The Barry Bonds trial: Laying out the case for the defense
The federal conviction rate is approximately 90 percent overall
The defense will likely try to paint Bonds as the victim of a government witch hunt
The evidence against Bonds is daunting but there are hole to exploit
Barry Bonds' chances of gaining an acquittal in his perjury trail are slim. The federal conviction rate is approximately 90 percent, meaning that the minute the government elected to charge Bonds with a crime, his chances of avoiding a conviction were no better than one in 10.
One reason for the government's success in cases that do go to trial is that it can be difficult to convince people to second-guess government officials. "In any criminal case, a lot of potential jurors come in saying, 'These serious, smart prosecutors think a crime was committed. So [the accused] must have done something wrong,'" says William Keane of Farella Braun and Martel in San Francisco, who represented track coach Trevor Graham in his BALCO perjury trial. "It's a challenge for the defense to get them to the look into the eyes of the prosecutors and say, 'I don't buy it.'"
Bonds' legal team -- headed by Allen Ruby and Christina Arguedas -- knows well the difficulty in planting that seed of doubt, but is armed with an assortment of tools to accomplish that task. The defense's strategy is likely to include moving the spotlight off of Bonds and on to the government's pursuit of him. Bond's isn't on trial because he lied, they might say, but rather because an overzealous federal agent became fixated on him and prosecutors wanted to punish him for besmirching baseball. Look no further than the vagueness of the questions asked of him in 2003 before the grand jury investigating BALCO, and the government's actions during its five-year pursuit of the former Giants slugger. Even if jurors don't believe that Bonds is entirely innocent, the defense's portrayal of the government's motives might lead them to doubt the foundation the case is built on.
To be sure, Ruby will attempt to focus the jury on this in his opening statement. The majority of the jurors will be familiar with the BALCO scandal. (During jury selection for Graham's trial, 90 percent of the pool knew about BALCO.) Ruby must stress to those 12 individuals that they are not tasked with policing sports or judging Bonds' candidacy for the Hall of Fame, but rather to make a decision based solely on the evidence at hand.
That evidence is daunting, but there are plenty of holes to be exploited. Many of the government's key witnesses -- such as Steve Hoskins and Kimberly Bell -- fell out of favor with Bonds. It won't be hard to paint them as embittered and motivated by revenge. The lead investigator, FDA agent Jeff Novitzky, is far from unimpeachable. He has been painted by some media reports as hell-bent on exposing Bonds' steroids use, and if Arguedas (who likely will hand the cross-examination) can present that possibility to the jury, it will work in Bonds' favor. Novitsky was also part of a team investigated over money that went missing during the raid of the home of Bonds' trainer, Greg Anderson, and Novitsky allegedly told people that he considered writing a book about the BALCO case. He was an effective witness during the Graham and Tammy Thomas perjury trials, but he was tripped up by Keane on a few points. Given that Arguedas is one of the most effective interrogators in the business, her ability to characterize him as the leader of a government witch hunt shouldn't be doubted.
While Anderson has refused to testify against Bonds, it would be a mistake to think that he won't be a major figure during this trial. He is the X factor looming over everything, and the side that wins control of the Anderson narrative will be the victorious one.
The prosecution will have little trouble showing that Anderson was the conduit between BALCO and Bonds, the supplier of the many performance-enhancing drugs that he took. Along the way, prosecutors will show that Anderson and Bonds were close. Yet the government must also depict Bonds as an independent superstar, someone who would never trust Anderson to the point that he would take whatever drugs were handed to him. Common sense says that one of the most famous athletes in America wouldn't take just anything that his trainer gave him, but the government will be walking a fine line.
The defense will likely turn the government's portrayal of the Bonds/Anderson relationship in its favor. Of course they were close, so close that Bonds trusted Anderson to give him legal supplements and not steroids. Bonds never denied taking PEDs to the grand jury; he said he didn't knowingly take them. His crime was relying on Anderson's judgment.
"It's a two-edge sword for the government," Keane says. "The closer prosecutors make them out to be, the more likely it becomes that [Bonds] might have trusted him."
There are two pieces of evidence that represent significant hurdles for the defense. Bobby Estalella, a former Giants teammate of Bonds, is expected to testify that Bonds talked to him about doping. Estalella has no obvious axe to grind and was not compelled to testify by the government. The other is the testimony of Kathy Hoskins, who will say she saw Anderson inject Bonds. One of the five counts against Bonds pertains to his claim before the grand jury that no one other than his doctor injected him.
If the jury were to convict Bonds solely on this count, it would have to be considered a victory for the defense, as it could result in little to no jail time. Jurors might also look unfavorably at convicting Bonds on what would amount to a technicality, particularly a jury in the Northern District of California. It is an area made up of relatively smart people with liberal to moderate political leanings, and questioning the purpose of the government's mission is not something that they are predisposed against.
"This is a courthouse where defendants do have success in getting jurors to focus on whether the prosecutors have done their job in proving the cases," says Keane.
In other words, it's the perfect place for Bonds and his defense team to beat the odds.
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