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Some fun evidentiary fights in the Barry Bonds trial

Feb 15, 2011, 6:26 AM EDT

Barry Bonds court appearance

There’s an article in the New York Daily News today that gives a rundown of some of the evidentiary fights the Barry Bonds prosecution and defense are having.  Among them:

  • Bonds’ ex-girlfriend Kimberly Bell posed in Playboy and told them her story back in 2007. The government wants Bonds barred from mentioning that and showing photos from the magazine;
  • The prosecution wants Bell to testify about Bonds being mean and disrespectful to others, that his temperament changed over time and that he once threatened someone with violence;
  • The government wants to present photos of Bonds from various stages of his career to show the changes in his physique; and
  • The government wants the judge to disallow Bonds’ attorneys from suggesting that the government had a vendetta against Bonds and singled him out for prosecution.

Litigation is rough business, obviously, and of course each side is going to try to get in anything they can to win. But these particular evidentiary fights — however the law demands that they be decided — do paint an illuminating picture of how absurd this prosecution really is.

An allegedly key witness told her story once for profit and fame, but prosecutors want to keep anyone from using that to attack her credibility. Of course, this whole prosecution is about bringing down a famous person, so it’s amusing that Bonds probably won’t be allowed to go there.

Saying a prosecution is a vendetta or that a defendant was singled-out is generally not admissible, but it’s certainly the case that those less famous than Bonds who testified most similarly to Bonds such as Benito Santiago aren’t in the dock. There is no escaping that Bonds was singled out here — it’s probably the biggest thing animating the general zeitgeist of the thing —  so, again, it’s amusing in a pathetic sort of way that Bonds probably won’t be allowed to go their either.

Evidentiary rules generally prohibit prosecutors from putting on evidence of a witness’ character when those character traits have nothing to do with the charges, but the prosecution wants to tell the jury that Bonds was a meany-head.  Maybe this comes in as evidence of “roid rage,” but I don’t see how this isn’t the same thing as the prosecution telling the jury that Bonds is just a bad seed, so you probably should just convict him.

Finally, anyone who knows anything about athletes and steroids knows that it’s possible for someone to take steroids and not have dramatic changes to their physique. Indeed, we mock the sports writers who play that “that dude got huge, so he must be juicing” game.  But really, that’s a big part of the prosecution’s game here. The prosecution is basically Murray Chass.

Maybe the prosecution should, legally speaking, win all of these battles.  But the issues they’re raising seem to say more about the nature of the Barry Bonds prosecution than they do about whether Barry Bonds lied under oath.

  1. jkcalhoun - Feb 15, 2011 at 9:14 AM

    Link alert — the link to the Daily News article isn’t functional. Is this it?

  2. Chris Fiorentino - Feb 15, 2011 at 9:42 AM

    It is amazing that the prosecution has succeeded in making Barry Bonds a sympathetic figure. That’s about the only thing those buffoons have accomplished here. And if they aren’t careful, they might also make Roger Clemens seem sympathetic…nah, I don’t think that is EVER going to happen.

    • chrisny3 - Feb 15, 2011 at 10:26 AM

      I have zero sympathy for someone who duped the fans and made a fortune by being one of the games biggest cheats and juicers.

      I am rooting for the “buffoons” to win.

      • JBerardi - Feb 15, 2011 at 10:53 AM

        Won’t somebody PLEASE think of the children?!

  3. chrisny3 - Feb 15, 2011 at 10:23 AM

    “…and told them her story back in 2007. The government wants Bonds barred from mentioning that and showing photos from the magazine.”

    Actually, the DN article just mentions “photos” which the prosecution wants to bar. Nothing about the “story” itself. I can understand the governments point in this instance.

    Craig, you then continue to lambast the prosecution based on their attempt to bar the “story” which the witness sold, but if it’s true they only want to bar the “photos” as the DN implies, then once again you have inaccurately portrayed a news story or part of it in order to make it fit your personal perspective and rant. I don’t know if this is just more sloppiness on your part and/or you really just need to drink your coffee before attempting these early morning posts … or you’re just reckless and don’t really care. In any event, I don’t think it reflects well that you so often misrepresent a key part of a story. Especially when it’s a legal issue.

    “Saying a prosecution is a vendetta or that a defendant was singled-out is generally not admissible, … so, again, it’s amusing in a pathetic sort of way that Bonds probably won’t be allowed to go their either.”

    Huh? You admit selective prosecution isn’t a legal defense but then you say it’s amusing/pathetic that Bonds can’t use it as a defense???? Why should he be able to use a defense that millions of ordinary defendants can’t use every day??? Whether it is or isn’t a selective prosecution is pretty irrelevant here.

    “…but I don’t see how this isn’t the same thing as the prosecution telling the jury that Bonds is just a bad seed, so you probably should just convict him.”

    Because if you can show his behavior changed roughly the same time as when he is alleged to have started his heavy juicing, then you have a good chance to convince a jury it was primarily due to roid rage.

    “Finally, anyone who knows anything about athletes and steroids knows that it’s possible for someone to take steroids and not have dramatic changes to their physique.”

    Right. But a dramatic change in body physique after an age where most adults have done most of their growing is highly suspicious — especially when your head grows to the size of a watermelon.

    • jkcalhoun - Feb 15, 2011 at 10:56 AM

      For what it’s worth, the San Jose Mercury News says the prosecution is seeking to bar “her interview and pictorial”.

      Not at all puzzling that the DN would lead with the pictures.”New York’s Picture Newspaper””, is what they tell me.

      • chrisny3 - Feb 15, 2011 at 11:31 AM

        And the San Francisco Chronicle seems to concur with the Daily News that the request is limited to visual material — IOW, the defense can bring up the content of Bell’s interview with Playboy when they cross examine her, they just shouldn’t be allowed to pass around the magazine with nude photos to the jury.

        http://www.sfgate.com/cgi-bin/article.cgi?f=%2Fc%2Fa%2F2011%2F02%2F15%2FBAFI1HN4N2.DTL

        I’m going to bet that the Daily News and SF Chronicle — who has been in the lead on the
        Bonds story from its inception — are correct.

      • jkcalhoun - Feb 15, 2011 at 11:36 AM

        I think the Chronicle probably is correct in its report that:

        Prosecutors asked the judge to bar Bonds’ lawyers from showing the magazine to the jury.

        I think the interview was also contained in the magazine the prosecution wants to bar. Didn’t read it myself, of course.

      • chrisny3 - Feb 15, 2011 at 11:52 AM

        Exactly. And, as I said, this doesn’t preclude the defense from bringing up the interview in cross or from submitting a transcript of the interview as evidence.

        So the Daily News appears to be correct, and the San Jose Mercury News (and others) appear to be incorrect. It doesn’t matter whether “New York’s Picture Newspaper” leads with cartoons or puzzles if they wanted to …. what’s more important is to be accurate as they appear to be.

      • jkcalhoun - Feb 15, 2011 at 8:27 PM

        You misinterpret my comment, which is meant to imply that they can all be correct. Neither the DN, which says nothing specifically about barring the interview, not the Chronicle, which is ambiguous on that topic, contract the Mercury’s report about the interview and pictorial.

      • chrisny3 - Feb 16, 2011 at 12:09 AM

        Both the Daily News and the SF Chronicle strongly imply the request is aimed at barring ONLY the nude photos. The Mercury News clearly states that the request is to bar both the story and the photos. So while the “contradiction” between those papers isn’t clear, it’s nonetheless there, especially when viewed within the context of known law. There is no known reason why a judge would bar the Bell interview outright, or why the prosecution would even ask her to do it. It is frequently brought up in court when a witness has been paid to do interviews or make appearances. That in itself is nothing extraordinary. What would be out of the ordinary, possibly inflammatory, and prejudicial is to have nude photos of the witness passed around the jury. So it’s common legal sense to just request that the photos be barred but nothing else.

        I suspect the DN and SF Chronicle are correct & the government has only requested that the photos themselves (the physical magazine) be barred.

  4. Kevin S. - Feb 15, 2011 at 10:24 AM

    Craig, why should the prosecution win all those battles? Maybe I just watch Law and Order too much, but defense questions the motivations for a witness coming forward all the time. And, well, the government pretty clearly does have a vendetta against Barry Bonds. Is the defense allowed to mention all the government improprieties throughout this case (the illegal seizure of all players’ test results, Novitzky being the world’s biggest tool, etc)?

  5. cur68 - Feb 15, 2011 at 1:44 PM

    Isn’t the American economy and the California economy in particular in the tank? Why are taxpayers dollars being wasted chasing after this guy when lots of others did what he did and aren’t being chased? There’s some pretty heated posting going on but it seems like a real stretch to me that this is some huge crime thats worth all this money, trouble and vitriol. All I hope is that I’m selected for jury duty if this goes ahead (fat chance; I live in Canada) and we get to see the star witness’ goodies in Playboy. Thank all the deities of monkeys and men for the internet. Now how did you spell her name again?

    • chrisny3 - Feb 15, 2011 at 3:32 PM

      Why are taxpayers dollars being wasted chasing after this guy when lots of others did what he did and aren’t being chased?

      Can you name some of the “lots of others” who lied under oath before a grand jury and who aren’t being chased??

      • Kevin S. - Feb 15, 2011 at 4:56 PM

        Benito Santiago and Rafael Palmeiro, for starters. And it’s not the fact that they’re pursuing Bonds for perjury, it’s the degree to which they’re doing it and the flimsiness of their case. It’s the fact that the initial questioning was incredibly vague and seemed more an attempt to trap Bonds in a “Gotcha!” situation. It’s the fact that Bonds’ testimony was unnecessary to win an indictment against the BALCO defendants in the first place and seemed more designed to ruin the reputation of the players testifying.

      • chrisny3 - Feb 15, 2011 at 6:40 PM

        AFAIK, there have never been any perjury allegations against Santiago. Provide a link if you think otherwise. And while they suspected Palmeiro of perjury, they had ZERO proof. His positive test came after he testified before congress. So, again, where are all these “lots of others?”

        You may think the prosecutor’s case is flimsy but that is for the jury to decide. I think that despite the judge throwing out some of the evidence, the government’s case is strong.

        And how in the world would anyone know if Bonds’ testimony would be critical to a BALCO conviction or not before they questioned him under oath? That’s what a grand jury is for. Bonds was linked to BALCO as a client of their illegal steroids distribution. So of course you question the clients. ALL of them. He was never a target of their prosecution. They never go after the users. He only became a target when he decided to lie under oath.

  6. jkcalhoun - Mar 2, 2011 at 9:12 AM

    Prosecutors had asked Illston to bar the photos and the article from being used “to inflame the jury’s prejudice against Bell, to portray her as unworthy of belief because of her physical appearance and sexuality.”

    From <a href="http://www.bloomberg.com/news/2011-03-02/playboy-photos-of-bonds-s-mistress-can-t-be-shown-at-trial.html"Bloomberg.

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