For nearly eight years, the court of public opinion has deliberated over whether former Giants superstar Barry Bonds lied about knowingly using steroids as he shattered baseball's all-time home run records.
Now, it will be a jury's turn to hand down a verdict. And while Bonds' legacy as one of baseball's greatest players and his chances for the Hall of Fame have been at stake in the public debate, a jury's decision could cost him far more. Striking out in court could mean a felony conviction and perhaps time in a prison cell.
On Monday, Bonds will appear for the biggest game of his life, the beginning of his trial on three counts of lying to a grand jury in December 2003 about using steroids as he chased the home run records, as well as one count of obstructing justice through the same testimony. Defense lawyers and prosecutors will begin by choosing the jury, and most likely present opening statements and the first witnesses by Tuesday.
The Bonds trial may offer an unprecedented glimpse into how steroids infected baseball, just as teams are in the throes of spring training and preparing for opening day. And it will serve as the long-anticipated final act in the BALCO saga, which began in 2002 with federal agents searching through garbage at a now-defunct Peninsula laboratory and wound up casting its accusatory shadow on some of the biggest names in sports.
The silent witness
From the start,
There have been concerns the federal government has spent too much time and money pursuing Bonds, but the Justice Department has made it clear the prosecution is designed to prove that no one, including the rich and famous, can get away with lying under oath. And that has set up the legal showdown.
"This case is going to trial because it's about two competing visions," said Rory Little, a Hastings College of the Law professor and former federal prosecutor. "It's about the sanctity of the grand jury and the protection of our process. And on the other side, it's about how far the government is willing to go to prosecute a crime that a lot of Americans don't consider very serious."
The trial will balance the legal intricacies of perjury with the raw realities of how a superstar transformed from his early days as a slender Pittsburgh Pirates outfielder and MVP to his bulked up final seasons as the Giants' home run-hitting centerpiece. But it will unfold without the accounts of the two men who know for sure what Bonds put in his body and whether he knew he was using performance-enhancing drugs as he pursued some his sport's most hallowed records.
Bonds, now 46, and his former personal trainer Greg Anderson are unlikely to say a word in the courtroom. Anderson, in fact, might spend the duration of the trial in a jail cell for refusing to testify.
The trial, then, will amount to bits and pieces of evidence linked to Bonds, his relationship with Anderson and the use of steroids. Given that legal experts say perjury cases are among the most difficult to prosecute in federal court, it is anybody's guess whether this is a game the government can win.
Among other things, prosecutors will be unable to use arguably their most powerful evidence: Anderson's testimony or two positive steroids tests they say came from Bonds between 2000 and 2001 that have been excluded by U.S. District Judge Susan Illston, who is presiding over the trial.
But the government does have some powerful evidence left, including the testimony of other baseball players, the account of Bonds' former mistress and an alleged positive steroids test administered by Major League Baseball in 2003.
"While the government's case was significantly weakened with the Anderson-related evidence thrown out, the defense will still be challenged with fighting off a variety of circumstantial evidence," said William Keane, who represented track coach Trevor Graham, convicted of lying to a federal agent in the BALCO probe. "There is no question the case is weakened. But that doesn't mean it's a weak case."
Federal prosecutors declined to comment.
Allen Ruby, Bonds' lead attorney, has repeatedly said the same thing: "Barry Bonds is innocent."
But in court papers, the government has set out a strikingly simple case. Bonds is alleged to have lied to the grand jury investigating BALCO, a probe that eventually led to the indictment of a number of figures accused of peddling steroids to top athletes, including BALCO mastermind Victor Conte and Anderson. Conte and Anderson cut plea deals in which they wound up serving a few months in prison.
'Not that I know of'
The indictment focuses on a number of exchanges in the grand jury between prosecutors and Bonds in which the then-superstar denied using steroids or getting them from Anderson.
"Did he (Anderson) ever give you anything that you knew to be a steroid? Did he ever give you a steroid?" assistant U.S. attorney Jeff Nedrow asked Bonds in one of the exchanges.
"I don't think Greg would do anything like that to me and jeopardize our friendship. I just don't think he would do that," Bonds replied.
"Well, when you say you don't think he would do that, to your knowledge, I mean, did you ever take any steroids that he gave you?" Nedrow asked.
"Not that I know of," Bonds replied.
For the government, legal experts say, the challenge will be proving Bonds knew he was using steroids, and that he deliberately misled the grand jury under oath. Bonds, in his grand jury testimony, admitted he used newfangled steroids from BALCO known as "the cream" and "the clear." But Bonds denied knowing those substances were steroids, creating another hurdle for prosecutors.
What jury won't see
Michael Wong, a former federal prosecutor who for a time supervised the BALCO and Bonds investigations, said perjury cases generally are fraught with difficulty.
"It goes way beyond the truth or falsity of the statement under oath," Wong said, without discussing the Bonds trial specifically. "Getting a question wrong is not enough. You have to prove their state of mind, and that's a tough thing to do."
Prosecutors hoped to use the 2000 and 2001 drug tests they say showed Bonds also tested positive for injectable forms of steroids, despite telling the grand jury no one had ever injected him besides his personal doctor. And they had also hoped to show the jury BALCO logs, such as one labeled "BB," that were linked to his steroid tests.
But Illston excluded that evidence because, without Anderson, there was no direct evidence linking the urine samples to Bonds, making the tests hearsay.
As a result, the government's case consists of some of these major ingredients:
Bonds' lawyers insist the government cannot prove Bonds committed perjury. And Bonds has his defenders, including Conte, who is not on a witness list.
"I have said publicly since I was indicted in 2004 that I have no personal knowledge of Barry Bonds using anabolic steroids," Conte said. "In fact, I have repeatedly said that I have never even had a discussion about anabolic steroids with Barry."
Meanwhile, legal experts say that even if Bonds is tempted to testify, his lawyers are likely to discourage him from taking the stand.
In the end, if Bonds is convicted, it may tarnish his achievements, but he is unlikely to face much prison time. A number of other athletes have been convicted of lying under oath during the BALCO investigation but have received short sentences. In fact, when world-class cyclist Tammy Thomas was sentenced to six months of house arrest for lying to the BALCO grand jury, Illston made a point of saying she did not want to sentence the athletes to more than what the original BALCO conspirators such as Conte received.
"He could lose the trial and still not go to prison," said a lawyer knowledgeable about the case. "But I don't know if he can lose the trial and go to the Hall of Fame."
Contact Howard Mintz at 408-286-0236.