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Bonds Trial Update: A charge is dismissed and the defense rests without calling a single witness

Apr 6, 2011, 12:31 PM EDT

Barry Bonds

The evidence portion of the Bonds trial is over.

The prosecution rested yesterday, and this morning prosecutors dropped one of the charges: the one about whether Greg Anderson induced him “to take anything before the 2003 season.”  Prosecutors had been of the view that the charge could mean that Bonds took any kind of steroid before 2003. The Judge made it clear, however, that the charge properly referred to whether Bonds used the cream and the clear prior to 2003, and there was no evidence in the record about that at all.  The judge would have dismissed the count on the defense’s motion, but the prosecutors preempted that.

With that it was the defense’s turn. And they called … no one. Which is actually pretty common in criminal trials, and not terribly surprising here. The prosecution did a good job of rebutting large portions of their own case. The one big problem for Bonds — Kathy Hoskins’ testimony that she saw Anderson inject Bonds with something — is pretty much unrebuttable. At least unless Bonds wanted to take the stand himself and say that she didn’t see what she thought she saw.  Which would constitute the biggest bit of malpractice in living memory.

The defense has rested. The jury has been sent home for the day. Closing arguments will begin tomorrow.  As it stands, my best guess is that Bonds is convicted on the “did Anderson ever inject you with anything” charge and acquitted on the “did you knowingly take steroids” questions and everything else.  If the jury was sufficiently angered or confused by the prosecution’s disorganization, they could just acquit him on everything — I’ve seen it happen — but that would seem to be contrary to the evidence on the injection charge.

But hey, therein lies the beauty and terror of the jury system: you never know what they’re thinking until after they’re done doing that voodoo they do.

  1. sabathiawouldbegoodattheeighthtoo - Apr 6, 2011 at 12:48 PM

    …and San Francisco schoolkids will use books that are another year older, since the City decided to pursue this case with its finite available funds.

    • sdelmonte - Apr 6, 2011 at 12:55 PM

      Don’t blame the city. Blame the Dept of Justice.

    • paperlions - Apr 6, 2011 at 3:43 PM

      Yeah, because that is what politicians do….use every available dollar to fund education and other worthwhile endeavors

    • chrisny3 - Apr 6, 2011 at 3:52 PM

      This was a federal prosecution. No local funds were used.

  2. heynerdlinger - Apr 6, 2011 at 1:30 PM

    I haven’t read the grand jury testimony, but is it possible that that injection question was vague enough that Bonds took “anything” to mean “any steroids”? In which case, that’s not exactly perjury to say no.

    • jkcalhoun - Apr 6, 2011 at 1:40 PM

      No, that was a direct set of questions:

      Q: Did Greg ever give you anything that required a syringe to inject yourself with?

      A: I’ve only had one doctor touch me. And that’s my only personal doctor. [Response continues with oblique references to friendship and not talking baseball..]

      Q: So no one else other than perhaps the team doctor and your personal physician has ever injected anything in you or taken anything out?

      A: Well, there’s other doctors from surgeries. I can answer that question, if you’re getting technical like that. Sure, there are other people that have stuck needles in me and have drawn out — I’ve had a bunch of surgeries, yes.

      Q: So —

      A: So sorry.

      Q: — the team physician, when you’ve had surgery, and your own personal physician. But no other individuals like Mr. Anderson or any associates of his?

      A: No, no.

      The government has helpfully underlined “No, no” in the indictment to indicate the alleged false testimony.

      So, I guess this case has now boils down to one word in his testimony, repeated once.

      Makes for a nice headline or perhaps a line in a song: “No, no,” he said feloniously.

    • jkcalhoun - Apr 6, 2011 at 2:00 PM

      It’s true that in the exchange immediately preceding this one, Bonds was asked specifically about norbolothone, human growth hormone, and/or “the G”, all of which Bonds basically says he doesn’t know about.

      But because Bonds himself volunteers that “other people have stuck needles in me and drawn out” (presumably blood) in connection with his surgeries, he’s clearly aware that the line of question is about the general use of syringes.

      So I think it’s hard to avoid the government’s needle here.

      I still have the same question I had yesterday, however, about the government’s burden to prove the materiality of this testimony to the BALCO case. Some very good conjectures were offered yesterday about why it should be viewed as material, and they all make sense, but my question was more about the logistics of a trial like this and how materiality is established. Do the investigators of the case in which the perjury was allegedly committed have to testify about what they would have done with accurate testimony if they had obtained it? Did Novitsky cover anything like that in his testimony here?

      • spudchukar - Apr 6, 2011 at 5:22 PM

        If the prosecution follows their previous line of reasoning, look for an amended motion and second charge of perjury for the second “no.”

  3. Professor Longnose - Apr 6, 2011 at 2:06 PM

    Hey, Craig, this is outside of the scope of this blog, but, as a recovering lawyer, are you a fan of the adversary system? In a baseball game, who wins is and should be more important than who should win, but it seems like a difficult way to conduct a legal system.

    • Craig Calcaterra - Apr 6, 2011 at 2:15 PM

      My stock answer is usually “It ain’t a perfect system, but do you got a better one?”

      No one has yet proposed to me a system that is as good at motivating people to dig down into the details and the evidence as our adversary system does. And any lawyer who has had a judge simply not understand or willfully ignore relevant evidence because they’re too busy or can’t be bothered can attest to how frustrating it is and how scary a judge-driven system would be.

      There are clearly problems with the legal system. Unequal access based on means being chief among them. But I don’t see how they outweigh the problems of moving from the current system to something else.

  4. chrisny3 - Apr 6, 2011 at 3:14 PM

    Bonds will be convicted on more than one count. That’s my guess. The jury, having clearly seen in the testimony how Bonds lied about the injection will thus come to doubt all of Bond’s statements to the GJ. They will note how Anderson’s practice with all his clients was to be open about what they were buying and getting, and they will also use their own common sense to mock the notion that an elite millionaire athlete would allow someone to inject him with substances about which he had no idea about. They will also laugh at the idea that Bonds was paying Anderson thousands of dollars for flaxseed oil.

    As juries are fickle, they could of course come to any number of other conclusions. But even if they only convict on the injection count, it would still be a victory for the prosecution. The Bonds apologists are of course going to continue to decry the amount of money and time spent. But it will have been worth it to send a message about the need for integrity in the grand jury process – even in the unlikely event Bonds gets off on all charges. And I’m sure some of the Bonds apologists may even try to paint conviction on a single count as a victory for Bonds, but I don’t see how any federal criminal conviction can be a victory. Especially as some of those apologists were saying before the trial even started that it would be a slam dunk acquittal for Bonds.

    • heynerdlinger - Apr 6, 2011 at 3:30 PM

      And yet, the Wilpons are innocent.

      • chrisny3 - Apr 6, 2011 at 3:42 PM

        Innocent of “known or should have known?” Absolutely.

        You shouldn’t remain confused about the differences between a criminal indictment brought about by a grand jury and a civil lawsuit whose most serious part was concocted according to the reckless whims of an unethical bankruptcy trustee. Huge difference there.

      • chrisny3 - Apr 6, 2011 at 3:47 PM

        Are you also confused in thinking there has already been a judgment in the Picard lawsuit against the Wilpons? (Otherwise, your comment doesn’t seem to make sense.) I wouldn’t be surprised, seeing how many in the media went overboard to already “convict” the Wilpons based on the one sided fictional narrative in the lawsuit.

      • heynerdlinger - Apr 6, 2011 at 5:08 PM

        No, I’m not jumping to conclusions about the Wilpon case, but trotting out the “he should have known” argument about what Anderson did or didn’t inject because Barry Bonds is “an elite millionaire athlete” strikes me as a double-standard considering your previous support of the Wilpons.

        And I’m not confused about the judgment (or lack thereof) in either case, since as of this posting, there isn’t one.

      • spudchukar - Apr 6, 2011 at 5:31 PM

        The primary difference between the Civil law suit against the Wilpons and the Federal Criminal indictment against Bonds is that in the Civil suit the jury only needs to come to a proponderance of guilt in order to rule for the Plaintiff, where in the Bonds trial they must cross a higher threshold and find him guilty with no reasonable doubt.

        Plus if the Judge does his job properly he will instruct the jury to disregard any personal beliefs they may have as to Bonds’ guilt, and concentrate on the evidence presented. In other words, the jury should be instructed that they are not deciding if they believe Bonds is guilty or not, but whether the evidence the prosecution has presented convinces you that the Defendant is guilty and to disregard any prior opinions you may have brought to the trial.

      • spudchukar - Apr 6, 2011 at 5:32 PM

        Ooops, should read preponderance.

      • chrisny3 - Apr 6, 2011 at 5:50 PM

        “No, I’m not jumping to conclusions about the Wilpon case, but trotting out the “he should have known” argument about what Anderson did or didn’t inject because Barry Bonds is “an elite millionaire athlete” strikes me as a double-standard considering your previous support of the Wilpons.”

        Here’s the difference. I don’t think you can find a single instance where a rich elite athlete took injections from a trainer without knowing what the substance was … or paid thousands of dollars for flaxseed oil. It doesn’t even pass the laugh test.

        Whereas in regard to Madoff, no one knew. Not the SEC. Not any of his other clients who included much more sophisticated investors than Wilpon/Katz. So there is tons of other instances of similar behavior to that of Wilpon/Katz, making their story highly believable.

      • chrisny3 - Apr 6, 2011 at 6:05 PM

        spuds, you completely missed the point about the difference between the criminal indictment in the Bonds case vs. the civil lawsuit against the Wilpons. In the criminal case, the indictment was brought by a grand jury — a group of average citizens. There would presumably have to be some substance to the charges. OTOH, the civil lawsuit was the creation of a single person — in this case an unethical trustee who has already come under criticism from other Madoff victims, congressmen, and the SEC itself for his billing practices. In addition, that trustee can’t be sued for the fiction he put in the lawsuit, allowing him to defame the targets of the suit without any repercussions.

        While some criminal prosecutions may be totally unwarranted, I think the amount of garbage accusations accompanying civil lawsuits is immensely higher. By a mile.

      • spudchukar - Apr 6, 2011 at 6:49 PM

        Chrisny3, you are enraptured by your willful blindness that you cannot extricate yourself from the minutia and step back and view this from a societal big picture. We have a judicial system which needs to be used judiciously. What the Bond’s trial will most likely illustrate to society is that it is criminally wrong to lie. So great, at an astronomical cost we now get a criminal conviction for lying. What a worthy endeavor.

        Whereas in the Madoff/Wilpon case many individuals who were significantly harmed have an opportunity to see some semblance of justice for a pittance compared to the redemptive financial rewards they may recover.

      • heynerdlinger - Apr 6, 2011 at 7:52 PM

        So the elite millionaire athlete should have known what he was putting in his body. Thousands of dollars is too much to be paying for flaxseed oil. It doesn’t pass the “laugh test.” None of this is false, but it’s an awfully silly argument to also propose that the chairman and COO of an investment company are mere dupes who could never be expected to think twice about the crazy returns that Madoff was claiming.

        That the SEC didn’t uncover it is irrelevant. That’s akin to Bonds claiming that he’s innocent because the DEA didn’t uncover BALCO. And at least the DEA has subpoena power.

      • chrisny3 - Apr 6, 2011 at 9:48 PM

        spuds, to the contrary, it is you who can’t see the big picture, and willful blindness may be too kind a phrase to describe your condition as you appear to be just plain blind. The big picture here is justice, which is priceless and always a very worthy endeavor. And justice depends on the integrity of the GJ system, which is successful only to the extent that witnesses tell the truth. So you can’t put a price on perjury indictments which encourage the truth. Especially high profile indictments.

        So justice should be the goal of all legal efforts. Yet, as pertains to Wilpon/Katz, how can there be justice when an out-of-control trustee has to lie in his lawsuit and then tries to cover it up? How can there be justice when the victims themselves have tried to get the supposed champion of their cause fired from the case? Your notion of justice is turned upside down.

      • chrisny3 - Apr 6, 2011 at 9:52 PM

        heynerdlinger, Madoff’s returns weren’t so “crazy” in the case of Wilpon/Katz. You do know that the returns varied from client to client and weren’t all the same, don’t you? And, no, it isn’t silly at all to think that Wilpon and Katz were duped since Madoff duped everyone else, even clients much more financially sophisticated than Wilpon/Katz. And of course the failure of the SEC to detect any scam is relevant. They are the primary regulatory and compliance body in this country for securities and investment operations. Investors DEPEND on the SEC to root out and prevent fraud.

        As for your DEA analogy, it is false and immensely silly. Their responsibility is NOT to monitor what any individual puts into their body.

    • ThatGuy - Apr 6, 2011 at 4:22 PM

      I’m not sure how it has cleary been showed Bonds lied on the injection. Its essentially a he said, she said isn’t it? Bonds said in the Grand Jury he didn’t and Hoskins said she has seen it. If their were multiple people that testified to that effect it would be clearer, but with only one witness I don’t know how that is enough proof.

      • stevem7 - Apr 6, 2011 at 4:34 PM

        You need to rethink your comment. There is no he said, she said here. Hoskins testified that she saw Anderson inject Bonds. Anderson is not testifying to say he didn’t do it and Bonds isn’t testifying to say she didn’t see it. So its not a he said she said, rather it is unrebutted testimony of an eye witness.

      • chrisny3 - Apr 6, 2011 at 4:37 PM

        It’s not really he said/she said because no evidence was introduced to directly contradict Hoskin’s testimony that she saw Anderson inject Bonds in the belly button. And, AFAIK, no evidence was introduced to impeach any of her testimony and Bonds’ attorneys failed to do so on direct. In fact, didn’t she clearly say she was a reluctant witness? So, she had no motive to lie. If there is no reason to doubt her word, then the jury is likely to believe her. And since her testimony is consistent with her brother’s testimony, I have a feeling the jury will believe some of that too. Just because Ting contradicted some of the brother’s testimony doesn’t mean the jury will believe Ting or will throw out all of S. Hoskin’s testimony.

  5. Old Gator - Apr 6, 2011 at 3:44 PM

    With the possible exception of the mysterious shrinking testicles, this trial has been a real snoozer. I don’t think it’ll join the ranks of Inherit the Wind, Judgement at Nuremburg, Anatomy of a Murder or The Andersonville Trial on anyone’s list of top five courtroom dramas. The sooner it gets finished and Barry-Better-Living-Through-Chemistry Bonds is consumed by fickle sports history to become the Phillip Nolan (or Flying Dutchman, if mythology sans sports “journalism” is your preference) of the Hall of Fame, the better.

    Then we can lay in our big stashes of popcorn, Doritos and beer and get set for the Wilpon/Picard conflagration. Now that, statistics and details notwithstanding, will be a treat, betcha betcha.

    • cur68 - Apr 6, 2011 at 4:14 PM

      I said from the beginning; Kimberley Bell’s penthouse pics should have been part of the evidence allowed. It would livened things up a treat and would have been totally in keeping with the farcical nature of a cash strapped federal government chasing guy who was allowed to half answer some questions that the government mishandled.
      Maybe we can make a case to have Picard cite them as the reason the Wilpons were so blind about what was going on with the Metts finances? Madoff kept throwing Penthouse at them. Or something.

  6. stevem7 - Apr 6, 2011 at 4:31 PM

    The judge in this case is a total joke and she made decisions that are contrary to law, disallowing rebuttal testimony in the form of the tape. She knowingly is letting a jury think that the Doctor NEVER had a conversation about Bonds when in point of fact the Judge KNOWS that that is not the case. She should be terminated for cause before this trial even goes to a jury.

    • Craig Calcaterra - Apr 6, 2011 at 4:34 PM

      I’m going to go out on a limb here and guess that you’re not a lawyer. Just a hunch! Evidence has rules, but I won’t bore you with them.

      And you can’t terminate a federal judge “for cause.” The Constitution of the United States gives them tenure for life. The only way to get rid of them is to impeach them. And, contrary to your most optimistic hopes, ruling differently on an evidentiary matter than you think she should rule does not justify impeachment.

      • stevem7 - Apr 6, 2011 at 4:40 PM

        You are correct I am no lawyer. Don’t have to be one to see a system that is brutally flawed by judges like this. And you make the point so eloquently for me, Federal judges can’t be terminated ‘for cause’ and that is what is wrong with our system. I’ve watched judges knowingly put innocent people in jail, I’ve seen judges knowingly allow perjured testimony by police officers and find defendants guilty , and because of it I will take the step of saying that the Constitution needs to be changed as tenure for life is ridiculous at any level.

      • heynerdlinger - Apr 6, 2011 at 5:11 PM

        I’m going to go out on a limb here and guess that the judges you’ve seen behave this way were not part of the Federal court system.

      • tmohr - Apr 6, 2011 at 5:42 PM

        I suspect that most the the judges stevem7 has seen in action are on TV during the afternoon.

    • chrisny3 - Apr 6, 2011 at 4:44 PM

      Faced with a choice between listening to two witnesses and a 15-minute tape recording that would give jurors an accurate picture of the credibility of an important witness or maintaining her schedule, Judge Illston decided that she would maintain her schedule.

      At least one lawyer (Lester Munson) agrees with you, implying that Illston doesn’t want to risk extending the trial as it might interfere with a scheduled April 25 vacation. Unfortunately, her ruling to exclude the tape can’t be appealed. But I think there is enough evidence already to get a conviction.

      http://sports.espn.go.com/espn/otl/columns/story?id=6297827

      • stevem7 - Apr 6, 2011 at 4:50 PM

        I agree there is enough for a conviction but it sure is ugly to have to watch a judge run a trial like this. Knowing how high profile this case was, to me it’s just another example of why our justice system isn’t what the founding father’s imagined it to be. Of course that’s just one man’s opinion.

      • Craig Calcaterra - Apr 6, 2011 at 4:54 PM

        Anyone who read Munson’s analysis of the prosecutor’s appeal of the residual exception to the hearsay rule a couple of years ago know that he knows less than jack about evidence rules. Or he simply has a batsh** crazy way of analyzing them.

        In any event, probative value vs. the risk of confusion of delay is a judgment call. Judges make them in every case. I found it very strange how strident Munson was in saying that this was about Ilston being concerned about her schedule. The Daily News, in contrast — who have reporters in the courtroom — characterized the recording (or its transcript; I couldn’t tell) as confusing and riddled with inaudible sections (and in the case of the transcript the word “inaudible” in place of testimony).

        When there is a criminal defendant whose liberty is at stake, it is strongly urged in the law to give him the benefit of the doubt on evidentiary calls like this, especially when it is newly-discovered evidence that even Munson describes as an “ambush.” She made a call, and I was shocked to see an attorney attack it like that.

        I agree with Munson, however, that the prosecutors could have avoided all of this if they had simply treated Ting as a hostile witness the moment he went off the reservation. That they didn’t has me questioning their preparation and their competence.

      • jkcalhoun - Apr 6, 2011 at 4:55 PM

        When Lester Munson is in your corner, it’s time to get another opinion.

      • chrisny3 - Apr 6, 2011 at 5:34 PM

        Craig, I’m surprised you would use “New York’s Picture Newspaper” as a source!

        In their story, the i-Team didn’t give their own opinion as to the value of the recording. They merely mentioned that the transcript of the tape had many instances of “indiscernible” next to Ting’s name. Because some of Ting’s words could not be made out doesn’t mean a conversation didn’t occur between him and Hoskins regarding Bonds and steroids. At the very least, I would think the government could call Ting to the stand and play the tape for him and ask him if this was not a conversation between him and Hoskins. Let’s hear Ting’s explanation of the conversation in his own words. Hoskins could also have been called back to the stand to verify the conversation on the tape.

        Without seeing the full transcript, it’s hard to say for sure what the value of it is. But I tend to agree with Munson. Not that the reason for exclusion necessarily had to do with Illston’s upcoming vacation. But that the judge’s reasoning (and choice of words) for excluding the tape was questionable.

      • clydeserra - Apr 6, 2011 at 10:41 PM

        Craig I gotta disagree with the hostile witness thing. Just because the witness is giving you answers you don’t like doesn’t give the judge the ability to declare him/her hostile. Ting was answering questions asked, not being evasive.

        I don’t think the prosecution couldhave qualified him as hostile

    • spudchukar - Apr 6, 2011 at 5:50 PM

      Dude, it isn’t the Judge’s business to question the veracity of a Prosecution’s testimony, but the Defense’s attorney. You are surely correct when you state judges incarcerate innocent people, but this is more often due to shoddy Defense work, mostly by overworked Public Defenders who are there not so much there to represent their clients but to expedite the system. Channel your disenchantment with the system in a more productive direction and focus on Judicial System that allows a government to pay the Judge, Prosecuting Attorney and Public Defender with a paycheck signed by the same individual.

  7. BC - Apr 6, 2011 at 4:46 PM

    I don’t think he’s getting convicted on a single thing. Just my guess.

  8. Old Gator - Apr 6, 2011 at 4:57 PM

    The condom did not fit! You must acquit!

  9. macjacmccoy - Apr 6, 2011 at 11:55 PM

    acquit him. I find it ridicolous that they are spending millions of dollars to find out what Barry Bonds shot in ass and lied about when people are losing there homes. The state deserves to lose just for wasting our money.

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