SAN FRANCISCO – Jurors in the Barry Bonds case remained mostly out of sight on day 3 of their deliberations. They never entered Judge Susan Illston's courtroom on the 19th floor of the Phillip Burton Federal Building, spending about six hours behind closed doors Tuesday without reaching a verdict.
Except for a couple of quick breaks and a timeout for lunch, that was it.
No questions for the judge. No readbacks of testimony. And no clues as to which way, if any, the eight women and four men who will decide the home-run king's fate are leaning.
With each passing hour Wednesday, speculation mounted as to whether the jury even will be able to reach a verdict on the four charges: three counts of making false statements to a grand jury in 2003 and one count of obstruction of justice.
Only the dozen jurors really know what's going on.
"I would say it is still early to be thinking about a hung jury," said Douglas Tween, a former trial attorney in the Justice Department's antitrust division and now a principal at Baker & McKenzie. "A general rule of thumb is one to two days of deliberation for every week of trial, so I don't think this case is unusual at this point."
Following 25 witnesses who testified over the better part of three weeks, the jury must decide whether Bonds is guilty beyond a reasonable doubt on each count. He is charged with lying to the grand jury when he denied receiving steroids and human growth hormone from personal trainer Greg Anderson and when he said that he allowed only doctors to inject him.
During closing arguments last week, defense lawyer Allen Ruby reminded the jury that in addition to being proven false, Bonds' statements also must have affected the grand jury's work, which was to investigate the distribution of performance-enhancing drugs by the Bay Area Laboratory Co-Operative.
While Bonds' former personal shopper, Kathy Hoskins, testified she saw Greg Anderson inject Bonds near the navel in 2002, she also didn't know what was in the syringe.
In the jurors' two questions to Illston last Friday — their only ones during deliberations thus far — they asked to rehear a secretly recorded conversation between former Bonds business partner Steve Hoskins — Kathy's brother — and to have Kathy Hoskins' testimony read back. Even if the jurors determine Bonds' answers were false, they also must conclude that by lying Bonds was capable of influencing the grand jury's decision.
"Determining whether or not an answer would have been material is left for the jury to decide, and they don't get a lot of guidance," Tween said.
The obstruction of justice count is tricky because the jury must consider not only Bonds' statements on injections, HGH and steroids but also four other answers he gave to the grand jury more than seven years ago. While Bonds' statements may be considered evasive — one of the obstruction standards — they also went off on tangents that could cause jurors to think they were unimportant.
Through three days, the jurors have not given any indications they are deadlocked. If they do send Illston such a note, she could respond with what's known as an "Allen charge," an additional set of instructions based on the 1896 Supreme Court case Allen v. U.S.
The judge reminds the jurors "the trial has been expensive in time, effort, money and emotional strain to both the defense and the prosecution" and tells them "if a substantial majority of your number are in favor of a conviction, those of you who disagree should reconsider whether your doubt is a reasonable one since it appears to make no effective impression upon the minds of the others." The judge also instructs the jury "if a majority or even a lesser number of you are in favor of an acquittal, the rest of you should ask yourselves again, and most thoughtfully, whether you should accept the weight and sufficiency of evidence which fails to convince your fellow jurors beyond a reasonable doubt."
Stanford University Law School Professor Emeritus William Gould, familiar with baseball from his days as chairman of the National Labor Relations Board, said it's "tough to figure" which side lengthier deliberations benefit. He said the delay could be because "there is a holdout or they are trying to figure what this conviction would mean for Bonds."
Associated Press writer Paul Elias contributed to this report.