SAN FRANCISCO – A federal judge ruled jurors in the Barry Bonds trial may not hear a freshly rediscovered recording of two key witnesses — ridiculed by the defense as a "miracle tape" — as prosecutors rested their case against the home-run king Tuesday after 2½ weeks and 25 witnesses.
The defense said it planned to call up to six witnesses, including possibly Bonds himself, in a presentation that lawyers projected will start and end Wednesday. If that schedule holds up, closing arguments would take place Thursday morning and the case could go to the jury of eight women and four men later in the day.
Bonds, Major League Baseball's season and career home run leader, is accused of four counts of making false statements and one count of obstruction of justice for telling a grand jury in 2003 that he didn't knowingly use performance-enhancing drugs. Prosecutors ended their presentation with a 1 hour, 35 minute reading of portions of Bonds' grand jury testimony.
Dressed in a gray suit and striped silver tie, Bonds' alternately watched for the jurors' reaction and followed in a three-ring binder as his testimony was read. One juror chewed on a pen and rested her head on a silver thermos.
Jurors and Bonds' mother laughed when Bonds' 7½-year-old answer to Assistant U.S. Attorney Jeffrey Nedrow was read back in which the baseball star said: "Yes. You are confusing. I'm telling you," before addressing the grand jurors directly and telling them: "Is he confusing to you guys? I'm glad it's not just me."
After the prosecution rested, Bonds' lawyers filed four motions with the court, the most significant of which asked U.S. District Judge Susan Illston to acquit Bonds now. They also filed motions to strike testimony by four players on how they received drugs from former Bonds' trainer, Greg Anderson, testimony on the side effects of steroids and HGH, and part of the taped conversation between former Bonds business partner Steve Hoskins and Anderson.
Illston said she was inclined to strike part of the Hoskins-Anderson conversation that was played for the jury and testimony from former Bonds' girlfriend Kimberly Bell about his shrunken testicles, which the government says is a side effect from steroids use. She also wondered aloud whether the government had provided any evidence to back its count charging Bonds with lying when he said he received only vitamins from Anderson before the 2003 season.
She gave prosecutors until Wednesday morning to respond in writing before finalizing her decisions.
Dr. Don Catlin, former head of the UCLA Olympic Analytical Laboratory, was the last prosecution witness, and he testified about Bonds' 2003 urine test for Major League Baseball's anonymous survey, which was seized by federal agents the following year. At Catlin's lab, it tested positive for Tetrahydrogestrinone (THG), a designer steroid known as "The Clear," and a female fertility drug. Three UCLA lab employees preceded him to the stand.
Bonds testified to the grand jury that Anderson had told him the substances he was giving Bonds were flaxseed oil and arthritic cream.
While Catlin was testifying, prosecutors submitted a motion to allow into evidence a recording of a 15-minute conversation in 2003 between Hoskins and Dr. Arthur Ting, Bonds' orthopedic surgeon.
But Illston quickly rejected the request.
"It's barely intelligible," she said, adding: "Where you hear the name Barry, it's not clear what is said." She also said the material didn't shed much light on the Bonds case.
The recording, taken from a microcassette recorder, consists mostly of Hoskins, a friend of Bonds since childhood, discussing media accounts of the 2003 government raid of Bay Area Laboratory Co-Operative (BALCO), which was the center of a steroid distribution ring in which Anderson was a participant. Ting responds "yeah" about a dozen times. When Hoskins tells Ting "the only reason narcotics was there" Ting immediately finishes the sentence with "the drugs."
In the version of the transcript created by the government, 126 passages over 10 pages are marked "(UI)" for "Unintelligible."
Hoskins testified he spoke with Ting about Bonds and steroids on approximately 50 occasions, while Ting said they had only one general discussion of steroids. While the tape was subpoenaed in 2005, Hoskins told federal agent Jeff Novitzky he found it at a storage facility on Sunday afternoon and turned it over to Novitzky at 10 p.m. that night.
"The tape is highly relevant to Hoskins' credibility and therefore to the question whether the defendant knowingly lied to the grand jury about his use of steroids," prosecutors said in their motion. "Admission of the tape is also necessary to rectify the jury's misimpression that the tape does not exist."
Lead Bonds attorney Allen Ruby dismissed the recording as "the miracle tape discovered by Mr. Hoskins."
"Hoskins now claims that the recording has miraculously surfaced as the government prepares to rest its case" defense lawyers wrote. They also said "Hoskins' conduct in making a secret recording of a private conversation was criminal under both California and federal law" and they asserted "if the recording is indeed of a Hoskins-Ting conversation, it was made in an attempt to extort Mr. Bonds after Bonds fired Hoskins in the spring of 2003."
Illston also ruled the defense may not challenge Hoskins' credibility based on the lack of a recording.
Bonds is charged with lying when he said he never received steroids from Anderson, never received human growth hormone from Anderson, received only vitamins from Anderson prior to 2003 and allowed himself to be injected only by doctors.
Ruby said a decision whether to have Bonds testify in the flesh was to be made Tuesday night. The other possible defense witnesses he mentioned are former Bonds' trainer Harvey Shields, Bonds' lawyer Laura Enos, FBI agent Heather Young and IRS agent Erwin Rogers. The defense also may recall Hoskins to lay the foundation to introduce a recording he made of a conversation with Enos.
Lawyers said Illston had not told the sides whether the jury would deliberate on Fridays, which were off-days during the first two weeks of the trial.