Jonathan Littman (jonlittman@earthlink.net) checks in with his second bit on Barry Bonds. If you missed part one, click here.

The Indictment

Four years after a search of BALCO and months of grand jury testimony, the government handed down a perjury indictment against Barry Bonds full of holes.

Here’s the government’s problem. Bonds told the prosecutor he took “the cream” and what he thought was flax seed oil. He made no bones about the fact that he was taking some unknown substances. That leaves the government’s perjury case resting on narrow threads. Did Bonds lie about the dates he admitted he took “the cream” and flax seed oil? Did he know all along that these substances were steroids?

The government is telling a story, but it’s not easy to follow the plot. The indictment underlines certain Bonds statements without explanation, and then abruptly clips his testimony with ellipsis. One wonders:  Why all the deletions and omissions? Might a more complete selection of Bonds’ testimony hinder the government’s case?

Let’s begin with the facts. Steroids are legal with a prescription and millions of Americans take them legally. Whether Bonds took steroids or any other performance enhancing drugs – as experts say hundreds of major league ball players have – has now been rendered largely irrelevant. To put this in context, remember that individuals are rarely prosecuted for possession or use of steroids. It’s a schedule III drug, at the bottom of the list. Jail time for individual users is rare, the charge is generally a misdemeanor with a $1,000 fine. The most serious steroid charges are brought against dealers. Victor Conte, the BALCO kingpin, got just four months in prison. That doesn’t leave much leverage. Why would one alleged user get more time than the dealer supplying dozens of professional athletes?

So what’s this all about? Bonds’ intent, his thinking, his state of mind. The government must do more than suggest Bonds made evasive or misleading testimony. To convict, it must prove beyond a reasonable doubt that Bonds’ knowingly made  “false material declarations” to the grand jury, prove overwhelmingly that Bonds blatantly lied. Any doubt in the minds of one or two of the San Francisco jurors will likely spell failure.

Honest prosecutors will tell you perjury cases are the hardest to win. A slim ten pages, the indictment consists of just five counts, not particularly robust. Federal indictments often boast ten or more separate counts.

The best way to understand the Bonds indictment is to start at the bottom and work back up.

COUNT FIVE: Obstruction of Justice.

Sorry if I’m dense, but is Bonds accused of destroying evidence, and ordering others to lie? No.  Did he impede the BALCO case? No.  

Next.

COUNT FOUR: Perjury (when he took the cream).

The prosecutor asks Bonds if he got more than vitamins and proteins from Anderson. Bonds replies that during his father’s struggle with cancer and eventual death, “I was fatigued, tired, just needed recovery, you know. And this guy says: ‘Try this cream, try this cream.’ And Greg came to the ballpark and he said, you know: ‘This will help you recover.’”

So there it is – Bonds clearly testifies he took this cream, and something else he says Anderson called flax seed oil.

So tell me why is this is an open and shut perjury case?

The prosecutor goes on to attempt to nail down the time frame. He says he has a calendar taken from a search with the initials BB, dated December 2001.

PROSECUTOR: “Were you getting items during that period of time from Greg?

BONDS: “No. Like I said, I don’t recall having anything like this at all during that time of year. It was toward the end of 2000, after the World Series, you know, when my father was going through cancer.”

The prosecutor keeps pressing the December 2001 date.

BONDS: “Not that I can recall. Like I say, I could be wrong. But I’m – I’m going from my recollection it was, like in the 2002 time and 2003 season.”

Did you hear that? Bonds said, “I could be wrong.”

This count is about the government’s attempts to trip Bonds up with what seem like trick questions about dates. Yet Bonds says he's not sure about the dates—at various times he mentions 2002/2003, then 2003, then "end of 2000, after the World Series," and then back to 2002.

“Like I say, I could be wrong.”

Next.

COUNT THREE: Perjury (Growth Hormone or Testosterone).

The government asks Bonds point blank if Anderson gave him anything “you understand to be human growth hormone” or “testosterone.”

BONDS: No.

Remember, this is what Bonds understands to be testosterone.

Next.

COUNT TWO: Perjury (The syringe).

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

After a long discussion of Bonds’ doctors, the prosecutor asks whether he had ever been injected by Andersen or his associates.

BONDS: No, no.

Frankly I don’t get this line of questioning.  The government does not even say in this count whether what it believes that what was taken with a syringe was a steroid – or a vitamin.

Anderson spent a year in jail refusing to testify against Bonds. Is he now likely to testify that he stuck a needle in Bonds?

Next.

COUNT ONE:  Perjury (Steroids).  

PROSECUTOR: Let me be real clear about this. Did he [Anderson] ever give you anything that you knew to be a steroid? Did he ever give a steroid?

BONDS: 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.

PROSECUTOR: 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?

BONDS: Not that I know of.

Bonds may have given the perfect answer to a perjury trap. Nor did the prosecutor help the government. Inadvertently, he added the key phrase that may be underlined in the minds of the jury – “to your knowledge.”

This is all about Bonds’ knowledge.

And consider this. In Count One, the prosecutor is asking Bonds about documents he says refer to tests in November of 2000.

PROSECUTOR: So, I’m going to ask you in the weeks and months leading up to November 2000, were you taking steroids?

BONDS: No.

PROSECUTOR: Or anything like that?

BONDS: No, I wasn’t at all. I’ve never seen these documents. I’ve never seen these papers.

Why had Barry Bonds never seen the documents the prosecutor was using to ask a series of questions? Was the federal prosecutor leading an honest, straightforward truth seeking exercise? Or did the government bring out a stacked deck for Barry Bonds?