Feds deciding whether to try Bonds or drop charges

After years of investigation, three weeks of trial and millions of dollars spent pursuing Barry Bonds, federal prosecutors were back where they started Thursday — deciding whether to try and prove the home run king's records were built with steroids and lies.

On Wednesday, the jury that was to finally decide whether Bonds deceived a grand jury in 2003 when he denied knowingly using performance-enhancing drugs instead left the issue deeply unresolved.

The panel of eight women and four men convicted Bonds of obstructing justice, but deadlocked on the three charges at the heart of the government's perjury case, including two counts of lying about the use of steroids and human growth hormone. U.S. District Judge Susan Illston declared a mistrial on those three charges.

Now, prosecutors must weigh whether to spend still more money, and staff time, conducting another trial. They typically take into account a hung jury's vote when making such a call, but legal analysts warn that the Bonds trial was very different from the typical criminal case and the usual practices don't apply to such a high-profile defendant.

What's more, the jury's vote on the deadlocked counts were inconsistent. A majority of jurors voted to acquit Bonds on the drug-related charges while voting 11-1 to convict him of lying about never receiving injections from anyone but his doctor.

Further, the judge who would preside over the new trial has been showing impatience with a case that reaches back to Dec. 4, 2003.

That's the day Bonds testified before a grand jury investigating an international sports doping ring centred at the Bay Area Laboratory Co-Operative, also known as BALCO.

Amid the confusion and frustration of Wednesday's muddled verdict, Illston sharply cut off Assistant U.S. Attorney Matthew Parrella's argument that the government need not decide immediately about a new trial.

"The trial is over and we don't need any more speeches," she said. It wasn't the first time she displayed displeasure with the prosecution during the trial — and the more than three years Bonds has been under indictment.

But the judge did agree that prosecutors could decide later about a new trial. She set a May 20 hearing to discuss that issue and to schedule a sentencing date for Bonds.

An obvious calculation will be whether it's worth the effort.

Vermont Law School Professor Michael McCann and others who followed the trial said it's impossible to put an exact dollar figure on the government's expenditure in pursuit of Bonds. The government doesn't do its accounting on a per-defendant basis.

Still, it's clear the figure is substantial, he said.

"The government has spent millions of dollars and hours and is being questioned over whether that time and money could have been better spent elsewhere," said McCann, who specializes in sports law. "There's also a fatigue factor setting in."

Indeed, outside pressure is mounting. Rep. Jack Kingston of Georgia recently questioned at a congressional hearing whether top BALCO investigator Jeff Novitzky was motivated by trying to bring down a celebrity.

"What bothers me is that you've got a very powerful federal government that has the money and time and resources to ruin someone's reputation," Kingston told The Associated Press after the verdict. "Why did it take eight years to get to this point on Barry Bonds? And with all the problems we've got, why are we sitting here at the end of an eight-year investigation?"

Analysts and observers are split over the wisdom of a retrial, with U.S. Attorney Melinda Haag only saying in a written statement that a decision would be made as soon as possible.

"A retrial is warranted," said Stanford University law professor William Gould, who as chair of the National Labor Relations Board cast the decisive vote to end the baseball strike of the 1990s. "At a minimum, they should retry Bonds on his injection testimony."

Gould said that the "the government was fighting with one hand behind its back" because Bonds' former personal trainer Greg Anderson refused to testify. Prosecutors allege Anderson supplied Bonds with performance-enhancing drugs, but the judge excluded that evidence from the trial because the trainer wouldn't take the witness stand. Anderson spent the duration of the trial in prison on contempt charges and his lawyer Mark Geragos said he will never testify against Bonds.

"The government will be satisfied with the one felony conviction," said defence lawyer William Keane, "especially given the hurdle they had to overcome because of Anderson."

Keane represented former track coach Trevor Graham, who was charged with three counts of lying to BALCO investigators. After a trial in front of Illston, a jury found Graham guilty on one charge but deadlocked on two others. Illston declared a mistrial on those two charges, which prosecutors dropped in July 2008 after Graham agreed not to appeal his conviction.

Keane said he doubted the government would offer Bonds a similar deal — or that Bonds would agree to such an arrangement.

"There's been too much baggage," Keane said.

Bonds lawyer Dennis Riordan is already contesting the obstruction charge. Riordan on Wednesday asked Illston to toss out the guilty verdict on several grounds. The judge will rule on the request later, after both sides submit legal arguments.

At least eight of the 12 jurors said prosecutors failed to show that Bonds knew he was taking steroids and human growth hormone.

Prosecutors also must wrestle with jurors who pointed to credibility gaps with a trio of key government witnesses — Bonds' ex-business partner Steve Hoskins and ex-mistress Kimberly Bell, both of whom came off as somewhat bitter, and Bonds' personal shopper, Kathy Hoskins, who is Steve's sister.

Jury foreman Fred Jacob of Marin City said it would take more evidence than prosecutors presented to convict Bonds on those remaining charges.

"This cost the citizens a lot of money to bring him to court," Jacob said. "They're going to have to even do more homework than they already did."