For Barry Bonds’ jury, it can’t be an easy call.
They’ve been asked to sort out a fiercely contested legal fight in which the evidence – depending on how it’s viewed – could support either an outright exoneration or a cascade of guilty verdicts.
If the jury is offended by the idea of federal law enforcement policing the use of performance-enhancing drugs in elite sports, the trial could end in acquittal.
But if the jury starts to dig into the evidence – especially the testimony of a personal shopper who says she saw Bonds being injected by his trainer – baseball’s home run champion could wind up being convicted of a felony.
Those are some of the views expressed in a California Watch survey of legal experts who are tracking Bonds’ trial on perjury charges in federal court in San Francisco.
“This case is ending as it began,” said San Francisco lawyer William Keane, who represented Olympic track coach Trevor Graham in a case that parallels that of Bonds.
It’s “too close to call, with the jury having its work cut out for it,” he said.
The former Giants slugger is accused of lying under oath and obstructing justice in connection with his testimony before the federal grand jury that probed the BALCO steroids scandal in 2003. Bonds said he had never knowingly used banned drugs, and denied that he had been provided with designer steroids from the Bay Area Laboratory Co-Operative in Burlingame.
His trainer, Greg Anderson, gave him only flaxseed oil and arthritis balm, he said. He has pleaded not guilty to the charges.
Bonds didn’t testify in the trial, and his lawyers didn’t call any witnesses.
On Friday, after three weeks of testimony and argument, the jury of eight women and four men began deliberating.
Keane, a former prosecutor turned defense specialist, said he thought the biggest challenge for Bonds’ legal team was the so-called “injection count” – a charge that accuses Bonds of lying when he said he had never received an injection from anybody but a doctor.
“There’s direct evidence by a witness, Kathy Hoskins, who has relatively little baggage,” Keane said, referring to the former personal shopper. She told the jury that in 2002, while packing Bonds for a road trip, Anderson entered Bonds' bedroom and gave the slugger an injection in the abdomen. Late Friday, the panel said they wanted to listen to a read-back of her testimony, indicating some jurors were interested in it.
Unlike Hoskins, the other Bonds confidants who testified for the government carried “Hall of Fame baggage,” the lawyer said.
Hoskins’ brother, Steve Hoskins, who was Bonds’ business manager until a bitter falling out, said the slugger confessed he was using banned drugs. But in Keane’s view, defense lawyer Allen Ruby scored points on cross-examination. Ruby suggested Hoskins concocted his story to deflect an FBI investigation after Bonds accused Hoskins of memorabilia fraud.
Likewise, Keane said defense lawyer Cristina Arguedas probably raised doubts about the credibility of former Bonds girlfriend Kim Bell, who said that in 1999 the slugger told her he was using steroids. During grueling questioning, Arguedas portrayed Bell as a jilted ex-lover trying to profit off her association with the slugger by posing nude for Playboy magazine.
As a result, Bonds stands a better chance of acquittal on counts that accuse him of lying when he said he never obtained steroids or human growth hormone from Anderson.
Professor Robert Talbot, a law professor at the University of San Francisco, said he believes the verdicts in the Bonds case would unfold depending on how the jury answers a threshold question – are an athlete’s lies about steroids even important?
“The jury verdict might depend on how seriously they take this whole matter,” he said.
Around the city, one often hears the view that prosecuting Bonds is a waste of government time and money, Talbot noted. Unless prosecutors succeeded in convincing the jury that perjury is a serious crime and steroids are a real problem, the panel might not engage on the government evidence, he said. In that event, a favorable verdict for the former Giants slugger is likely, he said.
Talbot also said the defense had been effective in its cross-examination of Bonds’ orthopedist, Dr. Arthur Ting. A government witness, Ting was called to buttress the testimony of Hoskins, the former business manager, who said he had tried for years to get Bonds off steroids.
But under questioning by Arguedas, Ting denied that he had ever even discussed Bonds and steroids with Hoskins, as Hoskins had testified.
“If the jury was looking for a reason to find him not guilty, there it was,” Talbot said of Bonds. He agreed that the testimony of Hoskins’ sister about the injection posed the biggest problem for the defense.
So did Stephen Moskowitz, a San Francisco tax lawyer and legal commentator who has been following the trial.
“If I was Barry, that’s the number one thing I would be worrying about,” he said of the injection count. The other charges are “weak, and could easily fall,” Moskowitz said, because the defense succeeded in raising doubts about the credibility of the Bonds confidants.
“I know nobody believes Barry, but we should consider, just consider, that he is telling the truth,” he also said.
Robert Musante, a former prosecutor who teaches cross-examination techniques to civil lawyers, said the government would have had a far stronger case if Bonds had been subjected to tough questioning at the grand jury.
Musante, of Walnut Creek, called the 2003 session “one woefully lame deposition,” saying prosecutors missed a golden chance to get at the truth about Bonds and steroids. Their biggest failure, in his view: They didn't challenge Bonds when he made the "absurd" claim that he routinely ingested substances provided by his trainer without ever finding out what they were.
The prosecutors “accepted nonsense answers and went on to another subject” rather than asking pointed follow-ups, said Musante. If they had zeroed in, they might have learned what was actually going on – thus making the ensuing investigation, indictment and trial unnecessary. Musante said he uses the Bonds grand jury transcript in classes, as an example of how not to question a witness.