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Posted: Wednesday May 14, 2008 2:10PM; Updated: Wednesday May 14, 2008 2:10PM
Michael McCann Michael McCann >

Changes to Bonds indictment have been expected for some time

Story Highlights
  • This new indictment is not a major turning point
  • The indictment now lists each count of perjury separately
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Barry Bonds
Barry Bonds has now been charged with 14 counts of perjury and one count of obstruction of justice.

The new indictment against Barry Bonds was expected and does not represent a major turning point in the government's case against him.

Two months ago, U.S. District Court Judge Susan Illston deemed the government's original indictment to be duplicitous, meaning that it unlawfully charged Bonds with two or more distinct offenses in a single count. By rule, each count should allege only one distinct offense, such as one instance of Bonds allegedly committing perjury rather than multiple instances of him allegedly doing so. The problem is relatively easy to correct by separating the charges into additional counts, which is what the government has done in its new indictment against him.

Bonds' legal team will now likely seek permanent dismissal of the new indictment. In most cases, however, judges are very reluctant to dismiss an indictment and do so only under exceptional circumstances. The case will likely continue and appears headed for a trial later this year.

The case against Bonds is no slam dunk. The government must prove, beyond a reasonable doubt, not only that Bonds lied to a grand jury, but that he did so knowingly and unequivocally about a material matter and in response to a clearly-worded question. During the grand jury proceeding, Bonds repeatedly insisted that he never knowingly used steroids or human growth hormone ("HGH") and that, to his knowledge, his personal trainer, Greg Anderson, never provided him with those substances.

Put another way, even if Bonds repeatedly used steroids and HGH over a period of years, that fact, in and of itself, would not establish perjury. The government would need to completely convince a jury that Bonds knowingly used them and thus knowingly lied to the grand jury. If he can raise reasonable doubt by stating that he thought the performance-enhancing substances were merely flaxseed oil, vitamins, or other benign material, then the government would likely fail to establish, beyond a reasonable doubt, that he knowingly used illegal substances.

The government has a mixed bag of evidence in its case against Bonds. In its favor, it possesses documents seized from a raid on BALCO in 2003 and from Anderson's apartment that purportedly detail Bonds' financial transactions and usage patterns relating to steroids. Then again, Bonds would likely attempt to explain away the evidence by maintaining that he thought he was purchasing and using legal substances. He could also highlight the role of Anderson as an apparent intermediary between Bonds and BALCO.

Similar reservations cloud Bonds' alleged positive test results from the BALCO labs. To be sure, those results, if they indeed exist and if they specifically identify Bonds, would offer damaging evidence that Bonds used steroids. But if Bonds could persuasively stick to an "I had no idea they were steroids and HGH" storyline, then any positive results would not necessarily establish that he knowingly lied under oath.

The government may nonetheless feel emboldened by the recent conviction of another alleged BALCO client, former U.S. Olympic cyclist Tammy Thomas, on perjury and obstruction of justice charges. Though the trial against Thomas shared a number of characteristics to the one facing Bonds (i.e., it concerned a star athlete who allegedly purchased steroids from BALCO and who allegedly lied to a grand jury about it, was tried by a number of the same prosecutors, and was presided over by the same judge) it also, as discussed on last month, presented a number of key differences, most notably in the quality of evidence against Thomas. In short, the government appeared to have a stronger case against Thomas than it has against Bonds, particularly in regards to physical evidence, corroborating witnesses, and the existence of an intermediary between the player and BALCO (i.e., Anderson). In addition, Thomas is poised to appeal the verdict, meaning the jury's conviction of her could ultimately be overturned by an appellate court.

Bonds' legal team may also use the Thomas trial to help prepare for a case against Bonds, particularly given that it involved the testimony of IRS special agent Jeff Novitzky, who has investigated BALCO for money laundering and who would likely testify in a trial against Bonds. Any material inconsistencies in Novitzky's statements would likely be targeted by Bonds' legal team to evidence weaknesses in the case against its client.

Michael McCann is a law professor at Mississippi College School of Law and Chair of the Association of American Law Schools' Section on Sports and the Law.

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