Will Bonds draw a walk?
Craig Silverman is a Yahoo! Sports Legal Analyst and a veteran trial attorney who served for 16 years as a prosecutor in Denver. In the following Q & A, Silverman answers questions pertaining to Barry Bonds' perjury case, including the unsealed grand jury testimony and the judge's request that prosecutors rewrite the indictment.
Judge Susan Ilston on Friday unsealed for the first time the entire grand jury questioning of Barry Bonds in December 2003. The judge also asked the prosecution to redraft the indictment or begin again with entirely new charges. Is this an unusual request from a judge in a perjury case? Does it indicate the judge is skeptical of the charges?
Bonds was in a witness box, not a batter's box, but his testimony was a lot like an at-bat. He was trying to fight off pitch after pitch thrown by Assistant U.S. Attorneys Jeff Nedrow and Ross Nadel. In effect, Judge Ilston said she saw too much junk, and maybe even some illegal pitches from the prosecutors.
Even though the indictment was clearly flawed and was criticized by Ilston, going back to the drawing board could be a blessing in disguise for the government. Prosecutors routinely amend indictments until they get the charges just right in the eyes of the presiding judge. All of this pre-trial skirmishing is akin to arguing over the ground rules before a ballgame. Once the trial starts, it is time to play ball.
The defense claimed that the prosecutors asked ambiguous and redundant questions during Bonds' grand jury testimony. Why did the judge agree that this was a legitimate criticism?
Because it is true. The judge wanted the public to read the transcript and recognize that she was correct in her criticism. I would think Nedrow and Nadel are now reading their own questions and wondering why they did not throw harder, straighter pitches. They were armed with all sorts of information and evidence from federal investigators who had executed search warrants. They also knew what other witnesses and suspects had told them. Yet they botched much of the interview.
Many of their questions left room for multiple interpretations. For example, regarding Bonds being supplied with human growth hormone by his trainer and friend Greg Anderson, consider the confusing and unfocused nature of the following question:
Q: And, again, just to be clear and then I’ll leave it, but he (Anderson) never gave you anything that you understood to be human growth hormone? Did he ever give you anything like that?
A: No.
A little later, the following:
Q: In January of 2002, then, again, just to be clear, you weren’t getting any testosterone or growth hormone from Anderson during that period of time?
A: No.
Putting a negative like "never" or "weren’t" in the middle of a question can render any answer ambiguous and confusing. Saying no to a question with an internal negative can lead to a colorable argument that the witness is in fact admitting the proposition. For example, consider the question, "Are you not Barry Bonds?" He might most accurately respond “No” to deny the assertion that he is "not Barry Bonds."
These kinds of colloquialisms may be fine in everyday conversation, but precise questioning is a must in a grand jury setting where the only charge that might result is perjury against the witness. There are plenty of other examples of imprecise and inelegant questions in the transcript.
Is the entire case in jeopardy because of the poorly worded questions?
In fairness, not all the questions about steroids, HGH and syringes were vague and ambiguous. The government still has a decent case that likely will get to a jury on the charges of perjury and obstruction of justice.
It is rare that a federal judge will throw out an entire case. Judges generally should not second guess prosecutorial decisions. It is a separation of powers issue. The prosecution is the executive branch of government, and absent gross impropriety the judicial branch should not substitute its judgment. If Judge Ilston were to throw out the case, there would likely be an appeal to the Ninth Circuit and a possible reversal. A trial judge is generally supposed to serve as an umpire and not stop the game before it begins.
There is a real factual dispute here – even though the prosecutors could have presented their case better, Bonds seemed to be saying that he never knowingly took steroids or HGH. He also unequivocally asserted that only his doctors have ever stuck a syringe into him. The government apparently feels it can prove Bonds a liar.
How important to Bonds' defense was the loyalty of his trainer and longtime friend, Greg Anderson? Did it appear from Bonds' testimony that he was reasonably certain Anderson had not turned on him?
Bonds seemed to be gambling a great deal that Anderson will never turn on him. Anderson is not doing all that well financially (Bonds said his trainer/pal often sleeps in his car), and there may be a tacit understanding of payment down the road for services rendered. Anderson’s primary interest may be the welfare of his child, who attends a private Montessori school with Bonds' younger daughter. Bonds stated in his testimony that he has helped Anderson with tuition payments.
Bonds and Anderson grew up together and it may well be that Anderson is the kind of friend who can be relied on to always protect and defend Bonds. After all, Anderson already served about a year in jail for failing to testify before the grand jury. Of course, loyalty is a two-way street, and Bonds did not turn state's evidence against Anderson when given a silver-platter opportunity to do so.
Without Anderson's testimony for the prosecution, Bonds will argue that he was kept in the dark about what his trainer/friend was obtaining from BALCO and putting into Bonds' system. The prosecution cannot win its perjury case by simply showing that Bonds took steroids and/or HGH, they have to prove that he knew what he was ingesting.
If Bonds had immunity from everything except perjury, why would he lie during his testimony?
One possibility is that Bonds is innocent. It is unlikely, but not impossible that Anderson put things in Bonds' system unbeknownst to the slugger.
More likely, Bonds has built an image of himself and his "hard workout – no shortcuts" approach (see Roger Clemens) that will not allow him to acknowledge cheating even to his own lawyers, let alone prosecutors, grand jurors and the general public.
If it is all a bunch of lies, there are likely some interesting psychological dramas being played out in Bonds' head. If he laid on a couch and spoke honestly, we might learn a lot about the dynamics of the relationship he had with his late baseball star father Bobby Bonds.
People lie for lots of reasons. No one is supposed to perjure themselves under oath, but any lawyer will tell you it happens all the time – and generally without repercussion. It happens every day in divorce case depositions, car accident cases and in criminal trials. Go to traffic court any day of the week if you want to hear a steady stream of big whoppers. Most prosecutors just let it go, but this is not your everyday case.
Bonds was given immunity from drug, tax and other criminal charges in exchange for him to simply provide honest testimony against BALCO and Anderson. The federal prosecutors are livid that Bonds did not honor his part of the deal. Lying in court usually goes unpunished, but not when the victims of the perjuries are the prosecutors with the power to bring the charge.
Grand jury witnesses are prepared for their testimony by their attorneys. What message was Bonds trying to convey in his testimony? Did he stick to his script, or was he derailed at times?
Bonds' testimony sets up his defense at trial which is familiar and in keeping with the home run king's trademark defiance and egomania. In a nutshell:
I am different. Nobody in the world works out harder than me. I trust only my old friends and nobody who is part of the business of baseball. I remain blissfully ignorant and uncaring about what pro baseball thinks of me or any of its alleged test results. I am old and my body has broken down from surgeries and overuse.
If my pal gave me performance-enhancing drugs, I did not know about it because I trusted him. Besides, he gave me the stuff in the clubhouse, right in front of everybody. I especially needed vitamins and salves during the painful period when my legendary dad suffered from cancer and died. Those years were kind of a blur to me.
Based on developments so far, could Bonds beat the perjury rap even though there appears to be considerable evidence that he took performance-enhancing drugs?
Jury trials are often passion plays where regular people decide which side they like and want to win. In Northern California, Bonds has lots of fans. Some might make it onto the jury. Judge Ilston will properly inform the jury of Bonds' presumption of innocence and the government's burden to prove its case beyond a reasonable doubt.
It may well be that Bonds, baseball’s all-time free-pass leader, will draw another walk – this one the most important of his life.
Send Craig Silverman a question or comment for potential use in a future column or webcast.
