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Judge in Bonds case excludes newly discovered tape recording, prosecution rests

Apr 5, 2011, 2:46 PM EDT

Barry Bonds Perjury Trial Begins in San Francisco Getty Images

When she first considered the matter yesterday, Judge Susan Ilston strongly suggested that the newly-discovered tape recording of Dr. Arthur Ting and Steven Hoskins, allegedly discussing Barry Bonds’ steroids use, would not be admitted. Indeed, she characterized the tape as ”almost entirely inadmissible or irrelevant.”

It should come as no surprise, then, that Judge Ilston has excluded the tape from evidence.

Where this leaves us: the jury heard (a) the prosecution’s star witness say that he and Dr. Ting discussed Bonds’ steroids use “more than 50 times”; and (b) Dr. Ting — also a prosecution witness — testify that, no, they never discussed it at all.  Without anything (such as the tape) undercutting Ting, the prosecution’s star witnesses’ credibility is pretty severely damaged, it seems to me.  After all, the defense’s take on Hoskins is that he was scorned by Bonds and is out to get him. Now it looks like his side of the story — that he was truly concerned for Bonds’ health — was a lie.  Not good for Hoskins.

As things stand now, Bonds still seems to be on the hook for the charge related to lying about whether or not he had ever been injected with anything by Greg Anderson, but the charges relating to him lying about knowingly taking steroids have taken a mighty blow, it seems.

The prosecution seemed to appreciate that and stopped digging the hole it had made for itself. Following the judge’s ruling and the reading of Bonds’ grand jury testimony, the prosecution rested.

  1. ThatGuy - Apr 5, 2011 at 2:53 PM

    I wonder if Hoskins(Male type) losing credibility hurts his sisters as well in the eyes of the jury? Any law insight on if that potentially has any effect with juries traditionally Craig?

    • Craig Calcaterra - Apr 5, 2011 at 2:56 PM

      Each witness is different. Accounts from the sister’s testimony is that she was very credible, did not seem to be a free-rider on Bonds like her brother was. Seemed genuinely reluctant to be there. People in court liked her and found her rather compelling.

      The bigger question is whether the jury gets so pissed at the prosecution for having wasted their time with the steroids charges that they pull some minor nullification on the syringe charge too. I’ve seen that happen before with a minor charge that was appended to a larger case that crumbles.

      • clydeserra - Apr 5, 2011 at 3:28 PM

        I think with a lower profile case, you may get a hang on the “brother taint.” Its gonna be tough on this case though. I am sure the argument will be, brother influenced her memory. She did say she talked with her brother about bonds.

  2. jkcalhoun - Apr 5, 2011 at 3:00 PM

    In lay terms, what does the prosecution have to do in order to demonstrate that the lie about syringes and injections was material to the BALCO case? Is evidence required that the injection Kathy Hoskins witnessed contained PEDs? Does the jury decide on materiality, or is this to be determined at the discretion of Judge Ilston, who might instruct the jury one way or the other?

    • Kevin S. - Apr 5, 2011 at 3:21 PM

      If the injection was immaterial, wouldn’t Ilston have already thrown out that charge? Keeping in mind that my legal expertise comes entirely from Law & Order re-runs, I’d guess that Craig’s right, and the only way Bonds skates on that charge is if the jury just gets fed up with the prosecution.

    • clydeserra - Apr 5, 2011 at 3:30 PM

      the charge is, he said on the stand no one but doctors injected him. The personal shopper said she saw anderson inject him.

      I don’t see why Bonds never had a chance to clear that up with a, oh, I must have forgotten about that.”

      He can’t take the stand to say just that, that would be a disaster.

      • jkcalhoun - Apr 5, 2011 at 3:40 PM

        The charge is that he made “false material declarations”. To uphold this charge, I believe it’s the prosecution’s burden to prove that the declarations were 1) false and 2) material.

        Now, that may be easy for them to do in this case; I have no idea. I just want to know what’s sufficient.

      • ThatGuy - Apr 5, 2011 at 3:48 PM

        My memory is faulty, did she ever testified where the injection was? I mean if it was in the knee or leg how easy is it to say, I was 38+ years old and needed a cortisone shot to loosen things up. I must have forgot about it.

      • Craig Calcaterra - Apr 5, 2011 at 3:49 PM

        She said the stomach, I believe. But it doesn’t matter: his testimony on this was over seven years ago. He didn’t know what she was going to say. He just said a flat “nope.” Which seems silly to me, but whatever.

      • jkcalhoun - Apr 5, 2011 at 3:50 PM

        Navel.

      • clydeserra - Apr 5, 2011 at 3:54 PM

        I believe it is material because the grand jury was investigating whether BALCO was illegally distributing drugs. A BALCO employee/associate injecting someone would be good evidence that they were doing something wrong. So it is material to the Gov’t investigation.

      • Kevin S. - Apr 5, 2011 at 4:22 PM

        Without knowing the contents of the injection, I can’t see how the fact that Bonds was injected is evidence of wrongdoing. There are plenty of legitimate supplements for a trainer to inject a player with. Like I said earlier, I doubt this charge would be on the table if that bit of testimony wasn’t material, but I doubt it’s as simple as “injection = evidence of wrongdoing.”

      • cur68 - Apr 5, 2011 at 4:36 PM

        I believe the only things in the regime he was supposed to be on that could be injected in the subcutaneous fat of the stomach are insulin & HGH (I think you also get rabies shots in the stomach; did Miss Hoskins see a mad dog or bat?). Is insulin illegal for ball payers? Anyways I just looked over the drug policy for MLB (found here; http://www.buzzstoc.com/2009/05/07/mlb-drug-policy-list-of-banned-substances/) and insulin’s not on it. Could his counsel claim its that and, with an “oops, he forgot about that one”, would he then be out of trouble WRT Miss Hoskin’s testimony?

  3. The Dangerous Mabry - Apr 5, 2011 at 4:14 PM

    ESPN’s “Legal Analyst” Lester Munson seems to be of the opinion that the judge not allowing this tape was suspect, and that the reason she didn’t want to do it was because she was lazy. I believe the quote was something like “She for some reason did not like this tape. She did not like that it would take up a lot of her time.” He also said there was “no doubt” that it contradicted Dr Ting. Does he have some kind of an ax to grind here, or is his analysis of the situation on the money?

    http://espn.go.com/video/clip?id=6296788&categoryid=2521705

    • Craig Calcaterra - Apr 5, 2011 at 4:16 PM

      I have not read this yet, but it’s worth noting that since I’ve been following the baseball/steroids/legal beat in 2007 or so, Munson has been consistently wrong on just about anything as it relates to litigation. Just blindingly wrong in ways that make you wonder how someone could be as wrong as he is.

    • clydeserra - Apr 5, 2011 at 4:21 PM

      that was some pretty bad analysis. Just as I would expect from ESPN.

      Not having heard the tape or seen the transcript, I would guess a judge would have to see and actual bombshell to admit it. The California rules of evidence can exclude things where the probative value (how much it will help/hurt the case is out weighed by the time it would take to litigate it, trying to avoid a mini trial about a bit piece of evidence. I imagine the Federal rule is the same.

      Sounds like there was not much there but it would add a week to the trial for not much of impeachment on Dr. Ting. That coupled with the unsavory way this tape surfaced makes it a pretty reasonable decision.

      • The Dangerous Mabry - Apr 5, 2011 at 4:25 PM

        It’s good to know that in addition to sounding like kind of an opinionated ass, Munson is also likely to be wrong, and has a bad track record. It just makes me feel better about the whole thing.

    • mogogo1 - Apr 5, 2011 at 4:46 PM

      Getting a garbled tape like that admitted as evidence at the 11th hour after having years to prepare their case was a serious longshot by the prosecution. At best it likely struck the judge as an act of desperation and at worst she may have viewed it as an outright attempt to manipulate her and the court. In general judges aren’t fond of last-minute discoveries by the prosecution. The system is designed so the defense has a chance to prepare for what the prosecution is going to present; last-minute discoveries like this throw a wrench into that process.

  4. hawkinsob - Apr 5, 2011 at 5:32 PM

    Wow, a tape rebutting the testimony of a witness and demonstrating that the witness lied is “irrelevant”. Sounds like we’ve got a Bonds fan for a jurist. What a joke.

    • clydeserra - Apr 5, 2011 at 5:39 PM

      where do you get the information that the tape rebuts testimony?

    • Craig Calcaterra - Apr 5, 2011 at 5:41 PM

      How was it “demonstrated?” The judge ruled that the tape was intelligible and irrelevant. Even the NY Daily News — which is pretty pro prosecution — reported today that the transcript of the case was riddled with blanks due to the voices being inaudible.

      Just because the prosecution says the tape was important and useful doesn’t mean it was. They actually have a dog in the fight, you know.

    • mogogo1 - Apr 5, 2011 at 6:39 PM

      If you’re prosecuting a case and forced to try and show one of your own witnesses is a liar you’ve got some serious problems. Expecting the judge to bend over backwards to help you out is asking an awful lot.

      It’s fair to note that nobody held a gun to the government’s head forcing them to call Ting to the stand. Rough break they were so unprepared they weren’t aware he’d torpedo their case for them; maybe next time they can spend a few more years and a few more million bucks and actually do a competent job. Then they wouldn’t need the judge to bail them out.

  5. mplsjoe - Apr 5, 2011 at 6:35 PM

    Given the precedent, the govt should indict Ting or Hoskins for perjury. Or both.

    • mogogo1 - Apr 5, 2011 at 6:48 PM

      First off, the govt has no interest in proving Hoskins is a liar; quite the opposite. And if they could easily prove Ting was lying they wouldn’t have been begging the judge to get some garbled tape into evidence. Clearly one of them is a liar but shame on the prosecutors for allowing it to blow up in their face. They did the defense’s job for them. Maybe Barry will autograph some stuff for them when it’s all over.

  6. muzickid - Apr 5, 2011 at 8:42 PM

    What a MONSTROUSLY absurd waste of taxpayer money and the court’s and jury’s time. This is a stupid case that should never have been brought by the prosecution. There are so many more important issues – the Justice Department has a large backload of fraud and identity theft cases – with real victims- that it doesn’t have the resources to pursue, but it can worry about Bonds and steroids? If I were on the jury I would vote to acquit to send a larger message: focus prosecutorial resources on serious crimes with real victims. Save cases like this for another time when there are ample resources.

  7. stevem7 - Apr 5, 2011 at 10:41 PM

    What a total joke. Another Federal Judge who should be de-robed and forever barred from practicing law in this country. To exclude the very rebuttal evidence that shows the Doctor lied and not the Prosecution witness is a glaring example of what is wrong with the justice system in this country. In point of fact, THERE IS NO JUSTICE IN THIS COUNTRY. Judges do what they damn well please and pay no attention to the law. So another criminal will walk free because some good for nothing, never should have been nominated judge is being paid by the taxpayers for NOT doing her job.

    • mogogo1 - Apr 6, 2011 at 12:13 AM

      Let’s throw the big jerk Barry Bonds out of the picture and imagine this is you on trial for something. The govt has had years to prepare its case and you’ve spent tons of money so your lawyers could be prepared to defend you against the charges. Then, in an awesome turn of events for you, the government’s case blows up in their face because their own experts call each other liars. You can breathe a sigh of relief, right? Except the very next day, the govt is back in court with some new evidence they just “found” after all these years. You and your lawyers don’t know jack about it, haven’t had any time to prepare for it, yet the govt. wants it entered into evidence against you right this moment, halfway through your trial. You’d STILL be down with the judge giving them the okay if it were your hide on the line? Nope, didn’t think so.

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