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Bonds prosecutors get an evidentiary win

Feb 16, 2011, 8:19 AM EDT

Barry Bonds suit

Yesterday I outlined some of the things I thought were on the silly side when it came to the evidentiary battles in the Barry Bonds prosecution.  There was a ruling yesterday, however, that is not at all silly. At least if you’re Barry Bonds:  the judge will allow prosecutors to play a recording to the jury in which Bonds’ trainer Greg Anderson tells former Bonds business partner Steve Hoskins that he injected Bonds with undetectable steroids.  The transcript of the recording, which was unsealed a couple of years ago, is as follows:

Anderson: [E]verything I’ve been doing at this point is undetectable.

Hoskins:Right.

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.

Hoskins: Uh-huh.

Anderson: And it comes up with nothing.

Hoskins: Isn’t that the same [expletive] that Marion Jones and them were using?

Anderson: Yeah same stuff, the same stuff that worked at the Olympics.

That recording was the subject of a boatload of litigation by Anderson in connection with his own conviction several years ago. He contended that it was illegally obtained by Hoskins, though ultimately the court did not agree.  Even so, the judge presiding over those proceedings called the tape “as worthless a piece of evidence as I’ve ever seen.”

Maybe that’s so in connection with Anderson’s prosecution, but it’s damaging to Bonds.  Not mortally so in that nothing on the tape speaks to Bonds’ knowledge of what he was being injected with and that’s what’s at issue here.  Indeed, Bonds has long claimed that he knew nothing about what Anderson gave him. The only person who can truly prove that Bonds is lying about that is Anderson and he’s not testifying. But in some ways a tape of Anderson talking about all of this may be more damaging than him actually being there. There’s an illicit quality to it, ya know? It’s all so CSI and juries love that.

Still, I don’t think the case is going to turn on the tape for a couple of reasons.  One reason is that, if Bonds’ lawyers are smart, they’ll paint the absent Anderson as a malevolent figure from the outset.  They can’t and won’t claim that Bonds never took steroids — even Bonds himself suggested in his grand jury testimony that, yeah, in hindsight he did take steroids — they’re claiming that he never knew.  In doing that they’re going to portray Anderson as some training Svengali to whom Bonds simply abdicated his decision making.  You or I may not believe it — I don’t* — but that’s their case. It has to be their case.

And it’s an all or nothing case.  It’s a case that will have to gain purchase in the jury’s mind early.  If it’s doubted at all from the outset — from opening arguments on — there is nothing the defense can do to rehabilitate it because they have no evidence themselves that affirmatively establishes Bonds’ ignorance.  How could they?

At the same time, if the jury believes the defense it will likewise believe it from the beginning . If the jury believes the general idea — if it buys the theme — there is nothing the prosecution can do to rehabilitate its own case because the prosecution has no evidence that affirmatively shows’ Bonds’ knowledge. Not even this tape, which doesn’t speak at all to what Barry Bonds knew.

Indeed, I think that by the time the tape is played, the jury will have made up its mind one way or another. If they’re skeptical of Bonds’ overall defense to begin with, the tape will bolster that skepticism. If they believe Bonds they will dismiss it because it doesn’t jibe with their assumptions.  I don’t see it as a game-changer.

*The fact that I say I don’t believe Bonds didn’t know what he was taking may surprise you given how pro-Bonds I’ve been though this whole prosecution.  That opens up a whole different topic.  One that’s complicated enough that I think is worth its own post.  A post that I’ll put up in a few minutes.

 

  1. Kevin S. - Feb 16, 2011 at 9:00 AM

    If I’m not mistake, weren’t the cream and the clear not even illegal at the time Bonds was taking them, precisely because the government didn’t know enough about them to classify them?

    • paperlions - Feb 16, 2011 at 9:18 AM

      Yes, they were illegal, production, distribution, possession, and use of all anabolic steroids without a prescription for an approved treatment/condition is illegal, it law doesn’t require any designer steroid to be discovered and added to a list. If it is an anabolic steroid, it is illegal as soon as it is first created.
      .
      Of course, the law is a pretty dumb law and its origins are shady, but that is another discussion.

      • jkcalhoun - Feb 16, 2011 at 9:39 AM

        That is true now but was not true then. The clear was legal at the time.

      • Kevin S. - Feb 16, 2011 at 9:42 AM

        I thought they weren’t anabolic. Could be wrong, though.

      • chrisny3 - Feb 16, 2011 at 4:40 PM

        They were anabolic steroids and illegal both then and now.

      • jkcalhoun - Feb 17, 2011 at 12:08 AM

        THG was made illegal under the Anabolic Steroid Control Act of 2004. You can read it or not; it’s not my business whether you want to bother with the facts.

      • chrisny3 - Feb 17, 2011 at 8:43 AM

        No, THG was covered under the general ban of anabolic steroids added in 1990 to the Controlled Substances Act. So it was illegal back when Bonds took it. You can read it or not; it’s not my business whether you want to stick your head in the sand.

      • jkcalhoun - Feb 17, 2011 at 8:55 AM

        I would suggest that you do more reading on that.

      • jkcalhoun - Feb 17, 2011 at 9:03 AM

        You may wish to start here.

      • chrisny3 - Feb 17, 2011 at 9:40 AM

        And I would suggest you try to read more carefully. How is your link relevant to the issue here?

      • jkcalhoun - Feb 17, 2011 at 10:40 AM

        Depends on what you want to make the issue here.

        The link is relevant because it confirms that the 1990 act was insufficient to classify THG as an anabolic steroid under the law. It states that that law was amended by the 2004 act specifically to include certain substances that had not been covered, such as THG.

        You may wish to argue that the 2004 act wasn’t necessary to cover THG under the 1990 law. If so, you would be wrong.

        But you may say what you like, of course. I’ve done my bit to help.

      • chrisny3 - Feb 17, 2011 at 11:20 AM

        No where in that link does it say the amendment to the previous act was made because the previous act was “insufficient.” Nor does that article in the link say THG “had not been covered” by the earlier act. The point being, it is not uncommon to amend an act to merely add specificity and clarification without saying or meaning that the behavior banned in the amendment wasn’t covered by the first act.

        THG is derived from anabolic steroids and is currently classified as an anabolic steroid. Anabolic steroids –as a class — were banned and illegal when Bonds took THG.

        If you’re trying to argue that Bonds didn’t think THG was a steroid because it wasn’t well known as one or specifically named in a law banning steroids at that time, I think the prosecution will be able to easily show that clients of BALCO were told point blank that they were taking “a steroid” when they took the “clear.” That that was their distinct understanding as well. I believe there are many athletes on the prosecution witness list for this trial.

      • jkcalhoun - Feb 17, 2011 at 11:59 AM

        I’m not arguing anything about what Bonds thought. Both sides of that case will do a better job than I can do on that subject. I was just pointing out that what you said in response to Kevin S. was not correct.

        So, to get past this, here is the specific flaw in your reading of the 1990 act: it required a definite determination of whether the steroid promotes muscle growth. Summary of the material you’ll find if you follow that link: for drugs that would otherwise qualify under that act, if no such determination had been made they were not legally classifiable as anabolic steroids. Of course designer drugs such at THG that were unknown to the DEA could not have qualified; this is part of the reason for the amendment of 2004.

        So, that’s it now, yes?

        I have to say that I wish you had followed up on that yourself instead of arguing with me about it. I don’t know what you’re used to, but I don’t find that posters here typically push points of fact without some reason for it — they could be mistaken, of course, but if someone from a group of normally reasonable folks says you’re dead wrong, a little more research to confirm your position can’t be a bad idea, no?

      • chrisny3 - Feb 17, 2011 at 3:10 PM

        So, your reply was based on an “obscure” legal loophole which you neglected to mention or even prove initially even when I asked you to do so? The spirit and intent of the original 1990 law was to ban ALL anabolic steroids as a class, regardless of their origin. They didn’t plan for undetectable, derivative/designer steroids.

        “I have to say that I wish you had followed up on that yourself … I don’t know what you’re used to, but I don’t find that posters here typically push points of fact without some reason for it … a little more research to confirm your position can’t be a bad idea, no?”

        Huh? Follow up on what? In your initial replies to me, since you didn’t mention a legal loophole regarding “muscle growth” — and your first link didn’t mention a legal loophole — there was nothing to follow up on.

        I posted that the original act of 1990 banned anabolic steroids as a class — and that TGH was an anabolic steroid — and I was correct. It’s up to you to give a reasonable counter-argument as to why THG wouldn’t fall under the 1990 act. You failed to do so until your latest reply. The ball was in your court and you failed. I was incorrect, but you were unable to express why. If you plan to argue with someone in the future, you need to back up what you say with specifics. That’s what I am “used to.”

        Moreover, this issue was brought up by someone else in the context of the Bonds trial. As if any legal loophole would insulate Bonds from a perjury conviction. Regardless of the loophole, I think the court/jury will find it has little bearing on whether Bonds knowingly lied under oath. Just wanted to throw that in there because it is relevant.

      • jkcalhoun - Feb 17, 2011 at 5:56 PM

        I don’t know what to say but you’re welcome. There’s no need to thank me again, especially not like that, should you also turn out to be wrong about the scope of the motion regarding the Playboy material.

        Other than that, well, there isn’t going to be anything other than that. It’s very clear I can be of no further use to you.

      • chrisny3 - Feb 17, 2011 at 6:40 PM

        It seems your not knowing what to say is a strong trait of yours, as evidenced by your inability to explain initially why you felt THG was not covered by the earlier controlled substance act.

        I suspect when it comes to Playboy, you will end up needing to thank me for correcting your hasty and erroneous attempt at correcting my interpretation of the DN article. But don’t bother. It was my pleasure.

        As for your uselessness, at last, that’s something we can agree on. So far you have attempted to correct me twice. You have essentially failed twice. Well, OK, I’ll give you half credit for belatedly bringing up the legal loophole on THG.

  2. paperlions - Feb 16, 2011 at 9:19 AM

    Won’t it be hard to paint Anderson as malevolent when he spent so much time in jail to protect Bonds?

  3. stigly - Feb 16, 2011 at 3:51 PM

    This case is such BS. We have bigger fish to fry in this country. Let’s drop this case and chalk it up to the deficit. What a waste of taxpayer money.

  4. chrisny3 - Feb 16, 2011 at 4:36 PM

    “You or I may not believe it — I don’t*”

    If you, a Bonds supporter, doesn’t believe it, then the jury won’t. The idea that this wealthy baseball player didn’t know what was causing him to grow arms like Popeye and a head as huge as a watermelon is ludicrous. It doesn’t even pass the laugh test.

    I am betting on the “buffoons” in this fight.

    • Craig Calcaterra - Feb 16, 2011 at 5:01 PM

      Do you even know what the issues are in this case? I’m asking you seriously. Because if you believe that the jury will be asked to decide whether they think Bonds took steroids or not, you’re badly mistaken. Indeed, I would wager good money that Bonds’ own lawyer will say in his opening statement that Bonds did, in fact, take performance enhancing drugs. If he doesn’t, he’s making a mistake.

      The jury is being asked to decide if Bonds lied about his state of knowledge of the subject in 2003. While I believe that Bonds likely knew what he was taking, that belief is premised on the fact that I have read exhaustively about Bonds, steroids in general and the BALCO case in particular. Jurors who claim even a passing knowledge of any of those things will be dismissed from the jury during voir dire. And there will be many who don’t know about them, because there are many people don’t follow a thing about baseball.

      What that leaves is a jury who will be faced with no smoking gun evidence against Bonds, just circumstantial evidence, which while fine as far as it goes, is not ideal. They will also be told of a fantastical, high tech drug lab that made supersonic-level steroids that no one could detect. They will also be told of a trainer who bragged to people about how awesome he was in giving out drugs that no one could ever detect. They’ll also be presented with an athlete whose job it was to mash homers and not think about it. Now, we may know better than that — I think Bonds is one of the smarter ballplayers around and that’s what got him in trouble — but the jury won’t know that as well.

      Bonds could be convicted. Bonds could walk. It’s a tough call. But one thing I can say with all certainty is that if the prosecution presents a case that is solely based on Bonds having arms as big as popeye, the’ll lose, because that doesn’t address the charges against Bonds.

      • chrisny3 - Feb 16, 2011 at 5:59 PM

        Even though you misread my post and are replying to something I didn’t write, I want to address these points of yours:

        “What that leaves is a jury who will be faced with no smoking gun evidence against Bonds, just circumstantial evidence.”

        Bell telling the jury that Bonds told her he was doing steroids is not circumstantial evidence. I believe there is also a former friend or business associate of Bonds who is on the witness list and will testify to the same thing.

        “And there will be many who don’t know about them, because there are many people don’t follow a thing about baseball.”

        It’s up to the government to do a good job explaining the science behind their case. It’s not rocket science, and as long as you get 1 or 2 knowledgeable smart jurors, they can explain to the other jurors, if necessary, the science or technical aspects in the case.

        Also, I disagree that simply having a “passing” knowledge of BALCO or steroids alone will get a juror dismissed from the case.

    • chrisny3 - Feb 16, 2011 at 5:14 PM

      Craig, do you have dyslexia? I’m serious. That would explain some of your recent mistakes or misrepresentation of articles. Because you clearly are not reading things accurately.

      What part of: “The idea that this wealthy baseball player didn’t know what was causing him to grow arms like Popeye and a head as huge as a watermelon is ludicrous.” don’t you understand? Tell me. Maybe I think I’m clear but I’m not. But I thought that was clear as day and accurately portrays the issue here — Bonds claiming he didn’t know what he was taking (or put another way, as I did, that he didn’t know the cause for his obvious bulk up).

      I’m incredulous that you replied to my post this way.

      • Craig Calcaterra - Feb 16, 2011 at 5:51 PM

        And if you read Bonds’ testimony — and knew anything about him — you know that he was on an intensive workout schedule and was working with nutritionists and everything else. That’s his story — as incomplete as we know it is — not the story of a guy who woke up one day huge and didn’t have a second thought about it. Just read the Roger Bernadina post from earlier today for a guy whose arms grew as big as popeye’s and doesn’t think much about it.

        The point — which I reiterate — is that one cannot simply rely on the “Bonds got huge” he should have known!” argument and expect to get anywhere.

        Ans while we’re being incredulous, I am incredulous why you are so insistent on the most rock solid evidence imaginable before you’re willing to concede that maybe — just maybe — the bankruptcy trustee has a chance to bury the Wilpons, but you think it’s entirely reasonable that a jury will be able to rely on supposition and assumption about Bonds and get a conviction of him.

      • chrisny3 - Feb 16, 2011 at 6:09 PM

        Since when do heads grow and faces puff up on intensive physical workouts and nutrition alone?

        And the government is not relying on physical body changes alone. I think at least two people are prepared to tell the jury Bonds told them he did PEDs. There might be more, depending on what some of the baseball players who will testify are prepared to say under oath.

        I never said that Picard doesn’t have the chance to bury the Wilpons. I’m just predicting he will lose on the biggest part of his suit — the “should have known” part. And how is direct testimony from two witnesses who will say Bonds told them he used PEDs “supposition” and “assumption?” Huih?

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