim. It's likely to be a part of their cross-examination of Novitzky, the agent who led the effort, picked through BALCO's garbage for a year in search of evidence and grabbed the 2003 MLB urine samples that led to the Alex Rodriguez revelations and will be a significant piece of evidence in this trial. If the lawyers can convince the jury that Novitzky and his team were on a vendetta, Bonds will win.

Bonds' demand for a directed verdict

[+] EnlargeBarry Bonds
Jon Kopaloff/Getty ImagesBonds was all smiles in this photo taken after the 2008 season.

In most trials, it's a perfunctory procedure that goes unnoticed. It comes at the end of the prosecution's case. The defense lawyers tell the judge that the prosecutors have failed to put in a complete case. There is so little evidence, the defense lawyers say, that the jury should not even be permitted to consider a verdict. It is a motion that is almost never granted. But in the Bonds trial, it could be critical. With most of the documentary evidence excluded by Anderson's refusal to testify, if Bonds' lawyers succeed in their attacks on Bell and the Hoskinses, they will be close to obtaining the directed verdict that is every defense lawyer's fantasy. By convincing Illston that something is wrong with the prosecutors' use of the 2003 MLB drug test, the case could come to a quick end. Illston could grant the motion for a directed verdict, and Bonds could walk out of the courtroom in triumph.

Possible testimony from Bonds

Will Bonds testify? Probably not. His legal team will not make a final decision until it sees whether the government has any success in putting in its evidence. Bonds claims he never knew he was taking steroids and other performance-enhancing drugs. He testified that he did what his trainer told him to do, and that he thought he was merely taking flaxseed oil and an arthritis cream. His lawyers will try to show the jury that Bonds knew nothing -- without having Bonds take the stand. That way, they can avoid the possibility of a cross-examination that could allow prosecutors to portray Bonds as a liar who transformed himself with PEDs. If Bonds testifies, he likely will open doors that he and his lawyers would prefer to leave closed.