Closing statements were made at the Barry Bonds trial yesterday. And while closings aren’t evidence — and while in my view they aren’t nearly as important as openings — they always feel like a high point. The final opportunity to pound the theme of the case home. But they also serve as something of a tell in which the lawyers reveal, whether they intend to or not, what the weakest parts of their case are.
I’ve been in a courtroom (as an observer) for one perjury case in my life and in that one, like Bonds’, the first words out of the prosecutor’s mouth were exactly the same: “All he had to do was tell the truth.” Maybe there’s a trial advocacy book that talks about using that one, but it’s pretty effective even if it’s common. The jury, especially in this case, can get pretty bogged down in some of the details that formed the basis for the alleged lie, but it’s pretty helpful to remind them that at the end of the day they really are deciding something simple and understandable. Something with which every person has experience and a firm set of moral convictions: lying. In putting it this way, the prosecutors are helping them remove doubt from their heads because we all think — or at least like to think — that we know when we’ve been lied to.
At the same time, the prosecution’s closing underscored the fact that, with the exception of the single charge relating to injections, there was no one who got on the stand who could themselves say “Barry lied, and here’s why.” The prosecutor started a lot of questions with “ask yourself …” making it clear that the jury needs to make inferences based on circumstantial evidence in order to conclude that the grand jury had been lied to. Maybe that makes things easier for them. Maybe, however, it makes them wonder why, if Barry Bonds was a rampant steroids user, no one came into court and said it in plain terms.
I can’t say that I was particularly impressed with what I can gather from reports about the defense’s theme. Bonds’ lawyers argued that the prosecution was a vendetta against Bonds by a government that was angry with him for not being intimidated and subservient in front of the grand jury. Because Bonds refused to say, “Yes, sir,” which irked the government. They said that the main witnesses against him were friends or lovers scorned and that, armed with immunity themselves, were out to get Bonds. As a proponent of Occam’s Razor, any conspiracy theory is dubious to me, and I wonder if the jury feels the same way. I mean, yes, I think Bonds was singled out, but I don’t think it was a personal thing. It was more about careerism and perpetuating a big investigation that served a lot of purposes, be they legitimate and righteous or not (mostly not). But spite? Eh, tough sell for me.
The defense was on firmer ground when they argued — for really the first time in the case — that even if there were lies told by Barry Bonds, they are not worthy of a guilty verdict because they were not, to use the legal term, material. They did not negatively impact the grand jury as it tried to do its job back in 2003, Bonds’ lawyers argued, nor could they have given how inconsequential and ultimately silly his alleged lies were. The defense noted that the prosecution put no one on the stand who said otherwise. This is not quite true — agent Novitzky said the grand jury was negatively impacted — but Novitzky’s own success in going after BALCO may work against him here. They got convictions of everyone they targeted, most without a trial. If Bonds was truly screwing the legal system with his testimony, the jury may very well wonder why there was no seeming injustice done as a result. No criminals who went free.
The defense likewise did a good job highlighting where the government’s evidence was light and where the witnesses testimony was specifically deficient or contradicted. Their toughest task was to poke holes in Kathy Hoskins’ story about seeing Bonds injected. They tried, but observers in the courtroom thought her credible when she testified and weren’t particularly impressed with the defense’s handling of her testimony in closing arguments. Unless the jury decides that Bonds’ lie about injections was immaterial — and given how small and silly it seems compared to the other charges which themselves seem rather minor in the grand scheme, it’s entirely possible they could decide that — there’s a good chance Bonds gets nailed on that charge. If he doesn’t, it will be because of the jury’s disdain for the prosecution’s case as a whole, not because of the actual evidence at trial.
And with that, it’s in the jury’s hands. They will deliberate today. We’ll certainly have a reaction when they reach a verdict.