Barry Bonds’ terminally looming jury trial has been postponed, perhaps until the fall. At some point, though, he’ll probably be dragged in front of his peers on four counts of perjury and one count of obstruction of justice. All of it, of course, traces back to the many-tentacled BALCO scandal, which has been too much with us for the better part of a decade. But it’s going to end soon, and this will almost certainly be the closing scene: Bonds’ walking out of the federal courthouse in San Francisco a free man.
Here’s why he’s going to do just that …
Greg Anderson still refuses to testify.
For Bonds to be convicted on any of the five counts on which he’s indicted, the government must prove that he knowingly lied about using illegal performance-enhancing drugs. Without the testimony of Bonds’ former trainer, Greg Anderson, this will be exceedingly difficult to prove. Anderson is still under subpoena, and Judge Susan Illston has threatened to jail him for the duration of the trial should he continue to refuse to testify. However, Anderson has already served 15 months in prison for civil contempt. Since Bonds’ perjury trial is expected to last just three weeks, Anderson is unlikely to be cowed by the prospect of 20 more days behind bars. And that would happen only if Judge Illston rules that further incarceration would not be punitive in nature.
Prosecutors know this, and they know Anderson’s testimony is essential. That’s why, in recent months, they’ve gone to such lengths as dispatching 20 IRS agents to raid the home of Anderson’s mother-in-law and threatening Anderson’s wife with conspiracy charges—it’s all to coerce Anderson before time runs out. Anderson’s history suggests their efforts will come to grief.
Much of the prosecution’s evidence has been ruled inadmissible.
Counts three and four of the Bonds indictment depend heavily upon the “doping calendars” and “doping ledgers” seized during the investigation. However, Judge Illston, because Anderson won’t testify, has called those items “classic hearsay” and ruled they could not be presented to a jury, absent Anderson’s testimony.
Then there are Bonds’ (alleged) failed drug tests. Prosecutors had hoped to present the jury with multiple failed steroid tests dated between November of 2000 and February of 2001. Also, a urine test Bonds passed when administered by MLB in 2003 turned up positive for THG when retested by the government in 2004. Of those tests, only the 2004 results have been ruled admissible by Judge Illston. That’s bad news for the prosecution, since a failed test on a 2003 sample squares with Bonds’ original testimony and thus doesn’t prove perjury. As well, the substance that showed up on the 2003 sample—the “clear”—wasn’t even illegal at the time.
Judge Illston has also ruled against admitting into evidence parts of a recorded conversation between Bonds’ former business manager Steve Hoskins–more on him and his credibility issues in a moment–and, according to the prosecution, Greg Anderson. (Anderson’s attorney, Mark Geragos, doesn’t believe it’s his client’s voice on the tape and says the recording sounds “cut-and-pasted in there.” Geragos continues: “I don’t think that’s Greg’s voice on the tape. I had an audio expert ready to listen to it but they steadfastly refused to turn it over to me. I don’t think it’s legit.”)
Supposedly, on the tape Anderson talks about injecting Bonds in different locations so as to avoid infection. In his grand-jury testimony, Bonds claimed Anderson had never given him an injection:
Prosecutor: So no one else other than perhaps the team doctor and your personal physician has ever injected anything in to you or taken anything out?
Bonds: 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.
Bonds: So, sorry.
Prosecutor: –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?
Bonds: No, no.
That exchange, according to the feds, constitutes perjury. But do the portions of the tape that Judge Illston admitted include Anderson’s injection comments? And will the jury believe the tape without any corroborating testimony from Anderson? And does Anderson ever refer unambiguously to Bonds (the defense maintains he does not)? And, as Geragos doubts, is it even Anderson’s voice on the tape?
The government has appealed Judge Illston’s pretrial rulings, which is why the trial has been pushed back from its original date of March 2. However, the feds’ appeal will likely fail. “That’s a stupid move that they’re appealing,” Peter Keane, a professor at Golden Gate law school and close observer of the Bonds trial, told ESPN.com. “There is absolutely no chance that an appellate court prior to trial is going to overrule a trial court’s evidentiary rulings …”
The prosecution has four witnesses who will profess knowledge of Bonds’ use of PEDs. However, those witnesses are all compromised to varying degrees.
First, the aforementioned Steve Hoskins. Hoskins’ relationship with Bonds ended when Bonds accused Hoskins of forging his signature for profit. Bonds’ attorneys claim Hoskins was investigated by the FBI and subsequently turned informant against their client. “I hope the government took the time to explain to the grand jurors that they were putting a man up there who Barry had reported for criminal conduct and a man who had threatened to get even with Barry by accusing him of steroid use,” says Michael Rains, one of Bonds’ lawyers. Hoskins’ attorneys, meanwhile, deny the charges, and the feds aren’t talking.
Kathy Hoskins, sister of Steve Hoskins and Bonds’ former personal shopper, is also expected to testify that she saw Bonds being injected by Anderson, which would speak to Count Two of the indictment. Obviously, though, given her brother’s current straits she has incentive to lie.
Then there’s Kimberly Bell. Bell is Bonds’ former girlfriend and the source for much of what was reported in the bestselling Game of Shadows. Doubtless, Bell will have much to say on the stand, but her testimony is assailable. She is, after all, easily painted as the scorned mistress out for revenge. Finally, we have Bonds’ former teammate in San Francisco, Bobby Estalella. Estalella will reportedly testify that he knows firsthand of Bonds’ use of steroids. However, that would be squarely at odds with the testimony he gave before the BALCO grand jury in 2003:
Grand juror: “In the clubhouse environment and you’re all teammates and you’re working out and you’re training, would you share information about the clear and the cream with your colleagues?”
Grand Juror: “Or would you keep that private?”
Estalella: “…Unless there was somebody else specifically doing that with you, you never mentioned it. It was never brought up. I mean I never went around talking about things. And it was never brought to my attention by anybody else. And as far as I know I think everybody’s pretty much hush-hush about things in the personal lives just because our lives are so open for everybody as it is. So a lot of people try to keep things to themselves, you know. Even in that tight atmosphere you’d be surprised.”
Grand juror: “So you wouldn’t compare notes about the effect? If you knew that one of your teammates was also working with Greg Anderson, would you maybe say, well, how is that working for you or this is what I’m experiencing?”
Estalella: “No. No. Actually I didn’t – you got to understand too one thing. He’s a personal trainer…. And if you know Barry, you’re not going to bother Barry…. But whenever he was around or anybody else, it was like we never spoke, you know…. So if he (Bonds) wasn’t around, sure, I would say hello to the guy and talk to him. But other than that, no, I never came around.”
Obviously, Estalella’s original testimony creates problems for the government’s case, in that it will be easy for the defense to attack Estalella’s credibility as a witness should his version of events change to such an extent.
Lead investigator Jeff Novitzky is easily attacked on grounds of motive and procedure.
Novitzky, the IRS agent who helmed the investigations into BALCO and Bonds, is another vital witness whose credibility can be attacked. Consider what’s to be found in Novitzky’s dossier:
- Following Novitzky’s raid of Comprehensive Drug Testing (in which more than 4,000 private medical records were confiscated despite his having a warrant for nothing more than 10 drug tests), one federal judge who reviewed the raid asked whether the fourth amendment had been repealed. Another–Judge Illston–criticized Novitzky for his “callous disregard” for constitutional rights. Novitzky, even though he was ordered to return the files, kept them, vetted them for information he could use, and was then authorized by an appeals court to go after 103 major-league ballplayers who had positive steroids tests in their files.
- Following a Novitzky-led raid on Greg Anderson’s home, some cash seized as evidence later turned up missing. Novitzky had no explanation. As Jonathan Littman has reported, a probe of the matter led Assistant U.S. Attorney Jeff Nedrow, the lead prosecutor in almost every BALCO-related case to date, to say that “the impact of the missing money was not known, but that the agents’ credibility would be at issue if they were called as witnesses at any future trial.”
- The Treasury Inspector General for Tax Administration, the same apparatus that probed Novitzky’s handling of the Anderson evidence, also probed him for leaking confidential investigative information to the press.
- According to Novitzky’s co-investigators, Novitzky targeted Bonds specifically and even talked about one day snaring a book deal.
- BALCO founder Victor Conte alleges that Novitzky falsified a confession and lied in court documents.
The cases of Tammy Thomas and Trevor Graham are not instructive.
Much has been made of the fact that both BALCO defendants who chose not to plea out before trial have been found guilty–cyclist Tammy Thomas of perjury and obstruction and track coach Trevor Graham of lying to federal investigators. In both cases, however, the dealers in question testified that they supplied Thomas and Graham with drugs–something both defendants had previously denied. In Thomas’ case, it was chemist Patrick Arnold, and in Graham’s case it was Angel Heredia, a steroids dealer from Texas.
Again, it comes back to Greg Anderson. Since Anderson, Bonds’ alleged supplier, clearly won’t be testifying at Bonds’ perjury trial, the comparisons to Thomas and Arnold are flawed. In Bonds’ case–uniquely–there will be no dealer leveling a finger at him from the stand.
In the end, the only sensible expectation is that Bonds will be exonerated. Considering the wasted resources and zealous overreach on the part of the feds, it’s fitting that they, and not the target of their obsessions, will be the ones chastened by the verdict.
UPDATE: Reader Eddie corrects me: Kathy Hoskins is Steve Hoskins’ sister and not his wife, as I originally wrote.