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|Will the jury believe Barry Bonds or Jeff Novitzky? Bonds' perjury trial starts Monday.|
SAN FRANCISCO -- Seven years and three and a half months after Barry Bonds appeared before a federal grand jury, the government is finally ready to make its case that he lied.
Jury selection in Bonds' perjury case will begin in U.S. District Court on Monday morning, with opening statements possibly by Monday afternoon but more likely Tuesday.
Bonds was originally indicted in November 2007, but it has taken this long to get to trial in part because the government set off a two-year delay when, on the eve of trial in February 2009, it appealed evidentiary rulings by Judge Susan Illston that had cut wide holes in the prosecution's case. Bonds faces four counts of perjury and one count of obstruction of justice stemming from his testimony before the Bay Area Laboratory Co-Operative grand jury.
In December 2003, Bonds testified he used substances identified by the government as "the cream" and "the clear," both anabolic steroids, but Bonds said he believed they were arthritis balm and flaxseed oil.
There is much at stake for both sides. For the government, it's the long-term investment and the high-profile nature of the case. For Bonds, it's his legacy and possibly his freedom.
Conventional courthouse wisdom suggests that judges punish people who lie in their courtrooms. So if Bonds takes the stand and is found guilty of perjury or obstruction, it would mean that the jury concluded he lied to both the grand jury and the trial jury. In this case, prosecutors and legal experts agree that Illston could sentence him to as much as 30 months in prison.
If, however, as expected, he doesn't testify and the jury finds him guilty, he likely won't spend so much as a day in prison. None of the government's perjury convictions related to the BALCO saga has resulted in prison time, and none of the other defendants testified.
Prosecutors know they're under the gun. They went through two grand juries to indict Bonds, imprisoning his former trainer Greg Anderson for 14 months in a failed effort to make him testify. Members of Congress, as well as the media and public, have questioned whether all the time, money and coercion have been worth it to prove that a ballplayer knowingly lied about his drug use, especially when his reputation already has been tainted.
|Between his grand jury testimony and his trial on perjury and obstruction charges, Bonds hit his record-breaking home run. But he's already lost much of that legacy.|
An acquittal or dismissal would be devastating to the government. It also could have implications for two other high-profile cases the government is chasing: Roger Clemens faces charges he lied to Congress with his unequivocal denials about performance-enhancing drug use; and seven-time Tour de France winner Lance Armstrong is the subject of an investigation headed by the Food and Drug Administration's Jeff Novitzky, who drove the BALCO case during his work with the Internal Revenue Service.
For Bonds, whose reputation as a player was shredded when pieces from the government's case first began to leak back in the spring of 2004, an acquittal might not do much to help his public image or improve his chances of being voted into the Hall of Fame. But at least he wouldn't be a convicted criminal.
Much of the evidence against Bonds will never be seen during the trial. In documents filed in the lead-up to the original February 2009 trial date, the government said it had evidence Bonds tested positive for steroids three times after BACLO sent his blood and urine to be screened. Prosecutors presented calendars and logs that purportedly show Bonds' drug regimen.
|Greg Anderson's silence has spoken louder than any other voice in the case.|
But only Anderson could testify as to whether those records refer to Bonds, and whether he took blood and urine from Bonds for screening. As long as Anderson refuses, Illston ruled, that evidence is inadmissible hearsay. Over the past several years, Anderson has refused to testify against his longtime friend, despite the 14 months he spent in prison for contempt and the pressure the government has brought on his wife and mother-in-law. Both women might face tax-related charges, but Anderson's attorneys have said repeatedly that he will not testify no matter what the government does to them or him.
Anderson told Illston during a March 1 hearing that he would again refuse to testify if called. The trainer is scheduled to be in court Tuesday, when, if he follows through on his refusal, he is expected to be sent back to prison for the duration of the trial. Estimates are that the trial will run from two to four weeks.
Without Anderson, the government's case will be built around a line of witnesses who will say they had conversations with Bonds about his drug use.
Here's what the prosecutors have in their favor and how they'll try to win:
The MLB Test: The hardest piece of physical evidence against Bonds will be a urine sample he gave as part of Major League Baseball's testing in 2003. At the time, the test came back as negative. But after government agents seized the samples in 2004, they subsequently retested Bonds' urine and found it contained THG (the stealth steroid known as "the clear"), testosterone that likely was the result of his use of "the cream" (BALCO's other staple) and the masking drug Clomid -- used primarily as a female fertility drug.
By themselves, those results won't necessarily prove the government's case that Bonds knew what he was taking. In front of the grand jury, he testified that he used products from BALCO but that he believed they were benign. The fact that he had tested positive for the drugs in his system won't prove he was lying.
Meet Barry Bonds: Part of the government's strategy will be to paint Bonds as an unlikable superstar who considers himself unaccountable and who underwent significant physical and emotional changes as a result of his steroid use. His former mistress, Kimberly Bell; a disgruntled former business partner, Steve Hoskins; and a former teammate, Bobby Estalella, will testify that Bonds discussed his steroid use with them. Hoskins' sister, Kathy Hoskins, will testify that she saw Anderson inject Bonds with an unknown substance. She won't be able to say whether it was a steroid or not, but one of the perjury counts Bonds faces stems from his denial that Anderson ever injected him with anything.
The Plausibility Plan: The government also expects to call several former players connected with BALCO. They are expected to testify to being told that "the cream" and "the clear" were steroids and/or derivatives of steroids, designed to avoid detection. Prosecutors believe the jury, primed with stories about Bonds' notoriously prickly personality and astute attention to his body, will find it implausible that other athletes were told they were using steroids but Bonds was not.
|If Jason Giambi tells the court he knew what he was getting from BALCO, will jurors believe no one told Bonds what was in "the clear" and "the cream"?|
Loose Lips: One of the more damning pieces of evidence Illston has allowed is a tape Steve Hoskins made of a conversation he had with Anderson in the Giants' clubhouse, in which Anderson appears to describe injecting Bonds and indicate that Bonds was receiving an undetectable steroid:
ANDERSON: " Everything that I've been doing at this point, it's all undetectable."
ANDERSON: "See, the stuff that I have we created it. And you can't, you can't buy it anywhere. You can't get it anywhere else. But, you can take it the day of and pee "
ANDERSON: "And it come up with nothing."
HOSKINS: "Isn't that the same [stuff] that Marion Jones and them were using?"
ANDERSON: "Yeah, same stuff, the same stuff that worked at the Olympics."
But the defense team has responses ready for the evidence the government presents.
Until the past few weeks, almost everything had gone Bonds' way, from the day after the charges were filed in November 2007. Partly in response to defense motions, partly in response to criticisms from the judge, the government had to rewrite its indictment three times -- tweaking it to eliminate repetitive counts and downsizing it because of ambiguous questioning by prosecutors back when Bonds testified in December 2003.
More than anything, though, Bonds' odds for acquittal have been buoyed by Anderson's refusal to testify against his childhood friend. Without Anderson to verify that he took Bonds' blood and urine samples as part of the so-called BALCO conspiracy, the defense won't have to answer to positive tests that the government says reflect Bonds' use of the steroids methenolone and nandrolone in 2000 and 2001.
|Allen Ruby, one of Bonds' attorneys, has plenty of ammunition to counter the prosecution's case.|
Nor will Team Bonds need to deal with drug ledgers that are said to further implicate Bonds in doping. Also, because Anderson won't authenticate doping calendars he presumably made for Bonds, those, too, won't be presented to the jury.
Here are the arguments, then, that the defense is likely to present to counter the prosecution's main witnesses and other evidence:
Steve Hoskins: The defense attorneys will tell jurors they believe he's a guy who stole from Bonds, forged his signature and then secretly made an audio recording for the purposes of blackmailing his childhood pal. How can he be believed? As for the recording, the defense will insist it doesn't prove a thing. Even if the jury hears Anderson on the tape discussing how he provided Bonds with an undetectable steroid, so what? Bonds' lawyers will say it doesn't establish that Bonds knew what he was taking.
Kathy Hoskins: Defense lawyers will scoff at the notion that Bonds and Anderson would have allowed a personal shopper to witness the ballplayer being injected. And they will try to establish that she didn't even know what the trainer was injecting into Bonds.
Kimberly Bell: She was Bonds' girlfriend for nine years (and his mistress for some of that time), and the defense will portray her as being in the relationship strictly for the money. His lawyers will say she tried to extort cash from him, sought a book deal and posed nude for Playboy. Enough said. And the defense will question that she could remember what Bonds told her nine years ago.
Bobby Estalella: The ex-Giant is an admitted steroid user himself whose stories have varied wildly, the lawyers will say. And they'll raise the issue of why he would be the only ballplayer in whom Bonds confided.
|Former Giants catcher Bobby Estalella, shown here in 2000, is expected to testify that he discussed steroids with Bonds.|
Jeff Novitzky: The lead agent in BALCO, the defense will insist, has been out to get Bonds from the beginning. Team Bonds will portray Novitzky's case as little more than a witch hunt manipulated by a rogue IRS agent out to make a name for himself. The defense will bring up reports that he even talked with his fellow agents about penning a tell-all book.
The 2003 Positive Test: First, the defense will try to score by telling the jury that nothing showed up in Bonds' system the first time Major League Baseball analyzed this sample. (The government had to retest it to get a positive result.) Even then, his attorneys will point out, if in fact Bonds was positive for "the clear" -- which wasn't classified as a steroid at the time -- and "the cream," he already acknowledged taking those substances. But he said he thought they were flaxseed oil and an arthritic balm and that, if they were steroids, he had no clue.
Acquittal: As they say, it takes only one juror. The path to acquittal could be tracked in several ways. Not only does the government have to prove beyond reasonable doubt that Bonds lied, but prosecutors have to show that the lies were material to their investigation, that they inhibited the probe's progress. If Bonds is found not guilty on all charges, expect his supporters to seize on the moment for a steady stream of I-told-you-sos -- in spite of the ample evidence in the public domain that he used steroids beginning in 2000.
|Will he or won't he? Testify, that is. That decision could be a difference-maker.|
Guilty On All Counts: Federal sentencing guidelines suggest Bonds could get a maximum of 30 months in prison if found guilty on all five counts (four perjury, one obstruction of justice). However, history indicates he would have a great chance of serving no prison time at all. Two other BALCO-related perjury cases went to trial -- track coach Trevor Graham and former cyclist Tammy Thomas -- and both were found guilty on at least some of the charges. But despite requests from prosecutors that Graham and Thomas get jail time, Illston ordered only house arrest for both. In Thomas' case, the government sought 30 months in prison after she was found guilty on three counts of perjury and one count of obstruction of justice. However, Illston said it would be inequitable to give Thomas a hefty sentence when BALCO chief Victor Conte received only four months in prison for money laundering and steroid distribution.
Guilty On Some Counts: With five counts stemming from a variety of questions and answers, it isn't difficult to envision a scenario in which the jury finds Bonds guilty on some counts but acquits him on others. If that happens, prison time becomes even less likely. Expect a short term of house arrest, followed by probation.
Deadlocked Jury: In the Graham case, jurors deadlocked on two of the three counts against him. The votes were 10-2 and 11-1 in favor of conviction, but at least one of the holdouts indicated he was put off by the government's approach to the case. "The government was bound and determined to make an example of this defendant," jury foreman Frank Stapleton told the San Francisco Chronicle. "I hope this verdict satisfies the Justice Department's lust for blood and there is no retrial." In the Bonds case, prosecutors have been criticized for heavy-handed tactics in trying to persuade Anderson to testify against Bonds.
Regardless of the outcome, Bonds' image will be forever aligned with steroids, and his home run record will be forever questioned. Even while they will be kept out of evidence at trial, the positive tests from 2000 and 2001, as well as the positive MLB test from 2003, leave no doubt that Bonds' career was steroid-fueled. Assuming he doesn't resume his career, his first year of eligibility for the Hall of Fame will be 2013. That vote will say a lot about how he is remembered.
Mark Fainaru-Wada, co-author of "Game of Shadows," and T.J. Quinn are reporters for ESPN. Lester Munson, a Chicago lawyer and journalist who reports on investigative and legal issues in the sports industry, is a senior writer for ESPN.com. Fainaru-Wada can be reached at firstname.lastname@example.org. Quinn can be reached at email@example.com.