If feds thought they could convict, they'd indict

There is only one reason Barry Bonds was not indicted by a federal grand jury Thursday, Roger Cossack says. The feds must believe they do not have enough evidence to convict him.

Updated: July 21, 2006, 1:44 AM ET
By Roger Cossack | ESPN.com

There can be only one reason Barry Bonds wasn't indicted by a federal grand jury Thursday: The feds must believe they don't have enough evidence to convict him.

The prosecutor only had to show that a crime was committed, then present a reason to believe that Bonds is the one who committed it. I think the problem the feds have is that their case is problematic without the testimony of Greg Anderson, Bonds' former personal trainer -- especially in San Francisco, where Bonds is greatly admired.

Anderson is the person alleged to have furnished Bonds with steroids, and the feds are in possession of logbooks taken from Anderson's computer they believe detail Bonds' use of the banned substances. But Anderson has refused to testify for the feds, spending the last two weeks in jail for his refusal.

There is nothing to stop the feds from subpoening Anderson again to testify before a new grand jury. If he refuses the next time, he can be jailed for the term of the new grand jury, which could last 18 months.

Generally, getting an indictment is easy. Grand jurors only hear from the witnesses the prosecutor puts before them. Neither the accused nor a defense attorney is present, so the grand jury doesn't hear a cross-examination.

But an indictment is not a conviction. A conviction comes only after the prosecution puts its evidence in front of a jury (in legalese, called a petit jury), cross-examination takes place and the defendant is given a chance to tell his or her side of the story. Finally, the jury must be convinced of the defendant's guilt beyond a reasonable doubt before it can convict anyone.

Two of the witnesses the feds reportedly have relied on in the grand jury proceeding would be easy targets for devastating cross-examination in a criminal trial. Kimberly Bell, who is said to be Bonds' ex-girlfriend, and Steve Hoskins, Bonds' former business partner, both have had a falling-out with him and would carry that baggage to the witness stand.

The feds need Anderson to testify.

Still, it should embarrass the U.S. Attorney's office to go through three years of investigation and untold taxpayer dollars and not be able to go forward with an indictment. Instead, it ends up with Thursday's weak statement that calls for the "grand jury to be able to hear truthful testimony."

It now seems the feds will be relying on Anderson to choose to testify in front of the next grand jury rather than spend a great deal of time in jail. The question is: Will jurors believe anything he says when they know how hard the feds squeezed to get him to talk?

Roger Cossack is ESPN's legal analyst.

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