Posted: Monday March 21, 2011 11:59AM ; Updated: Monday March 21, 2011 12:45PM
Michael McCann
Michael McCann>SPORTS LAW

The Barry Bonds trial: Laying out the case for the prosecution

Story Highlights

Judge Susan Illston has rendered some key pieces of evidence inadmissible

The government can gain a conviction without proving that Bonds took steroids

One perjury count hinges on whether Bonds was knowingly injected by his trainer

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Even with U.S. District Court Judge Susan Illston rendering key pieces of prosecutorial evidence inadmissible, and even with multiple re-writes of the federal government's indictment, the perjury case against Barry Bonds remains viable.

Most important, the government can prevail without proving that Bonds took steroids. Per Count Two of the government's indictment, prosecutors only need to show that Bonds was injected by his former trainer, Greg Anderson, an act which the government appears poised to establish.

In a case best known for steroids, it may be surprising to contemplate a conviction without proof of steroid use. Yet such a path to guilt underscores the shrewd structure of the government's charges against Bonds.

There are four perjury counts and one obstruction of justice count against Bonds. While three of the four perjury counts concern Bonds's denials that he took steroids or HGH, Count Two simply refers to Bonds's refutation that Anderson injected him. The difference in underlying facts between Count Two and the other perjury counts is significant.

To prove beyond a reasonable doubt that Bonds knowingly lied in response to a question about a particular event, the government must convince a jury of two basic points: 1) that the event occurred; and 2) that Bonds knowingly lied about his involvement in the event.

To prove the steroid-related counts, the government must show that Bonds took steroids and that he knowingly lied when he claimed that he did not. Even if prosecutors conclusively establish that Bonds took steroids, Bonds cannot be convicted of perjury if he was unaware that the substances that Anderson was giving him were, in fact, steroids. Bonds' attorneys will claim that evidence linking Bonds to steroids is deficient and, besides, those around him had a financial interest in concealing the nature of any steroid use from him.

Count Two, in contrast, merely requires the government to show that Bonds was injected by Anderson and that Bonds knowingly lied when he denied that such an injection occurred. Count Two therefore does not require any evidence of Bonds taking steroids.

The government appears confident that it can prove that Anderson injected Bonds. To that end, it will call to the stand Kathy Hoskins, Bonds' former personal shopper and the sister of Bonds' longtime friend/business manager Steve Hoskins. She is expected to testify that she clearly saw Anderson inject Bonds. She will likely make such an assertion in plain-spoken language that resonates with jurors.

As prosecutors will emphasize, Kathy Hoskins, unlike Bonds, has no reason to lie. In fact, she is deterred from lying, because fabricating the story would subject her to charges of perjury and obstruction of justice and thus jail time. The unambiguousness of watching one person inject another with a syringe also appears meaningful: Bonds's counsel may struggle to dismiss Hoskins' recollections as mere confusion about what Bonds and Anderson were doing. Bonds's counsel will surely illuminate any vagueness or inconsistency in Hoskins' memory, and also raise suspicions about Hoskins' motivations, such as by asserting that she, along with her brother and Anderson, were members of a conspiracy to have Bonds unknowingly take steroids. Still, with the caveat of not knowing how well Hoskins will answer questions, the prosecution appears to have the edge here.

The government thus approaches the trial with confidence that it will prove at least one count. And a conviction is a conviction: Bonds would become a convicted felon if found guilty on any one of the five counts against him.

The government, of course, intends to do much better. A clean sweep on all five counts would help to validate the millions of tax dollars and thousands of staff hours poured into investigating and prosecuting Bonds. It would also increase the likelihood that Judge Illston sentences Bonds to between 18 and 30 months in prison. In contrast, should Bonds only be convicted for lying about an injection, he would likely receive a much lighter sentence and possibly no prison time at all.

For those reasons, the government will attempt to use both physical evidence and witness testimony to prove that Bonds knowingly lied under oath about steroids. Unfortunately for the prosecution, Judge Illston deemed inadmissible several key pieces of evidence. They include BALCO tests allegedly showing that Bonds used steroids and handwritten notes and calendars purportedly documenting Bonds' steroids usage. Anderson's continued refusal to testify against his former client, even when threatened with contempt of court and additional prison time to the year he previously served in contempt, also hampers the prosecution.

But the government possesses other pieces of damming evidence, as well as incriminating witness testimony.

The evidence includes a purportedly positive steroid test result of Bonds' urine sample from 2003. In accordance with MLB's anonymous survey testing program, Bonds had provided a urine sample, which was tested by a private laboratory. The lab did not find steroids in Bonds' urine, but it did not test for testrahydrogestinone (THG or "the Clear"), which Bonds has already admitted to possibly and unknowingly using and which at the time was neither specifically banned by Major League Baseball nor listed by the federal government as a prohibited substance. According to the government, a second test showed that Bonds not only used the Clear but also Clomid, a fertility drug used by males to mask steroids in the body or to improve bodily production of testosterone.

The government also intends to call three witnesses, who will testify that Bonds confided in them that he used steroids: Steve Hoskins, Bonds' former girlfriend Kimberly Bell and former Giants teammate Bobby Estalella. Expect the government to repeatedly refer to this trio as a collective entity and in the following context: Either these three persons are all lying or Bonds is lying. Each of the witnesses brings strengths and weaknesses for the government, and there remains the great unknown as to how well they will testify, particularly when subjected to aggressive cross-examination about events that took place over a decade ago.

Last but not least, the government will also introduce an audio recording purportedly of Anderson and Steve Hoskins, in which Anderson tells Hoskins that he provided Bonds with the Clear. Also on the recording, Hoskins allegedly tells Anderson about Bonds "taking the shots."

For at least two reasons, the jury hearing Anderson's voice implicate Bonds could prove the deciding factor in the case. First, prosecutors will portray Anderson as the person with the most influence over, and knowledge of, Bonds's training regimen and substance habits. Second, six other former big league clients of Anderson -- Marvin Bernard, Jason Giambi, Jeremy Giambi, Armando Rios, Benito Santiago and Randy Velarde -- will testify that Anderson furnished them with illegal performance-enhancing drugs and carefully taught them how to most effectively use those drugs. In doing so, those former clients will express that Anderson did not mislead them as to what they were taking, nor did he conceal the consequences of taking drugs that were prohibited by federal law and/or Major League Baseball.

Depending on how effective prosecutors are in their courtroom presentation, it may be impossible for jurors to reason that Anderson -- who won't be in court to challenge the damaging assertions of his former clients -- did not provide Bonds with performance-enhancing drugs and did not also clearly explain to Bonds what he would be taking.

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 and analytics reading group at Yale Law School.

 
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