Prosecutors in the federal case against Barry Bonds say a key witness has rediscovered the tape of a secretly recorded 15-minute conversation with the slugger's doctor, sparking a fight between the government and defense lawyers over whether the new material can be included at a trial years in the making.
On a day when there was no testimony because a juror was ill, the government said Monday that former Bonds business partner Steve Hoskins found a cassette recording of his conversation with Dr. Arthur Ting.
Prosecutors, hoping to counter Ting's testimony last week that he never discussed Bonds' alleged steroid use with Hoskins — who insisted they had — said both men might be recalled to the witness stand.
"Mostly, I could hear Mr. Hoskins. I could hear very little of what Dr. Ting said," U.S. District Judge Susan Illston told lawyers late Monday. She added that that from what she could discern, the new recording was "almost entirely inadmissible or irrelevant."
The trial began March 21, and prosecutors had planned to rest their case Monday with Dr. Don Catlin, former head of the UCLA Olympic Analytical Laboratory. But they now plan to call three lab workers, raising the government's witness total to 25. That, plus the new evidence, makes it likely the case won't go to the jury before next week.
Hoskins, the government's second witness, testified he recorded a conversation with Ting discussing Bonds and steroids in 2003 or 2004, after federal agents raided the Bay Area Laboratory Co-Operative (BALCO). BALCO was found to be the center of a steroids distribution ring, of which Bonds' personal trainer was a part.
Ting testified last week that he had only one, general conversation with Hoskins about steroids and he denied Hoskins' testimony that the two had as many as 50 discussions about Bonds and performance-enhancing drugs.
Assistant U.S. Attorney Matthew Parrella said federal agent Jeff Novitzky picked up the recording from Hoskins' house at 10 p.m. Sunday night but that Hoskins did not know whether the Olympus recorder he turned over at the same time was the machine used to tape the conversation. Novitzky then made a digital recording of the tape, which the government said was originally made at Ting's office in Fremont.
The tape and recorder are being taken to the office of a defense expert on Tuesday morning. While preliminary transcripts of the recording were made by the prosecution and the defense, they were not released Monday.
Illston said the contents of the tape were not very substantive, and that "almost all of this is people's comments being driven by what is said to be newspaper articles and news reports" from around the time of the BALCO raid.
"This will never come into evidence," said Bonds' lead lawyer, Allen Ruby.
Parrella said the government wanted to use the tape to establish a conversation about steroids happened, "not the accuracy of the statements within it."
Defense lawyer Cristina Arguedas said the recording had been subject to a grand jury subpoena in 2005 and questioned why it hadn't been turned over to the defense until now.
Arguedas and prosecutors already were clashing over the prosecution's failure to disclose notes of a 2006 interview with Ting, two days before his grand jury testimony. Assistant U.S. Attorney Jeffrey Nedrow maintained last week the meeting wasn't substantive, but the defense gave the court a statement from Matthew Jacobs, a former lawyer for Ting, stating the session "was substantive and lasted approximately three hours."
Illston wanted to know "why a report wasn't generated?" Nedrow maintained it would be duplicative to take notes of meetings prior to testimony.
Bonds, baseball's season and career home run leader, is charged with four counts of making false statements and one count of obstruction of justice for telling a grand jury in 2003 that he never knowingly used performance-enhancing drugs and received injections only from physicians.
The eighth day of testimony was postponed because juror No. 66 — names won't be revealed until the day after a verdict — was sick with kidney stones. The Antioch resident, age 60, is a father of four and former helicopter pilot in the Vietnam War who works as a data center engineer for Amazon.com.
He had a doctor's appointment Monday afternoon, and was given a prescription for Tylenol with codeine.
"I think we just should be prepared to act swiftly if we need to excuse his presence," Illston said.
There are only two alternates, and the first alternate — juror No. 110 — is a woman who works part time at a restaurant. If the juror is replaced by the alternate, there would be nine women and three men on the panel.
When the trial resumes Tuesday, Catlin and the lab workers will testify and portions of Bonds' grand jury testimony will be read to the jury.
Starting Wednesday, each juror will get a $10 raise to $50 a day for serving on the case.