By Michael McCann
April 13, 2011

A federal jury convicted Barry Bonds of a single charge of obstruction of justice but failed to reach a verdict on the three counts at the heart of allegations that he knowingly used steroids and HGH and lied to a grand jury about it. Michael McCann reacts to the surprising conclusion and offers his legal expertise regarding eight key points:

Who won: the prosecution or Bonds?

Given how much several key prosecution witnesses struggled on the stand, obtaining a conviction on Count Five (one count was dropped during the trial) should be considered a moderate victory for the government. Keep in mind, the prosecution convinced all 12 jurors that Bonds was at least evasive and misleading in the government's investigation into BALCO. From that perspective, the government correctly determined that Bonds broke the law and warranted prosecution. Bonds, moreover, could be sentenced to prison time.

On the other hand, Bonds avoided a conviction on perjury charges and, strictly in terms of his baseball legacy, avoided a finding of guilt that specifically connected him to using steroids and Human Growth Hormone. He was found guilty for impeding the government's investigation into BALCO. Bonds "lost" in the sense that he is now a convicted felon, but he clearly avoided a worse scenario -- conviction on all four counts or on any of the perjury counts.

But federal prosecutors convict 90 percent of indicted defendants. Shouldn't they have done better here?

This question begets big-picture and small-picture responses.

Big picture first. While the 90 percent statistic has received a good amount of attention, it does not speak to considerable differences in wealth among indicted defendants and the possible impact of those differences on trial outcomes. Bonds possessed the wherewithal to assemble a team of leading defense attorneys, from different law firms and with complementary skills. The vast majority of indicted defendants, in contrast, cannot afford a team of lawyers. In fact, according to statistics provided by Department of Justice in 2000, 66 percent of federal felony defendants are represented by court-appointed counsel. Also, and less important, the 90 percent conviction rate is for all crimes; the federal government's success rate in perjury trials is slightly lower, at about 85 percent.

In terms of the trial, the prosecution suffered a major setback when Dr. Arthur Ting testified and contradicted other prosecution witnesses. There were three ways in which he likely caused jurors to find reasonable doubt.

First, Ting repudiated claims by another government witness, Steve Hoskins, that they discussed steroids. By doing so, Ting called into question the believability of Hoskins's incriminating statements about Bonds.

Second, when the government highlighted how Ting would testify, it highlighted that "Dr. Ting will testify that he was the defendant's orthopedic surgeon and will testify as to his physical observations of the defendant... " The expectation, of course, was that Ting would link purported physical changes in Bonds' body -- which Kimberly Bell spoke about -- with steroids. Instead, Ting provided non-steroid explanations for those changes.

Hindsight is 20/20, and it is likely that Ting offered a different story to prosecutors before the trial. Still, prosecutors should not have called him to the stand.

Bonds' attorneys also effectively questioned the "materiality" of the claims against their client. Namely, they raised doubts in the jurors' minds as to whether statements made by Bonds to the grand jury in 2003 were central to the government's task of investigating BALCO. Bonds's attorneys were similarly effective in showing that Bonds, in 2003, really did not know which substances were classified as steroids. In addition, prosecutors could have more persuasively shown that statements by Bonds -- a key client of personal trainer Greg Anderson's -- were absolutely central to the BALCO investigation.

What is obstruction of justice?

Obstruction of justice is a "catch-all" criminal charge that covers a wide-range of illegal conduct in impeding the administration of justice. In the case of Bonds, he was intentionally evasive and misleading while testifying before the grand jury in 2003. Although he may not have knowingly lied about using steroids or being injected by Anderson, his responses to the grand jury were nonetheless dishonest in other ways, such as in framing his answers to confuse jurors or in deliberately omitting facts and other information.

The jury instructions for Count Five referred to four statements which Bonds made to the grand jury in 2003. All 12 jurors believed that Bonds committed obstruction of justice in at least one of them:

Statement A

Q: Let me move on to a different topic. And I think you've testified to this. But I want to make sure it's crystal clear. Every time you got the flax seed oil and the cream, did you get it in person from Greg?

A: Yes.

Q: Is that fair?

A: Yes.

Q: And where would you typically get it? Where would you guys be when he would hand it to you generally?

A In front of my locker, sitting in my chair.

Q: Did he ever come to your home and give it to you?

A: Oh, no, no, no. It was always at the ballpark.

Statement B

Q: ...Do you remember how often he recommended to you about, approximately, that you take this cream, this lotion?

A: I can't recall. I don't -- I wish I could. I just can't ... I just know it wasn't often. I just think it was more when I was exhausted or tired than like a regular regimen. You know, it was like if I was really sore or something, really tired...that's -- that's -- that's all I can remember about that.

Q: ... would you say it was more or less often or about the same as the amount of times you took the liquid, the flax seed oil, the thing you understood to be flax seed oil?

A: I don't know. I never kept track of that stuff. I'm sorry. I didn't sit there and monitor that stuff.

Statement C

Q: Did Greg ever give you anything that required a syringe to inject yourself with?

A: I've only had one doctor touch me. And that's my only personal doctor. Greg, like I said, we don't get into each others' personal lives. We're friends, but I don't -- we don't sit around and talk baseball, because he knows I don't want -- don't come to my house talking baseball. If you want to come to my house and talk about fishing, some other stuff, we'll be good friends, you come around talking about baseball, you go on. I don't talk about his business. You know what I mean? ...

Q: Right.

A: That's what keeps our friendship. You know, I am sorry, but that -- you know, that -- I was a celebrity child, not just in baseball by my own instincts. I became a celebrity child with a famous father. I just don't get into other people's business because of my father's situation, you see...

Statement D

Q: Did Greg ever give you testosterone in injectable form for you to take?

A: No.

Q: Would you have taken it if he gave it to you?

A: He wouldn't jeopardize our friendship that way.

Q: And why would that -- you're very clear that that would jeopardize your friendship. Why would that jeopardize your friendship?

A: Greg is a good guy. You know, this kid is a great kid. He has a child.

Q: Mm-hmm.

A: Greg is -- Greg has nothing, man. You know what I mean? Guy lives in his car half the time, he lives with his girlfriend, rents a room so he can be with his kid, you know? His ex takes his kid away from him every single five minutes. He's not that type of person. This is the same guy that goes over to our friend's mom's house and massages her leg because she has cancer and she swells up every night for months. Spends time next to my dad rubbing his feet every night. Our friendship is a little bit different.

According to Bonds's attorney, Dennis Riordan, the statement which led the jury to find Bonds guilty for obstruction of justice was when Bonds testified in 2003 about being a "celebrity child."

Why didn't the jury believe Kathy Hoskins and convict Bonds on Count Two?

They may have believed her when she testified that she saw Anderson inject Bonds, but nonetheless felt uncomfortable finding Bonds guilty based on one credible witness.

That said, the defense gambled in how they approached Hoskins. While they cross-examined most of the government's witnesses in a scrutinizing, at times dissecting manner, they adopted a far more lenient approach with her. Most of the questions posed to Hoskins delved into her professional relationship with her brother, Steve, who struggled on the stand earlier in the trial. Not only did the questioning fail to connect Kathy with Steve, it failed to leave serious doubts as to her recollection of watching Greg Anderson inject Bonds.

But Bonds' attorneys were hamstrung in dealing with Kathy Hoskins. For one, it was unclear whether they could call witnesses who would have repudiated her testimony or draw questions about her truthfulness. Also, Hoskins's close relationship with Bonds and his family -- especially Bonds' mother, Patricia Bonds -- may have dissuaded Bonds's attorneys from attempting to impugn Hoskins on the stand.

At the end of the day, the defense avoided a conviction on Count Two. Their gamble paid off.

Did the defense drop the ball in failing to vigorously defend against Count Five?

Again, hindsight is 20/20. The defense followed a strategy that most defense attorneys would have followed: expend most effort in defending against the three perjury counts and view a conviction on obstruction of justice as dependent on a conviction on one of the three perjury counts; normally a conviction on obstruction of justice follows one on perjury, rather than being found independent of one. In retrospect, more attention should have been paid to the four statements included in the jury instructions for Count Five.

When will Bonds be sentenced and what sort of sentence will he receive?

First, the defense will ask that Judge Illston overrule the jury's decision. It is extremely unlikely that she would do so, as she would have to conclude that the jury was unreasonable in finding Bonds guilty.

Bonds will likely be sentenced in four to six months. In the months leading up to the sentencing hearing, the U.S. Probation Office will author a "Presentence Investigation Report" which will recommend a sentence. Bonds' lack of criminal record will work in his favor. His refusal to plead guilty, however, will count against him. Sentencing guidelines suggest that he could receive a sentence of 15 to 21 months, though those guidelines are permissive and Judge Illston will reserve the right to impose a sentence outside that range.

During the sentencing hearing, Bonds will have an opportunity to speak and offer an apology -- or to insist on his innocence. Friends and family of Bonds may also speak on his behalf at the sentencing hearing, or they can provide letters asking for leniency.

Bonds may be fortunate that Judge Illston is sentencing him. Illston presided over two other BALCO-related perjury trials in which the defendants -- track coach Trevor Graham and cyclist Tammy Thomas -- were convicted, with Graham convicted of perjury and Thomas convicted of both perjury and obstruction of justice. Illston sentenced each to home confinement (Graham for one year; Thomas for six months). While Illston could distinguish Bonds as more culpable than Graham and Thomas and thus more deserving of time in prison, Bonds should take some comfort in knowing Illston's sentencing in the Graham and Thomas cases.

Even if sentenced to home confinement, Bonds would still experience substantial restrictions on his freedom. He would likely have to wear an electronic monitor at all times and could only leave his home with approval by his supervising officer. Home confinement, however, certainly beats prison.

If Illston sentences Bonds to prison, she could opt for a sentence similar to that received by track star Marion Jones, who, pursuant to a guilty plea, was sentenced to six months in prison, two years of probation and community service.

Can Bonds appeal?

Bonds can and almost certainly will appeal to the U.S. Court of Appeals for the Ninth Circuit. The main source of appeal will be the jury instructions, and specifically those for Count Five, the wording of which Bonds' attorney objected to prior to jury deliberations. Bonds's appellate attorney, Dennis Riordan, will argue that the wording was confusing and misled the jury, particularly in regard to how the jury determined the materiality of the four statements -- were they really central to the BALCO investigation? Apparently the jury thought so.

While the Ninth Circuit would review an appeal of the jury instructions "de novo" -- meaning that the Ninth Circuit can substitute its legal judgment for Judge Illston's legal judgment in how she crafted the jury instructions -- appeals often fail.

Will the government retry Bonds on the perjury counts?

As I explained in a previous column, I believe that the government will initially signal a desire to do so, but will ultimately decline. This case is over.

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