Feb 16, 2011, 8:19 AM EST
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.
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 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.
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