Word games in Bonds case

Was Barry Bonds tripped up by "fundamentally" ambiguous questions, or were the questions just ambiguous?

The answer to this word game may provide a preview of future courtroom battles if this highly anticipated perjury case ever does go to trial.

The case against Barry Bonds just got a little fuzzier: The prosecution virtually conceded in a Valentine's Day response to a defense motion to dismiss the indictment that it asked the slugger confusing and often ambiguous either/or questions in the grand jury.

Prosecutors also inadvertently touched off a minor media firestorm by botching the date of an alleged previously reported positive drug test for Bonds. In earlier filings – and even in part of this latest filing – the government referred to a November 2000 date.

Faulty typing inserted a bogus 2001 date that led ESPN and Reuters to jump on it as proof Bonds may have been on steroids during his 2001 single season home run record march.

But it was all just another prosecutor error.

It was the wrong day for the government to reveal its mistakes. Sloppy or tricky grand jury questions have forced it to argue that, "none of the questions asked Bonds was so fundamentally ambiguous that it cannot support a perjury prosecution."

The latest filing reveals "the fundamental reason why perjury cases are exceedingly rare," said Charles La Bella, a former U. S. Attorney and chief of the criminal division for the Southern District of California who now practices criminal defense in San Diego. "It's difficult for a jury hearing a transcript to say there's not more than one meaning to a question unless the question is crisp: was the light red?"

Fundamental ambiguity is a higher level of ambiguity that is required for the case to be thrown out and never go to trial.

But the filing revealed a central dispute. Did the government properly define – and Bonds fully understand – terms like testosterone, steroids and "anything like that." The filing offered no additional grand jury testimony to resolve the confusion.

The government also asserts confusing either/or questions or a series of questions may result in a perjury charge saying: "a question phrased in the disjunctive that contains an ambiguous phrase is not 'fundamentally ambiguous' as long as the remainder of the question is sufficiently precise."

This looks like the Gotcha Play. The government asserts it gets to choose what part of a muddled question Bonds answered yes or no.

Experts say that is a very tough kind of case to win.

"The technical way to look at it is, 'Was I answering the first part of the question when I said yes or no?' " La Bella said. "It comes down to: 'He knew I meant this?' Put yourself in the place of a juror. 'Do I send a guy to jail based on that?' "

The government argued that if questions were compound or ambiguous: "Bonds makes no effort to situate the questions the prosecutors asked," appearing to argue that Bonds should have helped the government ask more straightforward questions during his grilling.

La Bella flatly rejected that notion, adding that in the grand jury the witness has no burden to prove anything or to clarify. He also questioned whether the full transcript would ultimately demonstrate Bonds was regularly instructed to consult his attorney.

Craig Silverman, a former Denver prosecutor who practices criminal defense sees the case moving forward.

"The issue of ambiguous or compound questions will likely be something for the jury to sort out," Silverman said. "The government is basing its perjury prosecution on the totality of the circumstances. Prosecutors are telling the judge that this is a jury issue. At best, the defense may be able to get a count or two thrown out."

But the government may have highlighted a serious problem it may face at trial, when it wrote: "A court may find a question fundamentally ambiguous only when 'men of ordinary intelligence' cannot arrive at a mutual understanding of its meaning."

This is a case against a baseball player – not a doctor or a lab technician – and even the few terms mentioned in the filing are not clear to men of ordinary intelligence.

La Bella expressed surprise that perjury is the foundation of the charges against Bonds.

"Very few perjury cases are brought standing alone," La Bella said. "Put yourself in the place of a juror. Questions are open to interpretation. Are you going to send this guy to jail based on whether you believe the prosecution when it says, 'He knew I meant this.' "

The defense is expected to file its closing memo in the next week in advance of the oral argument before Judge Ilston on Feb. 29.

USA vs. Barry Lamar Bonds isn't getting any simpler.