By Robert T. Sherwin, Director of Advocacy Programs and Adjunct Professor of Law, Texas Tech University School of Law
The perjury trial of former professional baseball star Barry Bonds entered its third week on April 4, with the government still reeling from the crushing testimony offered by Bonds’ former orthopedic surgeon the week before.
Bonds is being tried on four counts of perjury and one count of obstruction of justice, all relating to his 2004 grand jury testimony in the Bay Area Laboratory Co-Operative (BALCO) investigation into steroids in professional sports. Bonds, who had been granted immunity from prosecution, offered sworn testimony to the grand jury that he never took anything he knew to be steroids, and that he had never received an injection from his then-trainer, Greg Anderson. Rather, Bonds claimed that he thought anything Anderson gave him was flax-seed oil and arthritis balm.
Bonds’ perjury trial has been delayed for the past two years while the Government has appealed rulings that excluded key physical evidence, such as positive steroid tests and so-called “doping calendars” kept by Anderson. Anderson, who pled guilty to his involvement in the BALCO scandal and served three months in prison for that conviction, has repeatedly refused to testify against Bonds in the perjury case. As a result, the courts have excluded as hearsay the evidence kept by Anderson.
But even without Anderson’s testimony and the related physical evidence, the Government is not without ammunition. It thought it was on solid footing with the testimony of Steve Hoskins, Bonds’ former business manager, who testified that he had as many as 50 conversations with Dr. Arthur Ting, Bonds’ former orthopedic surgeon, about Bonds’ steroid use. The prosecution later called Ting to the stand, presumably to corroborate Hoskins’s testimony. But Ting did no such thing, instead blindsiding the Government by denying that he had any conversations with Hoskins about Bonds’ steroid use. If the jury believes Ting—which it has no reason not to, given that the prosecution shockingly made no effort to treat him as a hostile witness or discredit his testimony after he surprised them on the stand—then it will likely see Hoskins as a liar. This was certainly a devastating blow to the Government’s case, which now must convince the jurors to trust its other witnesses (one of which is Hoskins’s sister) even if they don’t believe Hoskins.
Prior to the Ting debacle, the government had been putting on a solid, albeit unspectacular, case. Its key witness was Kim Bell, Bonds’ former mistress. Bell told the jury—while often fighting back tears—that Bonds confided to her that his 1999 elbow injury was the result of steroid use. Bell also spoke of changes to Bonds’ body and personality, including acne on Bonds’ back and shoulders, hair loss, testicle shrinkage, and extreme aggressiveness and irritability.
Also key was the testimony of Kathy Hoskins, Bonds’ personal assistant and sister of then-business manager Steve. Kathy Hoskins testified that she personally witnessed Anderson inject Bonds with a syringe in Bonds’ stomach. If the jury believes Hoskins, it may have a hard time acquitting Bonds on at least one of the perjury counts; Bonds swore to the grand jury that Anderson never injected him with anything.
The defense’s strategy thus far has been consistent, attacking the Government’s witnesses as jilted former players in Bonds’ life who now wish to see him suffer.
Ultimately, Bonds’ guilt or innocence will boil down to whether the jury believes the prosecution’s witnesses, whose testimony taken together paints a clear picture that Bonds knew he was using steroids. On the other hand, if the defense has been successful in its efforts to portray the Government’s witnesses as an angry ex-lover and lying former business associates, then the jury will likely acquit. Either way, Bonds won’t see any jail time. In two previous BALCO perjury cases, one involving cyclist Tammy Thomas and the other involving track coach Trevor Graham, the judge presiding over Bonds’ trial handed out sentences of home confinement and probation. There’s no reason she shouldn’t do the same for Bonds, assuming he doesn’t take the stand and perjure himself in this trial.
But even if Bonds’ liberty isn’t necessarily on the line, his legacy—including his prospects of induction into baseball’s Hall of Fame—certainly is.
And don’t think other parties aren’t watching closely. Former pitcher Roger Clemens awaits a perjury trial of his own in July for the testimony he gave to Congress in 2008. How the Bonds trial affects the Clemens case—which is much stronger for the Government than the one it has against Bonds –will remain to be seen.
Professor Robert T. Sherwin is the Director of Advocacy Programs at Texas Tech University School of Law in Lubbock, Texas, where he teaches courses in sports law, entertainment law, and litigation skills.
