Posted: Wednesday April 6, 2011 8:39PM ; Updated: Thursday April 7, 2011 2:43PM
Michael McCann
Michael McCann>SPORTS LAW

Odds stacked against prosecution as Bonds trial nears its conclusion

Story Highlights

Barry Bonds' defense rested its case Wednesday without calling a single witness

Prosecutors dropped one count accusing Bonds of lying to a grand jury in 2003

In closing arguments, the prosecution will likely highlight Kathy Hoskins' testimony

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Closing arguments in USA v. Barry Bonds are scheduled for Thursday. Our legal analyst Michael McCann breaks down what to expect.

Why did prosecutors drop Count Four?

Count Four centered on whether Bonds, in 2003, knowingly lied in responding to the following questions: "[Greg Anderson, Bonds' former trainer] had never given you anything or asked you to take anything before the 2003 season, right?" and "Before last season, you never took anything that [Anderson] asked you to take, other than vitamins ... No oils like this or anything like this before?"

Last week, Judge Illston signaled that she was inclined to dismiss Count Four because of the underlying questions' ambiguity -- particularly in use of the word "anything" -- and because of the disconnect between the context of the questions and the evidence actually presented in trial. The questions were asked of Bonds while he was queried on BALCO's designer drugs, but those drugs were not implicated during the trial.

The loss of Count Four at this late stage points to the prosecution's difficult road in securing a conviction.

How will closing arguments proceed?

The prosecution will go first. Assistant U.S. Attorney Jeffrey Nedrow will deliver its closing argument. He will provide an overview of the government's case against Bonds, including an explanation of why Bonds should be found guilty on each of the four counts.

Nedrow will likely highlight testimony by Bonds' former personal shopper Kathy Hoskins, who believably testified that she saw Greg Anderson inject Bonds with a syringe. Count Two only requires that Bonds knowingly lied when saying that no one other than a doctor injected him with a syringe. In addition, Nedrow will probably stress testimony by four players who testified that Anderson provided each with steroids and, although level of knowledge varied by player, each player generally understood the substances to be steroids. Nedrow may also remind jurors of an audio recording that they heard, in which Anderson and Bonds' former business manager, Steve Hoskins, imply that Bonds received steroids. Nedrow will likely refrain from mentioning the name Dr. Arthur Ting, whose testimony caused severe damage to the government's case.

Allen Ruby, Bonds' lead defense counsel, will then present to the jury. He will assert that the government failed to prove beyond a reasonable doubt that Bonds committed perjury and thus should be acquitted. Paying particular attention to testimony by Ting, Ruby will likely accentuate the repeated contradictions of prosecution witnesses, among other obstacles for the government in proving Bonds' guilt. Ruby will probably characterize the government's case against Bonds as disorganized, vindictive and untrustworthy. While he is poised to secure his client a not-guilty verdict, Ruby still has to avoid seeming overconfident -- jurors might disfavor Bonds if Ruby overplays his hand.

After closing arguments are completed, Judge Illston will provide the jury with instructions on how to determine whether Bonds is guilty or not guilty.

What are the prosecution's chances for landing a conviction?

The odds are stacked against the prosecution. Despite the years they have had to prepare for this trial, prosecutors struggled to make the case that jurors should believe -- beyond any reasonable doubt -- that Bonds knowingly lied under oath.

Most damming, purportedly compelling government witnesses -- Kimberly Bell, Steve Hoskins and Ting -- contradicted one another and collectively gave the impression of a case built on unreliable memory, uncertain credibility and indirect evidence.

Should Bonds be found not guilty, the prosecution's decision to call Ting to the stand will be second-guessed for a long time. If prosecutors knew that Ting would blatantly contradict other witnesses, including in regards to conversations with Steve Hoskins and whether purported changes to Bonds' body were caused by steroids, why did they put him on the stand? If they didn't know of his testimony, why didn't they know? If Ting knowingly lied on the stand, then he should be charged with perjury. We'll see if that happens.

The jury also received mixed testimony regarding whether Bonds fully understood that Anderson provided him with substances that were classified as "steroids" under the law and Major League Baseball rules. If Bonds did not know that he was taking "steroids," then he did not commit perjury in saying that he never used steroids. A better characterization of the operative definition of "steroids" may have aided the prosecution.

Also, while jurors heard a recording that featured Anderson and Steve Hoskins discussing steroids and Bonds, the recording, limited by inferior sound quality, lacked the impact that was suggested by its transcript. A reading of the transcript may have proved more persuasive.

The government can still secure a conviction. Kathy Hoskins was a believable witness. The defense, moreover, declined to offer any witnesses or evidence to rebut her incriminating statements. If the jury reasons that Kathy Hoskins was telling the truth about Anderson injecting Bonds, it could decide to convict Bonds on Count Two.

But jurors may be wary of convicting Bonds based on the lone testimony of one, albeit credible, witness. They may also conclude that given the totality of limitations in the government's case, no conviction is warranted. In light of its decision to not call one witness, the defense seems to be banking on the jury viewing the case against Bonds on the whole rather than on the specific pros and cons of each count.

So couldn't the defense's decision to not attack Kathy Hoskins's testimony backfire?

Sure. Kathy Hoskins gave jurors every reason to believe her. Plus, during cross-examination, Bonds' attorney Cristina Arguedas was largely unable to connect Kathy with her less credible brother, Steve. Along those lines, jurors may have been expecting the defense to call at least one witness to the stand who would cast doubt on Kathy Hoskins. Without such a witness, jurors might reason that the defense simply had no one to challenge Hoskins. If so, they might find Bonds guilty on Count Two.

But the defense had a difficult decision to make. If they went after Kathy Hoskins, then the trial's focus could have become a referendum on Count Two and Hoskins's credibility. Such a development would have worked in the prosecution's advantage. Kathy Hoskins was prosecutors' best witness and Count Two was their strongest charge. By declining to call any witnesses, the defense instead hoped that jurors will find overall weakness in the government's case and thus find Bonds not guilty on all counts.

Can the prosecution highlight that Bonds did not testify on his own behalf?

No. In 1965, the Supreme Court held that a prosecutor cannot mention in the closing argument that the defendant declined to testify. Obviously, Nedrow would like to point out that Bonds opted not to testify, since such a comment would motivate jurors to ask a logical question: If Bonds is truly not guilty, why didn't he get on the stand and answer questions? The reason why Nedrow cannot do so is that Bonds' Fifth Amendment privilege against self-incrimination guarantees that he does not have to testify. Nedrow mentioning Bonds' declining to testify would compromise that privilege.

Can the prosecution mention that Greg Anderson refused to testify?

No. Closing arguments can only discuss evidence and testimony that were raised during the trial. That said, prosecutors can remind jurors of Anderson's incriminating statements in his recorded conversation with Hoskins.

How long will the jury deliberate?

The 12 jurors will deliberate as long as it takes all 12 to agree, on each count, that Bonds is guilty or not guilty. Their deliberation could take minutes, days or weeks. If only one juror is unconvinced of Bonds' guilt on a count, the jury will not convict Bonds on that count.

Jurors also enjoy flexibility in their deliberation schedule; they will choose their own hours for deliberation and, with Judge Illston's permission, can even deliberate after hours or on the weekend.

If jurors have questions during their deliberation, they can ask Judge Illston, with attorneys for both sides provided an opportunity to hear any questions.

What happens if the jury can't make a decision?

If the jurors cannot come to a unanimous verdict on each count, they would inform Judge Illston that they are deadlocked. In that circumstance, she would likely instruct the jurors to reconvene and for the dissenting jurors to carefully consider why the other jurors feel the way they do.

At the same time, Judge Illston would caution that jurors should not to feel pressured to change their mind simply to gain unanimity. She would also inform the jurors that if they fail to reach a unanimous decision, there would be "hung jury" and thus a mistrial. Bonds would be free should a mistrial arise, but, at the discretion of the government, could be retried at a later date.

Do you really think that the government would retry Bonds if there is a hung jury?

No. My instinct is that the government would initially say that it would leave open the possibility of retrying Bonds, but would eventually drop the matter.

The federal government's case against Bonds has been long, expensive and controversial. Given the substantial resources already invested in prosecuting Bonds, it seems unlikely that additional resources would lead to a stronger case the next time around. Unless there is evidence that has not been uncovered -- highly unlikely -- the government's case against Bonds suffers from unavoidable weaknesses, including problematic evidence, unconvincing witnesses and, in Anderson, a frustratingly loyal friend to Bonds.

Along those lines, the core legal argument against Bonds highlights how the case is not about whether he used steroids. In fact, even if jurors believe in their hearts and minds that Bonds used steroids, they may still find him not guilty. Therein rests the essential difference between a "conviction" in the court of public opinion for using steroids and one before a court of law for knowingly lying about using steroids. Jurors need to believe, beyond any reasonable doubt, that Bonds knowingly lied under oath when answering questions about using steroids, not whether he actually used steroids.

What happens if the jury convicts Bonds?

The defense will ask that Judge Illston overrule the jury's decision. It is extremely unlikely that she would do so.

If Bonds is convicted on all counts, he would face a likely sentence of between 18 to 30 months in prison. Judge Illston, however, is not bound by sentencing guidelines and would be free to impose a different sentence. If Bonds is only convicted on Count Two, Judge Illston would probably impose a much shorter sentence or possibly no time in prison. If Bonds receives any prison time, he would be subject to federal truth-in-sentencing policies, which require that defendants serve at least 85 percent of their sentences.

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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