Thursday, March 31, 2011

Bonds: Hearsay and the Home Run King

By Charles Coughlin

The entire world knows that Barry Bonds took steroids. This assertion, of course, only includes human beings, but if we gave a chimpanzee enough time looking at the differences in hat size between Bonds' Pirates and Giants hats, I may be able to expand the list.

In 2003, the world already knew. Despite this glaring truth, 2003 marked the year when Bonds told a grand jury that he never knowingly took steroids. Seems like a strange decision given the fact that this grand jury testimony was taken under oath, subjecting Bonds to a potential perjury trial.

Fast forward to 2011 and that potential perjury trial is finally living out its potential. Unlike Bonds, it didn't need any performance enhancing supplements to do so. Rather, it took prosecutors seeking to prove to a jury beyond a reasonable doubt that Bonds lied when he said he was never knowingly injected with steroids. That should be easy enough, right? After all, even if there are enough people out there without the background information to stop them from being partial in their decision-making so that Bonds can get a fair jury, there are so many people who know Bonds was injected with steroids that the prosecution should never be short of witnesses. Once the jurors are convinced of his steroid use, the prosecution can simply put forward the testimony from the 2003 grand jury, let the jurors connect the dots, and head home victorious.

Bring on the Testimony

A simple starting point for the prosecution should be the man who trained Bonds. After all, the 2003 grand jury testimony from Bonds specifically had to do with a statement saying that Greg Anderson never injected him with steroids. So if Bonds is lying, Anderson must know the truth. Further, Anderson is legally required to testify, as the Fifth Amendment right against being compelled to testify only applies for self-incrimination. Unfortunately, it puts a real kink in this plan if Anderson simply refuses.

On July 5, 2006, Anderson was found in contempt of court for refusing to testify against Bonds at a grand jury proceeding investigating this perjury charge, but he was subsequently released upon expiration of the grand jury. On August 28, 2006, he was again found in contempt of court for refusing to testify, and he again sat in jail rather than spill the beans on Bonds. He was content to remain in jail until November 15, 2007, when a federal judge ordered his release.

Given Anderson's history, the prosecution may be better off looking elsewhere. After all, with a world population of roughly 6.8 billion people, someone must be able to convince the jurors of Bonds infidelity with the truth.

Not to be hindered by Anderson's refusal, the prosecution has turned to ... Steve Hoskins.

Steve Hoskins is Bonds' childhood friend and former business partner. More importantly, he saw Bonds and Anderson walk into a bedroom together while Anderson had a syringe. Damning evidence! Maybe ... it seems bad until the other side brings to light the fact that professional athletes get injected with all sorts of perfectly legal, perfectly rule-abiding substances. After all, Chase Utley has been receiving cortisone injections for the injury problems he's been having this spring, and I haven't heard anyone complain about that.

So all Hoskins can offer is that he witnessed Bonds and an athletic trainer walk into a bedroom with a syringe? Even if the testimony was better for the prosecution, and Anderson had been carrying a box with big letters on the side that said steroids, I'm still not sure they could get a conviction. I saw "My Cousin Vinny," if you don't see the crime occur, a defense lawyer is going to tear your story apart.

Meanwhile, the prosecution's idea to bolster the Hoskins testimony is more not-all-that-helpful testimony. Kimberly Bell, a former Bonds girlfriend (and playmate), testified to the fact that at a certain point, Bonds couldn't perform in all the manly ways he had early in their relationship. She'll also say he was angry and threatening. But last I heard, you don't go to jail for impotence and anger. This leaves only the testimony by Bell that Bonds blamed an elbow injury on steroid use and that other players were using steroids, a pretty sparse collection of evidence to find someone guilty beyond a reasonable doubt, considering Bell's possible biases (she wouldn't exactly be the first ex-lover to try and stick it to someone).

The Missing Link

What's missing in all of the prosecution's available testimony is Anderson, Bonds, or a fly on the wall's testimony saying Anderson injected Bonds with what Bonds knew to be steroids. Alternatively, Anderson, Bonds, or a fly on the wall could simply corroborate existing steroid-positive blood and urine samples as having come from Bonds.

The good news: James Valente, former BALCO Vice President, can bridge the gap between Anderson's mouth and the jurors' ears! Anderson told Valente (according to Valente's own prior testimony) that certain steroid-positive blood and urine samples came from Bonds.

The bad news: the jurors will never get to hear it. In 2009, a federal judge ruled Valente's prior testimony as inadmissible hearsay. Hearsay is an out-of-court statement used to prove the truth of the statement. The statement by Anderson testified to by Valente would be submitted for the sake of proving its truth: the steroid-positive blood and urine samples come from Bonds.

Under the Federal Rules of Evidence, the laws governing what can and cannot be shown to the jury, Congress has decided that hearsay evidence, barring certain exceptions, is not reliable enough to be shown to a jury. Therefore, the evidence is kept out. In ruling Valente's prior testimony as inadmissible hearsay, the federal judge decided the testimony did not fit any acceptable exception to the Federal Rules of Evidence, and the jury will never see it.*

*In addition to testifying about circumstantial evidence, Kimberly Bell provided testimony that Bonds blamed an elbow injury on steroid use. This provides a nice example of an admissible out of court statement presented to prove the matter asserted. In contrast to Valente's potential testimony regarding a statement by Anderson, not a party to the trial, Bell saying Bonds blamed steroid use for the elbow injury regards an admission — the use of steroids — by a party to the trial. Party admissions are not defined as hearsay under the Federal Rules of Evidence (Rule 801(d)(2)), so the jurors can hear the statement.

The End Result

In order to get a perjury conviction, the prosecutors for Bonds are going to have to keep parading evidence of Bonds' anger, impotence, and associations. So long as Anderson is content to sit in jail and Bonds continues to plead the Fifth, there is no indication that any conclusive evidence can come before the jury. Given current hearsay rules, Bonds has a legitimate shot of beating a perjury charge for which the whole world knows he's guilty. While he may never be widely beloved, he may very well at least be a free man. I don't know about you, but to me that certainly feels like something for him to hang his (oversized) hat on. Oh right, he's also the home run king.

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