By Brittany Clement

The Barry Bonds trial is now in the hands of the jurors.  Both the prosecution and defense rested this week, but not after some late-inning drama from the prosecution, which tried valiantly to rescue its tattered case with a “miracle” tape recording in which Bonds’ former personal assistant Steve Hoskins and Bonds’ former orthopedic surgeon Arthur Ting allegedly discuss Bonds’ steroid use.  The presiding judge threw it out.  Bonds faces three counts of perjury (the government dropped yet another charge this week) 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, April 4:

            Prosecutors sought to introduce a tape Hoskins somehow discovered over the weekend that would corroborate his testimony that he and Ting had conversations about Bonds’ steroid use.  Ting had testified they never had such conversations.  Prosecutors emailed Bonds’ defense attorneys at 11 p.m. Sunday night informing them Hoskins had found the tape in a rented storage facility.  The defense derided the tape a “miracle” and urged District Judge Susan Illston not to admit it.  See Juliet Macur, Recently Found Tape Excluded from Bonds Trial, New York Times, April 5, 2011.  Illston seemed unimpressed with the mostly inaudible tape.  See Juliet Macur, Lost Tape is Found in Trial of Bonds, New York Times, April 4, 2011.

            The prosecution, defense, and Judge Illston were able to have these discussions outside the presence of the jury because Illston sent the jury home for the day after one juror called in sick with kidney stones.  See id.

Tuesday, April 5:

            Judge Illston excluded the Hoskins-Ting tape, finding most of it barely intelligible and finding the parts that were audible irrelevant to the case.  In the tape, Hoskins says, “Barry’s the main one they supply stuff to,” when referring to the BALCO raid.  Ting simply answers, “Yeah.”  When Hoskins says narcotics agents were involved in the raid, Ting answers, “Because of the drugs.”  As Judge Illston noted, these responses are hardly conclusive evidence of Bonds’ steroid use or of Hoskins’ claim that he and Ting had about 50 conversations about such use.  The exclusion was clearly a victory for the defense, although Illston told the defense it could not use the lack of the tape as evidence of Hoskins’ poor credibility.  See Juliet Macur, Recently Found Tape Excluded from Bonds Trial, New York Times, April 5, 2011.

            The government was able to continue its examination of anti-doping expert Don Catlin, its final witness in the trial.  Catlin testified that Bonds’ 2003 urine sample tested positive for several drugs currently banned by the World Anti-Doping Agency.  See id.  Although that proves Bonds’ steroid use, which is basically a foregone conclusion at this point, it is unclear how it adds to the government’s claim that Bonds knowingly used steroids.

            The government ended the day and rested its case by reading all 114 pages of Bonds’ grand jury testimony to the jury.  See id.

Wednesday, April 6:

            The defense rested – without calling a single witness.  The defense had initially indicated it would call six witnesses, including Bonds himself, but it’s likely the defense didn’t want any surprises on the stand and was concerned about Bonds coming off poorly to the jury.  Additionally, according to a professor at the University of California Hastings College of Law, calling no witnesses “is basically saying the government’s proof isn’t strong enough to make its case.”  See Juliet Macur, Bonds’s Defense Rests Without Calling a Witness, New York Times, April 6, 2011.

            The prosecution certainly didn’t have any proof for one of its charges, a perjury charge related to whether Bonds took “anything” other than vitamins from Greg Anderson, his personal trainer, before the 2003 baseball season.  Prosecutors dropped the charge Wednesday after Judge Illston indicated she would throw it out because the prosecution had failed to introduce evidence to prove it.  Illston pressed prosecutors on what they meant by “anything,” asking, “What was it, a milkshake?”  See id.  Illston’s comment drew laughter from the courtroom, evidence that even this late in the game, the prosecution is struggling to make a serious case for itself.  After all, the government originally charged Bonds with fourteen counts of perjury, and has since reduced the counts three times.

            Prosecutors did score a minor victory.  Judge Illston refused a defense motion to strike testimony from Kimberly Bell, Bonds’ former mistress, about his shrinking testicles, despite the fact that Ting testified last week that such shrinkage could have been caused by legal steroids, not just illegal anabolic steroids, as the prosecution claimed.  (I’d like to point out that this is the fourth blog posting on this case in which I’ve had the privilege to write about Bonds’ shrunken testicles.)

 Thursday, April 7:

            The prosecution and defense offered closing arguments before handing the case over to the jury.  The prosecution emphasized how easy it would have been for Bonds to tell the truth in his 2003 grand jury testimony, claiming Bonds lied to protect his accomplishments.  The government’s argument on this point seems, quite frankly, silly.  If it was easy for Bonds to tell the truth, it hardly seems like he’d have reason to lie.  And let’s be honest, Barry Bonds will not be inducted into the Baseball Hall of Fame, grand jury testimony aside.  Hall of Fame voters have already shunned players tainted by the steroid era, regardless of whether they openly admitted use or not.  See Nick Scala, The Trials of Barry Bonds, CharlestonGazette, March 30, 2011.  If the government only ever sought to diminish Bonds’ accomplishments, it hardly seemed worth the $6 million spent on the case.  Let’s not forget Bonds’ recording-breaking 756th homerun ball is sitting in the Hall of Fame with a giant asterisk branded onto it.  See Jack Curry, Barry Bonds ball goes to the Hall, asterisk and all, New York Times, July 2, 2008.

            The government made a much stronger argument by asking whether a major league athlete would have been “unwittingly duped into using steroids.”  See Juliet Macur, After Final Entreaties, Jury Gets Bonds Case, New York Times, April 7, 2011.  This is clearly what most people, including myself, must think about Bonds and other steroid users, but the government raised this argument far too late in the game.  It could have pressed the issue when it brought other baseball players to the stand.  It could have asked its anti-doping experts about the likelihood that a professional athlete would unknowingly take steroids, and even if he did, whether he would fail to notice the side effects.  Instead the government wanted to talk about Bonds’ small testicles and big head, and bring its best argument long after jurors have made their first impressions about the case.

            The defense pounced on this weakness in the government’s case, telling the jury, “This business about Barry’s head getting bigger, to use a legal term, is stupid.”  See id.  The defense also claimed the government only went after Bonds because of his fame and strong personality.  This point is almost surely true, as the government rarely wastes its time on perjury charges unless the defendants are high-profile (think Marion Jones and Lil’ Kim).  However, raising Bonds’ often surly personality to the jury may not have been the defense’s best tactic.

            The defense’s strongest argument was attacking the credibility of the government witnesses, most notably Hoskins and Bell.  Both received immunity in exchange for their testimony, and both bitterly ended their relationships with Bonds shortly before cooperating with the government.  See id.  Given Ting’s clear contradiction of Hoskins’ testimony, jurors must surely be taking Hoskins’ motives into account when deliberating about his testimony.

Friday, April 8:

            Jurors deliberated for about six hours and broke for the weekend without returning a verdict.  During the day, they asked Judge Illston for information on two pieces of evidence.  First, jurors asked to hear or read a transcript of the testimony of Kathy Hoskins, Bonds’s former personal shopper who said she had seen Bonds received an injection from Anderson.  Second, jurors asked for a copy of the full transcript of the 2003 conversation between Hoskins and Greg Anderson, in which Anderson discusses injecting Bonds with a substance.  The full transcript had not been admitted into evidence, so the jury could only listen to the recording in the courtroom.  The jurors were given a transcript to help them decipher the conversation but could not bring the transcript back to the jury room.  See Juliet Macur, Bonds Jury Ends Deliberations for the Day, Bats: The New York Times Baseball Blog, April 8, 2011.

            It seems the jury is primarily focused on the perjury charge that Bonds lied when he testified that no one but his doctor or a San Francisco Giants team trainer injected him with anything.  See id.  This charge is the government’s best chance for a conviction, but the jury’s request to see and hear the relevant evidence again may raise doubts over whether the government adequately proved its case.  That remains unclear until the jury renders its decision next week.