Posted: Friday February 11, 2011 2:02PM ; Updated: Friday February 11, 2011 2:02PM
Michael McCann
Michael McCann>SPORTS LAW

Judge's decision on tape a key factor in deciding Bonds' fate

Story Highlights

A secretly recorded conversation could help convict Barry Bonds of perjury

U.S. District Court Judge Susan Illston will decide if the tape is admissable or not

The perjury trial for baseball's career home run leader begins March 21

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Barry Bonds
Even if the tape is allowed in court, Barry Bonds will have several other ways to avoid a conviction.
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Although his long-awaited perjury trial is still six weeks away, Barry Bonds will soon learn a great deal about his odds for victory or defeat. Later today, U.S. District Judge Susan Illston will hear arguments from the government and Bonds' lawyers over whether Illston should deem a recording of a potentially damming conversation as admissible evidence or inadmissible hearsay.

The conversation, which allegedly occurred in the San Francisco Giants' clubhouse in March 2003, involved Bonds's trainer Greg Anderson and his former business partner Steve Hoskins, who recorded the conversation. Anderson and Hoskins are described as being "near" Bonds's locker while they conversed, though Bonds's whereabouts are not specified. During the conversation, Anderson reportedly admits that he supplied Bonds with a non-detectable performance enhancer, later identified as "the Clear" (tetrahydrogestrinone or THG), which Anderson had concocted. Anderson allegedly made the following key statements:

"But the whole thing is, everything I've been doing at this point, it's all undetectable. See, the stuff that I have, we created it. And you can't buy it anywhere. You can't get it anywhere else. But you can take it the day of and pee. And it comes up with nothing . . . [It's] the same stuff that worked at the Olympics [with Marion Jones]."

Hoskins also plays a key role in the conversation, as he talks about "when Barry's taking those shots . . ."

Bonds's lawyers contend that Anderson -- who they know will not testify, even under penalty of contempt of court -- must testify in order for his comments and related evidence to be deemed admissible. Without Anderson's presence, Bonds's lawyers assert, evidence concerning Anderson would constitute hearsay (unreliable, out-of-court statements made by persons not in the trial).

In response, prosecutors highlight a key exception to the hearsay rule: statements against interest of an unavailable witness are generally admissible. The logic of this exception is that certain statements run so counter to the legal or economic interests of their speakers that they must be true and therefore reliable. Here, prosecutors contend that Anderson would not have admitted to being a drug dealer unless, in fact, he was a drug dealer. This rationale has already motivated Illston to deem portions of the Anderson-Hoskins conversation admissible. While the government wants the entire conversation admitted, Bonds's lawyers believe Illston should revisit her earlier legal conclusions and deny all of the conversation.

If deemed admissible, the recording could go a long way in helping prosecutors show that Anderson supplied Bonds with steroids. Prosecutors intend to link Anderson's comments with a urine test that Bonds failed in 2003 as part of a Major League Baseball testing program. The program was designed to be anonymous but the results of which were found on computers seized by Jeff Novitzky and other federal agents. Although Bonds reportedly passed the first testing of the urine, he failed a second testing after the test's design was enhanced to detect the Clear/THG.

While Anderson supplying Bonds with steroids does not necessarily prove that Bonds used steroids, it would force the jury to question the logic of Bonds being supplied with a steroid but not using it, or to have used it, but not known that it was steroid in spite of Anderson's boastful comments. Additionally, it would seem perplexing that Anderson and Hoskins would know of Bonds using steroids, but Bonds would not.

Even if the recording is admissible, Bonds's lawyers could scrutinize the quality and authenticity of the recording as well as the specificity of Anderson and Hoskins's remarks. They are also likely to fuel skepticism as to Bonds possessing any knowledge of the conversation.

Bonds's lawyers could also question whether Bonds understood that the Clear was in fact a "steroid", since it was not specifically banned by Major League Baseball at the time, nor was it specifically classified by the federal government as an illegal steroid. While such a strategy may seem like opportunistic word parsing, keep in mind the wording of the criminal counts in the Bonds indictment (which earlier this week was condensed to five counts, though the exact same penalties remain -- if convicted on all counts, Bonds, as a first time offender, would likely serve between 15 and 21 months in prison). Count One claims that Bonds knowingly lied under oath during grand jury questioning and specifically during this exchange:

Government lawyer: "Let me be real clear about this. Did he [Anderson] ever give you anything that you knew to be a steroid?"

Bonds: "I don't think Greg would do anything like that to me and jeopardize our friendship. I just don't think he would do that."

Government lawyer: "Well, when you say you don't think he would do that, to your knowledge, I mean, did you ever take any steroids that he gave you?"

Bonds: "Not that I know of."

With those statements in mind, Bonds could insist that he did not know the Clear was a steroid. Indeed, Bonds could argue, why should he have presumed that the definition of a steroid in a grand jury proceeding automatically included the Clear or any substance that evades detection in a urine test? Put another way, Bonds and his lawyers could portray "steroid" as an ambiguous word in the context of a new cocktail substance like the Clear and thus vulnerable to incompatible interpretations. Following that logic, Bonds may not have knowingly lied in response to questions about steroids when the questioner (government prosecutor) and answerer (Bonds) assumed different meanings of the operative word: "steroids".

Alternatively, Bonds could maintain that he never used the Clear. To do so, he could portray Hoskins and Anderson as simply wrong in their statements. He could also intimate that Hoskins and Anderson's decision to have their conversation in a crowded locker room with wealthy baseball players around them was not accidental. Following this line of argument, perhaps they were motivated by a financial desire to woo other Giants players to enlist their services -- if what they claimed to do worked for Bonds, then maybe it would work for other players.

Bonds could also raise questions about the handling of his 2003 urine sample by 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. Similarly, Bonds could cast doubts about the scientific consequences to a urine sample when it is run through multiple tests, particularly when the test design is changed in mid-course.

More broadly, this afternoon's hearing is a reminder that since the government began investigating Bonds nearly a decade ago, Anderson is still the most important person in determining whether prosecutors can convict Bonds. While many remain stumped by Anderson's unexplained and unconditional loyalty to Bonds -- even to the point of sitting in a prison cell for a year while Bonds remained a free man -- Anderson cannot be forced to testify against his former star client. As a result, the government has to build a case around Anderson without Anderson's actual involvement. Such a task may prove too difficult, though jurors hearing the Hoskins-Anderson recording would certainly help.

Michael McCann is a sports law professor and Sports Law Institute director 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 reading group at Yale Law School.

 
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