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Posted: Thursday January 29, 2009 2:28PM; Updated: Thursday January 29, 2009 8:57PM
Michael McCann Michael McCann >
SPORTS LAW

Latest Bonds development may not be as damning as you think

Story Highlights

A failed drug test does not prove that Bonds knowingly used steroids

Bonds may be able to prevent the admission of some or all of the test results

Bonds has argued that questions posed to him while under oath were unclear

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Barry Bonds
Barry Bonds has been charged with 11 counts of perjury and obstruction of justice.
AP

The New York Times reports today that federal prosecutors have obtained evidence linking Barry Bonds to additional types of performance-enhancing drugs than previously known. Bonds has already admitted using tetrahydrogestinone, better known as THG or "The Clear," and "The Cream," which is a composition of testosterone and epitestosterone, but he insists he did not know they were steroids. He instead contends that he simply took whatever his former trainer, Greg Anderson, gave him while assuming that the substances were benign, such as flaxseed oil. Today's news indicates that prosecutors intend to show that Bonds used other steroids as well and, presumably, that he lied about them while under oath.

On the surface, news that prosecutors possess other implicating test results would seem to bode poorly for Bonds. The more evidence linking Bonds to additional types of steroids, the less plausible his explanation of ignorance becomes. After all, would the same player whose workout regimen and eating habits have been championed really not know that he was ingesting a bevy of potentially harmful steroids and other performance-enhancers?

To be fair, however, a failed drug test does not prove, beyond a reasonable doubt, that Bonds knowingly used steroids. To prove perjury, prosecutors must establish that Bonds knowingly lied under oath, meaning a jury would be unlikely to convict Bonds if any of its members believed that Bonds did not fully know what he was taking. Put more starkly, the government could prove that Bonds used every steroid and performance-enhancer known to mankind and that he lied about doing so while under oath, and yet Bonds could still escape conviction on perjury charges.

Moreover, Bonds and his counsel may be able to prevent the admission of some or all of the test results. Earlier this month, his counsel filed a motion seeking to exclude the admission of blood and urine test results on grounds they were tainted during the government's raid of the BALCO facility. U.S. District Court Judge Susan Illston, who will preside over the trial set to begin on March 2, 2009, is unlikely to exclude all of the evidence in question, however.

In addition, Bonds and his counsel have argued that questions posed to Bonds while under oath were unclear and imprecise, meaning that even if he answered them in ways that were untruthful, he may not have done so knowingly. Keep in mind, wording employed by the government in its investigation and prosecution of Bonds has already drawn rebuke. Judge Illston, for instance, twice ordered prosecutors to reword their indictment against Bonds due to concerns about the quality of questions posed to him and the wording of the charges brought against him.

To say the least, the upcoming trial of Barry Bonds is shaping up to be one of the most significant sports-related trials ever.

SI.com legal analyst Michael McCann is a law professor at Vermont Law School and the distinguished visiting Hall of Fame Professor of Law at Mississippi College School of Law. He is a former chair of the Association of American Law Schools' Section on Sports and the Law.

 
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