Posted: Thursday March 31, 2011 10:54PM ; Updated: Friday April 1, 2011 12:50PM
Michael McCann
Michael McCann>SPORTS LAW

Bonds moves ahead in the count

Story Highlights

The government has struggled to show that Barry Bonds knowingly lied under oath

The prosecution had its best and worst (by far) witnesses take the stand Thursday

The defense will begin its case on Monday and likely try to discredit Kathy Hoskins

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Michael McCann breaks down Barry Bonds' perjury trial as the prosecution nears the end of its case-in-chief. His analysis reflects observations by George Dohrmann, who is at the trial and is providing live courtroom updates.

The second week of USA v. Barry Bonds concluded Thursday afternoon with baseball's all-time home run champ clearly ahead in the count. Several key government witnesses, especially Bonds's former business partner, Steve Hoskins, and his former orthopedic surgeon, Dr. Arthur Ting, failed to provide convincing testimony of Bonds' guilt and instead harmed the government's case. When considering that prosecutors carry the heavy burden of convincing all 12 jurors to believe, without any reasonable doubt, that Bonds knowingly lied about using steroids or about being injected by Greg Anderson, these missteps may soon lead to Bonds celebrating a not guilty verdict.

Still, federal prosecutors -- who win about 90 percent of their trials -- landed several legal blows, particularly in regards to what may turn out to be the government's strongest argument: that Bonds knowingly lied when asserting that no one but his doctor ever injected him with a syringe.

What worked for the prosecution?

1. Kathy Hoskins's believable recollection will help to prove Count Two

Kathy Hoskins, the former personal shopper of Bonds and the sister of Steve Hoskins, carefully explained how she watched Anderson inject Bonds in the navel during the 2002 season. She came across as believable, normal and someone with whom jurors could likely identify. Her memory also appeared strong, especially when she recalled specific comments purportedly made by Bonds. While defense attorneys tried to link her with Steve Hoskins, whose business relationship with Bonds soured and who struggled on the stand earlier in the week, Kathy Hoskins emerged from cross examination as credible and without apparent ill-motive.

If the jury believes Kathy Hoskins with absolute certainty, it would be poised to find Bonds guilty on Count Two of the government's indictment. As explained in our previous coverage, Count Two simply requires prosecutors to prove that Bonds was injected by Anderson and that Bonds knowingly lied in 2003 when stating, under oath, that no such injection ever took place.

Then again, prosecutors were unable to corroborate Kathy Hoskins's testimony with other witnesses who could credibly claim they too saw Bonds injected by Anderson. Along those lines, some on the jury may be uncomfortable with finding Bonds guilty based on the testimony of just one witness, albeit a very believable one. They might also reason that Bonds could have simply -- to borrow a favorite word of fellow alleged perjurer Roger Clemens -- "misremembered" everything that Anderson did to him, including injections. Given that perjury requires that the defendant knowingly lied, as opposed to merely being mistaken or confused, any possibility of doubt would work to Bonds's defense.

2. Jason Giambi and three other players offered persuasive, though circumstantial, evidence of Bonds's guilt

Prosecutors hoped that four current and former players -- Marvin Bernard, Jason Giambi, Jeremy Giambi and Randy Velarde -- would convey to the jury that, like Bonds, they received the training assistance of Greg Anderson but also that they knowingly received steroids from Anderson. Those players came through for prosecutors, and undoubtedly left jurors wondering why Anderson would not have similarly provided Bonds with steroids and instructions on how to use them. While Judge Susan Illston made clear that Bonds cannot be convicted based on circumstantial evidence alone, jurors will likely highlight the players' testimony when they deliberate over Bonds's guilt.

3. Jeff Novitzky effectively showed that the government is not out to get Bonds

Bonds' defense attorneys have maintained that the government's case against their client is more about zealous government officials obsessed with convicting Bonds than about whether Bonds knowingly lied under oath. Novitzky, the former IRS and now FDA agent, effectively presented the broader context of the government's prosecution of Bonds as merely a byproduct of an earlier investigation into BALCO. The investigation, Novitzky believably explained, did not target Bonds. While Novitsky's testimony did not corroborate the charges against Bonds, it framed the government's case as legitimate and worthy of its considerable time and expense.

What worked for the defense?

1. Steve Hoskins and Dr. Arthur Ting failed as witnesses for the prosecution

Though he initially seemed to possess intimate knowledge of Bonds' personal and professional life and though he portrayed Bonds as keenly interested in steroids, Steve Hoskins proved highly vulnerable under cross-examination, particularly in regards to his credibility and motivations. His rationale for secretly taping a conversation with Anderson drew intense fire, as Hoskins made the recording after Bonds had largely terminated his business relationship with him. Jurors will likely have doubts about relying on comments by Steve Hoskins to convict Bonds.

Ting proved to be the worst witness for the government, by far. For at least three reasons, Ting seemed more like a witness for the defense than for the prosecution: he emphasized that he never spoke with Bonds about steroids; he highlighted non-steroid explanations for possible changes in Bonds' body; and he adamantly denied testimony by fellow prosecution witness Steve Hoskins, who had claimed that he and Ting discussed steroids. By the end of his testimony, Ting probably left jurors with serious doubts about the government's case against Bonds and about prosecutors' wisdom in calling him to the stand.

2. The highly anticipated audio tape of Greg Anderson proved flat

The jury heard an audio tape of Hoskins and Greg Anderson, who refuses to testify and who has been jailed by Judge Illston for contempt of court, in which Anderson implies to Hoskins that he provided Bonds with the Clear and also discusses how the substance was "undetectable." While Anderson's recorded comments point in the direction of Bonds' guilt, the conversation was difficult to follow contextually. Anderson's voice, moreover, proved hard to hear. It is safe to say the tape alone will not lead to Bonds' guilt.

3. Questions about steroids tests and what is a steroid confounded government's case

Defense attorneys who are comfortable with, and knowledgeable about, scientific evidence can often draw doubts about the methodology and accuracy of implicating test results. Bonds smartly hired defense attorneys who fit that description. To wit: while a second test of a Bonds's urine sample tested positive for the Clear and Clomid (a fertility drug that can be used by males to mask steroids in the body), Bonds's attorneys highlighted how the first result -- which did not test for the Clear -- came clean and how the Clear was not specifically banned by Major League Baseball at the time. Although jurors may reason that Bonds indeed tested positive for steroids, they may not be convinced of that beyond a reasonable doubt.

Bonds' attorneys also effectively challenged whether Bonds would know that the Clear counts as a steroid. At the time Bonds purportedly used it, the Clear was neither specifically banned by Major League Baseball nor specifically classified by the federal government as an illegal steroid. If Bonds did not know the Clear was a steroid, then his use of it would not compel a conviction on perjury charges: he would not have knowingly lied.

What to expect next week?

The prosecution is nearly finished and the defense will begin its case-in-chief on Monday. Expect three major defense strategies:

1. Refute Kathy Hoskins's assertion that Anderson injected Bonds

While the government struggled to show that Bonds knowingly lied under oath about steroids, it scored a victory in Kathy Hoskins's persuasive testimony. Keep in mind, if Bonds is convicted only on Count Two, he will still be a convicted felon and still face prison time.

Expect defense attorneys to portray Kathy Hoskins as linked more closely to her brother, Steve, than she led the court to believe. The stronger she is linked to her less credible brother, the more doubt the jury may have of her testimony. While the defense has to be careful to not so fervently slander Kathy Hoskins that it backfires -- and that she is called again to the stand -- it has to address her damming testimony.

2. Continue to raise doubts about the operative definition of steroids when Bonds testified in 2003

The more the jury believes that Bonds did not really know what substances count as steroids, the less willing they will be to convict him. The testimony of the Giambi Brothers and the four other players would suggest that Bonds should have known what Anderson was providing him. To counter that, expect defense attorneys to portray the relationship between Bonds and Anderson as very different from those relationships Anderson enjoyed with the other players. Anderson will likely be shown as wanting to protect Bonds in his quest to break the home run record.

3. Employ a "prevent" defense

The defense should be confident that it can win this trial. It does not need to take chances, such as calling Bonds to the witness stand. Expect the trial to finisher earlier than expected, with the defense focusing its selection of witnesses on those who can counter Kathy Hoskins's remarks.


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. Follow him on Twitter.

 
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