Thursday, April 7, 2011

New Sports Illustrated Column: Closing Arguments in Barry Bonds Trial

Later today, closing arguments will take place in USA v. Barry Bonds. I preview the arguments and what to expect from the jury for SI. Here's an excerpt:

3. What are the prosecution's chances for landing a conviction?

The odds are stacked against the prosecution. Despite the years they have had to prepare for this trial, prosecutors struggled to make the case that jurors should believe -- beyond any reasonable doubt -- that Bonds knowingly lied under oath.

Most damming, purportedly compelling government witnesses -- Kimberly Bell, Steve Hoskins and Ting -- contradicted one another and collectively gave the impression of a case built on unreliable memory, uncertain credibility and indirect evidence.

Should Bonds be found not guilty, the prosecution's decision to call Ting to the stand will be second-guessed for a long time. If prosecutors knew that Ting would blatantly contradict other witnesses, including in regards to conversations with Steve Hoskins and whether purported changes to Bonds' body were caused by steroids, why did they put him on the stand? If they didn't know of his testimony, why didn't they know? If Ting knowingly lied on the stand, then he should be charged with perjury. We'll see if that happens.

The jury also received mixed testimony regarding whether Bonds fully understood that Anderson provided him with substances that were classified as "steroids" under the law and Major League Baseball rules. If Bonds did not know that he was taking "steroids," then he did not commit perjury in saying that he never used steroids. A better characterization of the operative definition of "steroids" may have aided the prosecution.

Also, while jurors heard a recording that featured Anderson and Steve Hoskins discussing steroids and Bonds, the recording, limited by inferior sound quality, lacked the impact that was suggested by its transcript. A reading of the transcript may have proved more persuasive.

The government can still secure a conviction. Kathy Hoskins was a believable witness. The defense, moreover, declined to offer any witnesses or evidence to rebut her incriminating statements. If the jury reasons that Kathy Hoskins was telling the truth about Anderson injecting Bonds, it could decide to convict Bonds on Count Two.

But jurors may be wary of convicting Bonds based on the lone testimony of one, albeit credible, witness. They may also conclude that given the totality of limitations in the government's case, no conviction is warranted. In light of its decision to not call one witness, the defense seems to be banking on the jury viewing the case against Bonds on the whole rather than on the specific pros and cons of each count.

4. So couldn't the defense's decision to not attack Kathy Hoskins's testimony backfire?

Sure. Kathy Hoskins gave jurors every reason to believe her. Plus, during cross-examination, Bonds's attorney Cristina Arguedas was largely unable to connect Kathy with her less credible brother, Steve. Along those lines, jurors may have been expecting the defense to call at least one witness to the stand who would cast doubt on Kathy Hoskins. Without such a witness, jurors might reason that the defense simply had no one to challenge Hoskins. If so, they might find Bonds guilty on Count Two.

But the defense had a difficult decision to make. If they went after Kathy Hoskins, then the trial's focus could have become a referendum on Count Two and Hoskins's credibility. Such a development would have worked in the prosecution's advantage. Kathy Hoskins was prosecutors' best witness and Count Two was their strongest charge. By declining to call any witnesses, the defense instead hoped that jurors will find overall weakness in the government's case and thus find Bonds not guilty on all counts.

To read the rest, click here.