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Posted: Wednesday February 18, 2009 12:46AM; Updated: Wednesday February 18, 2009 12:46AM
Michael McCann Michael McCann >

Prosecutors win jury selection objection in Bonds' perjury trial

Story Highlights

A judge ruled jurors in Bonds' case cannot be asked about Alex Rodriguez

Jurors will be asked questions to expose biases

If convicted, Bonds would likely serve time in prison

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On a day when Alex Rodriguez faced the media to answer questions about his admitted steroid use, Barry Bonds learned that potential jurors in his upcoming perjury trial cannot be asked their opinion of Rodriguez. Prosecutors had objected to the relevance of potential questions about Rodriguez on grounds that he bore no relationship to the legal charges against Bonds. U.S. District Court Judge Susan Illston agreed on Tuesday to exclude such questioning.

Judge Illston's decision sets the table for the screening of potential jurors, who will be drawn from the nine Bay Area counties. The selection process will include a questionnaire, which will likely feature more than 60 multiple-choice and fill-in questions. These questions will ask potential jurors for their basic characteristics (e.g., age, level of education, nature of any employment) as well as their views on Bonds-related matters, such whether they are baseball fans, have familiarity with potential witnesses or the BALCO investigation and agree or disagree with governmental agencies regulating professional sports for steroid use.

The questionnaire is designed to weed out potential jurors who are biased in favor or against Bonds; it will also inform attorneys of the ideological leanings and lifestyle preferences of persons who could serve. Attorneys are entitled to an unlimited amount of "for cause" challenges based on a potential juror's bias and also a limited number of preemptory challenges. Preemptory challenges are challenges to potential jurors for no stated reason, though they cannot be based exclusively on a person's race or gender. Eventually, 12 jurors and several alternates will be chosen for Bonds' trial, scheduled to begin on March 2.

An obvious concern for Bonds' counsel is identifying potential jurors who have not formed negative attitudes about their client. Even Bay Area residents with little interest in sports, let alone in the Giants, have likely heard about Bonds and the steroid allegations. And what they have heard is probably unfavorable: Most opinion leaders, radio hosts and bloggers have openly doubted, and sometimes mocked, Bonds' claims that he never used steroids. If it appears that no fair jury can be drawn from the list of potential jurors, Judge Illston could request additional potential jurors or even consider relocating the trial. Such moves are unlikely, however, and would risk delaying the trial's start. Besides, Californian jurors have been successfully selected for more sensational trials, including those involving O.J. Simpson (for murder), Robert Blake (also for murder), and Michael Jackson (for child molestation).

In addition to avoiding Bonds-haters, counsel for Bonds will seek jurors who are skeptical about the government's decision to prosecute Bonds. A libertarian-leaning person, for instance, might object to the expenditure of millions of tax dollars to prosecute baseball players who used substances to help hit home runs. While Bonds is not on trial for steroids per se, as his case concerns lying under oath, the charges against him would have never occurred but for the government's extensive investigation into BALCO and the interstate sale and distribution of steroids. Bonds' attorneys also figure to seek jurors who could believe that Bonds has been singled out among the many MLB players who used steroids (hence the desire to ask about Rodriguez).

The prosecution, in contrast, will probably try to identify jurors who are inclined to focus on the legal intricacies of the case: the arguably compelling evidence that Bonds knowingly lied under oath, as detailed in each of the 10 perjury counts. Such jurors might be particularly beneficial if prosecutors are only able to prove Count 10, which alleges that Bonds knowingly lied about being injected by personal trainer Greg Anderson. Indeed, Kathy Hoskins, the sister of Bonds' longtime friend/business manager Steve Hoskins, is expected to testify that she saw Anderson inject Bonds. Bonds could thus be found guilty for committing perjury without the government proving that he knowingly took steroids, since the lie would involve the injection itself, rather than its contents. If that is all the prosecution could prove, prosecutors would want jurors who would be willing to find Bonds guilty on that one and only count, as opposed to jurors would be tempted to let an otherwise-exonerated Bonds walk free.

In addition to ruling on the jury questionnaire, Judge Illston also established internal trial procedures -- game rules, if you will -- including those on how to address the prosecution's desire that Anderson be imprisoned for contempt of court if he continues to refuse to testify. Illston stated that a special hearing would be held to address that matter. Given that Anderson spent a year in jail for refusing to testify in Bonds' grand jury proceeding, he may not be deterred by the prospect of a much shorter stay behind bars this time around.

Other procedures were also established, and while they may seem like minor matters, they could ultimately impact whether Bonds is found guilty, and thus whether he will serve time in prison. Bonds' potential for prison time is worthy of clarification.

While it has been widely reported that Bonds faces a sentence of between probation and two years in prison, he could conceivably face a longer prison term. Each of the 10 perjury counts against Bonds carries a maximum sentence of five years in prison, with the 11th count, for obstruction of justice, commanding a maximum of 10 years. Although federal sentencing guidelines -- which instruct judges to apply a point system based on the egregiousness of the defendant's crimes, the defendant's criminal history and his or her acceptance of responsibility, among other factors -- suggest that Bonds would receive a maximum sentence of about two and a half years, sentencing guidelines are no longer mandatory. Per the U.S. Supreme Court's 2005 decision in Booker v. United States, an appellate court's review of a district judge's sentence must only ensure the "reasonableness" of the sentence. Subsequent Supreme Court decisions in Kimbrough v. United States and Gall v. United States provided further sentencing discretion to judges.

The net effect of these decisions is that if Judge Illston finds a convicted Bonds to be particularly reprehensible, he could face a longer sentence than is indicated in the sentencing guidelines. Having said that, Bonds would be a first-time offender of non-violent crimes (i.e., perjury and obstruction of justice), which is a relatively mild status and one seemingly undeserving of an elongated prison term.

Assuming that Bonds is convicted and sentenced to prison, the length of his sentence would also be impacted by federal truth-in-sentencing policies. They mandate that convicted defendants serve at least 85 percent of their sentences. Bonds would thus serve the vast majority of any prison sentence. Still, we are long way from a jury verdict, let alone a sentencing, in what should be this decade's most prominent sports trial. 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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