4/1/2011

By Brittany Clement

            The prosecution’s case against Barry Bonds went from risqué to risky this week, as it began with graphic testimony from Bonds’ former mistress about changes to his body throughout their relationship, and ended with Bonds’ former orthopedic surgeon contradicting last week’s testimony by Steve Hoskins, Bonds’ former friend and personal assistant.  Bonds faces four counts of perjury and one count of obstruction of justice relating to statements he made to a grand jury in 2003 about his use of performance enhancing drugs.  Like last week, here’s a rundown of the week’s highlights:

Monday, March 28:

            Bonds’ former mistress Kimberly Bell testified about everything from Bonds’ acne, hair loss, testicle shrinkage, and presumable use of erectile dysfunction medication in order to maintain an erection during the later years of their relationship.  Bell and Bonds dated from 1994 to 2003.  Bell also provided tearful testimony about changes in Bonds’ personality and instances in which he threatened her with physical violence, such as threatening to cut off her head, cut out her breast implants, and burn down her house.  Apart from the government’s obvious attempt to embarrass Bonds and attack his character with the testimony, prosecutors said the testimony illustrated symptoms of steroid use.  Bell, however, said she only talked to Bonds about his possible steroid use once, in 1999, after he said his use of steroids caused an elbow injury.  See Juliet Macur,Former Girlfriend Explicitly Details Changes in Bonds, New York Times, March 28, 2011.

            Even if Bell’s testimony tends to prove steroid use, the government would be wise to remember it is prosecuting a perjury case, not a steroid case.  No one seriously doubts Bonds’ use of steroids at this point.  What is at the crux of the trial is whether the government can prove beyond a reasonable doubt that Bonds lied in 2003 when he said he never knowingly used steroids.  Surely Bell’s testimony about their 1999 conversation is relevant to that inquiry, but it’s hard to believe the jury will equate poor sexual performance, pimples, and a few violent outbursts with Bonds knowing he used steroids.  On the issue of the violent outbursts, I find it hard to believe the presiding judge even admitted such evidence, as – again – it is hardly probative of the real issue in the case, and extremely prejudicial to Bonds.  Rule 403 in the Federal Rules of Evidence gives judges discretion to exclude evidence when its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury.  Although this evidence certainly raises all three concerns, hopefully the jury will be able to separate the government’s desperate sensationalism from the actual legal issues involved.

            Even Bonds had to laugh at the ridiculousness of trial at one point during Bell’s testimony.  On cross-examination, Bonds’ lawyers generally tried to impeach Bell’s credibility by claiming she was only out for money and vindication after a bitter breakup.  Bonds’ lawyers also called Bell out for claiming Bonds had problems with sexual performance, while also accusing Bonds of sleeping with several other women.  “This is the guy who you described as having penile dysfunction,” Bonds’ attorney Cristina Arguedas said.  “That’s a lot of action.”  As the Associated Press described it, upon hearing this, “Bonds covered his mouth in an apparent attempt to suppress a grin.”  See Ex-mistress: Bonds blamed steroids for injury, Associated Press, March 28, 2011.

Tuesday, March 29:

The government brought in the big league witnesses on Tuesday, with former Major League Baseball teammates and opponents of Bonds testifying about their interactions with trainer Greg Anderson, who is currently in jail for refusing to testify against Bonds.  Jason Giambi, who currently plays for the Colorado Rockies, testified that he provided blood and urine samples to Anderson, Anderson told him MLB tests would detect the steroid he had been taking, and Anderson then mailed him undetectable steroids.  Giambi’s younger brother, Jeremy Giambi, testified that he also received steroids from Anderson and that Anderson told him they were undetectable steroids.  Marvin Benard, Bonds’ former teammate on the San Francisco Giants, testified that he sought out Anderson after buying steroids in Mexico, and Anderson provided him with better, undetectable steroids that Anderson administered to Benard once, but that Benard mostly administered himself.  See Juliet Macur, Players Detail Dealings with Bonds’s Trainer, New York Times, March 29, 2011.

The Giambis’ and Bernard’s testimony is supposed to establish that Anderson told the athletes to which he provided steroids that they were, in fact, receiving steroids.  Under this logic, the government hopes to prove Bonds’ claim to the 2003 grand jury that he thought Anderson was giving him harmless substances was, therefore, a lie.  However, as Bonds’ attorneys have already argued when trying to suppress these witnesses, one athlete’s interaction with Anderson did not necessarily translate to others’ interactions.  For example, it appears Jason Giambi and Benard had already decided to take steroids before approaching Anderson, and Anderson merely allowed them to continue their use – just undetected.  It appears Jeremy Giambi went to Anderson for steroids after learning his older brother had gotten steroids from him.  In the case of Benard, it isn’t even entirely clear Anderson told Benard that he gave him steroids.  Bonds’ attorney Allen Ruby asked Benard: “In fact, Mr. Anderson never told you, ever, that he gave you an undetectable steroid, isn’t that the truth?”  According to the New York Times, “[s]miling, Benard said, “‘I don’t remember.’”  See Juliet Macur, Velarde Says He Received Drugs and Injections from Bonds’s Trainer, New York Times, March 30, 2011.

Aside from Benard’s testimony casting doubt on how much Anderson really told his athletes, comparing Bonds’ relationship with Anderson to the other athletes’ relationships is hardly fair.  Anderson was not only Bonds’ personal trainer, but also his close friend.  Bonds, therefore, was less likely to go to Anderson solely for steroids and more likely to trust his judgment as a friend.  The defense should rightly urge the jurors to take those differences into consideration.

Wednesday, March 30:

The government had little to add, with only one more athlete, former New York Yankee Randy Velarde, taking the stand.  Velarde testified that Anderson initially gave him performance enhancing pills, but when those didn’t work, he met Anderson in parking lots to receive injections of steroids or human growth hormone.  See Juliet Macur, Velarde Says He Received Drugs and Injections from Bonds’s Trainer, New York Times, March 30, 2011.

Thursday, March 31:

            The prosecution’s own witness dealt the government’s case a serious blow, as Bonds’ former orthopedic surgeon Arthur Ting contradicted the testimony of Steve Hoskins, Bonds’ former friend and personal assistant, who testified last week that he spoke with Ting about Bonds’ steroid use on several occasions.  In contrast, Ting said he and Hoskins had one brief conversation about steroids, in which Hoskins merely requested generic steroid information.  Bonds’ name never came up.  Ting also testified that the symptoms Bell listed in her testimony on Monday could have been caused by legal corticosteroids that Ting prescribed for Bonds following a 1999 surgery, and not necessarily illegal anabolic steroids.  By undercutting the prosecution’s two key witnesses, Ting has left the government’s case in shambles.  This development was not lost on the presiding judge, who grilled the prosecutors about whether they knew about the inconsistencies between Ting’s and Hoskins’ testimony before allowing Hoskins to appear before the jury.  See Craig Calcaterra, Not the best day for the prosecution in the Barry Bonds case, NBC Sports, March 31, 2011.

            The government fared better with its second witness, Kathy Hoskins, Bonds’ former personal shopper and Steve Hoskins’ sister.  Kathy Hoskins testified that she actually saw Anderson inject Bonds with something – a claim no other witness has made, including Steve Hoskins – but that she did not know what it was, except that Bonds said it was undetectable.  If the jury buys her testimony, which is less likely now given her connection to Steve Hoskins and the government’s unfortunate placement of her testimony behind Ting’s, that could be enough to convict Bonds on one count of perjury.  See id.  In addition to claiming he never knowingly used steroids, Bonds also claimed in his grand jury testimony that Anderson never injected him with anything.  It’s not the government’s best perjury charge, but it may save prosecutors from total embarrassment.

            On the other hand, Ting’s testimony seems too powerful to give the government any benefit of doubt onany of the perjury charges.  After writing for weeks about the government’s weak case, I still found myself shocked that the prosecutors could be so incompetent as to send a witness to the stand that not only contradicted one of its key witnesses, but also undermined the already unnecessarily raunchy and hardly helpful testimony of yet another key witness.  (Have I mentioned the government has spent $6 million on this?)  At this point, it’s clear the judge has grown impatient with the government’s case, and it’s not a stretch to think the jury feels the same way.  With closing arguments nearing, the prosecution has little time and little remaining credible evidence to save face.

A Look Ahead:

            On Monday, the trial will continue with testimony of anti-doping expert Don Catlin, which began on Thursday.  Catlin is the government’s last witness, and depending on whether the defense calls any witnesses, both sides may offer closing arguments on Tuesday.