Posted: Tuesday January 18, 2011 3:17PM ; Updated: Tuesday January 18, 2011 3:39PM
Michael McCann
Michael McCann>SPORTS LAW

What to expect as long-awaited Barry Bonds trial draws near

Story Highlights

Barry Bonds faces 11 counts of perjury and obstruction of justice

The trial of the 46-year-old baseball legend is scheduled to begin in March

Several key pieces of the prosecution's case have been deemed inadmissible

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Barry Bonds
Barry Bonds hasn't played since 2007 but he was back in a Giants jersey long enough to throw out the first pitch of an NLCS game last October.
AP

The long-awaited trial of 46-year-old Barry Bonds, who was originally indicted in November 2007 and who now faces 11 counts of perjury and obstruction of justice, is still two months away. Pretrial hearings in the next few weeks, however, may determine whether federal prosecutors can convince a jury, beyond a reasonable doubt, that baseball's all-time leading home run hitter knowingly lied under oath about using steroids. If convicted on all counts, Bonds, who has a clean criminal record, would almost certainly face some amount of time in prison, possibly up to two and a half years.

Several key pieces of the prosecution's case have already been deemed inadmissible. In February 2009, U.S. District Judge Susan Illston barred BALCO steroids tests and other materials as inadmissible hearsay (that is, unreliable out-of-court statements made by persons not in the trial). In June 2010, prosecutors failed to persuade a three-judge panel on the U.S. Court of Appeals for the Ninth Circuit to reverse Judge Illston's ruling. Writing for a 2-1 majority, Ninth Circuit Judge Mary Schroeder reasoned that Bonds' former personal trainer, Greg Anderson, must testify in order for urine tests and other potentially incriminating evidence to be deemed admissible. While a dissenting judge, Ninth Circuit Judge Carlos Bea, questioned the necessity of Anderson's testifying since he was acting on Bonds's behalf and since written materials and lab results could be discussed by other witnesses, fairness, according to Judge Schroeder, requires it: The truthfulness of materials produced by Anderson -- who is unwilling to testify, even to the point of sitting in a jail cell for a year in contempt of court -- can only be assured if Anderson actually faces cross-examination.

Despite these setbacks, prosecutors can introduce other types of incriminating evidence. That is, unless Bonds' attorneys can persuade Judge Illston to deny prosecutors the chance.

For starters, prosecutors have signaled an interest in calling Anderson to the stand, knowing that he would once again refuse to testify and therefore be placed in contempt of court. Prosecutors believe that a jury would interpret Anderson's refusal as a sign that Bonds knowingly lied under oath. Attorneys for Bonds are seeking to prevent prosecutors from deploying that strategy, and Judge Illston will have to determine whether prosecutors' calling Anderson to the stand with no expectation of him appearing would be more probative of Bonds's guilt or innocence or more prejudicial to Bonds, and disruptive of the proceedings.

Prosecutors also intend to call to the stand witnesses who are expected to testify that either Bonds told them of using steroids or that they saw him receive injections at the hands of Anderson. Kimberly Bell, Bonds' former girlfriend, and Bonds' former Giants teammate Bobby Estalella, are expected to claim that Bonds admitted in conversations that he used illegal performance-enhancers. Kathy Hoskins, Bonds' former assistant and the sister of Bonds' longtime friend/business manager Steve Hoskins, is apparently willing to testify that she saw Anderson inject Bonds. Such a statement would contradict Bonds' sworn testimony that no one except his doctor ever injected him with anything.

Also admissible, at least as of now, would be a portion of a recorded conversation purportedly between Steve Hoskins and Anderson, in which Anderson tells Hoskins that he injected Bonds with a performance-enhancing substance. Bonds' attorneys have requested that Judge Illston exclude the entire conversation, on grounds that Judge Illston's previous ruling requires that Anderson testify in order for him to be referenced.

Even if admissible, witness testimonies and recorded conversations would be subject to intense cross-examination by Bonds' attorneys, who would likely question witnesses' financial and legal motivations as well as their consistency of facts and recollection of specific detail from events that occurred a decade ago. Bonds's attorneys would also emphasize that conviction of perjury requires that the jury conclude, beyond any reasonable doubt, that Bonds knowingly lied under oath. If the government's case boils down to Bonds's words against those of witnesses about conversations and observances from years ago, it may prove difficult for jurors to lack any reasonable doubt.

Attorneys for Bonds have also asked Judge Illston to deny prosecutors' plans to call to the stand six current and former big league players (Marvin Bernard, Jason Giambi, Jeremy Giambi, Armando Rios, Benito Santiago and Randy Velarde) and former New England Patriots special teams captain Larry Izzo. These witnesses are not expected to implicate Bonds directly, but rather portray Anderson as a dealer of steroids and illegal performance-enhancing drugs. They are expected to provide first-hand accounts as to how Anderson gave them steroids and explained how to best use them. Bonds's attorneys, however, insist that their testimony would be irrelevant to Bonds's case and, moreover, would conflict with Judge Illston's previous ruling requiring that Anderson testify in order for such evidence to be admissible.

Even if prosecutors are denied the opportunity to present evidence and testimony related to Anderson, they might still be able to introduce a purportedly positive test result of Bonds' urine sample from 2003. At the time, Bonds, along with other big league players, provided anonymous samples to Quest Diagnostics and Comprehensive Drug Testing, which had been contracted by Major League Baseball to determine if a sufficient percentage of big league players tested positive in order for revised testing procedures to take effect. A first assessment of Bonds' sample apparently did not produce a positive result, but one was found on a second assessment.

Such evidence may no longer be admissible, however, given the Ninth Circuit's August 2009 decision in United States v. Comprehensive Drug Testing. In that case, the Ninth Circuit found that the government violated players' Fourth Amendment rights in seizing computers containing the "anonymous" drug testing information. Even if this evidence remains admissible, Bonds' attorneys could highlight that the first round of testing did not yield a positive result and they could question why it took multiple tries to find that Bonds tested positive. Also, Bonds testing positive for steroids does not necessarily show that he knowingly lied under oath; a jury might reason that he took steroids but believed them to be other substances and therefore did not knowingly lie.

Interestingly, a jury could conclude that Bonds knowingly lied under oath only when stating that Anderson never injected him. While a conviction on one count of perjury related to an injection (as opposed to steroids) would still subject Bonds to the possibility of a prison sentence, it might prove something of a Pyrrhic victory for the government, at least from the viewpoint of baseball fans who are convinced that Bonds "cheated" his way to the record books.

After all, such a conviction would not establish that Bonds lied when stating that he never used steroids; it would only establish that he lied when stating that he was never injected. Those who insist that Bonds' historic achievements are not tainted by steroids might approve that kind of courtroom outcome. It would also call into question the substantial tax dollars and significant government lawyers' time and energy spent on the Bonds prosecution.

Michael McCann is a sports law professor at Vermont Law School and the distinguished visiting Hall of Fame Professor of Law at Mississippi College School of Law. He also teaches a sports law and analytics reading group at Yale Law School.

 
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