It is an important moment in any trial and could be particularly so in this case, legal experts say. Both the prospective jurors and the public must grapple with the central fact of the legal proceedings: Bonds is not on trial over allegations of steroid use. He is charged with lying to the 2003 grand jury about alleged steroid use.
The distinction is critical, not least for the attorneys prosecuting and defending Bonds. One of the primary goals of the attorneys today is to weed out potential jurors who would be inclined to consider “roundabout justice” – convicting or acquitting Bonds for prejudices that have nothing to do with perjury.
From there, federal prosecutors face the challenging task of securing a conviction for perjury – a difficult prospect for a crime that is often not cut and dried. Perjury convictions depend upon proving a deliberate intent to lie.
“Proving intent can be challenging as someone may just claim that he was mistaken, misunderstood, or simply engaging in puffery or hyperbole,” says Doug Godfrey, a former prosecutor who is now a professor at Chicago-Kent College of Law.
What the case is about
The biggest misconception in this case, is that Bonds “is not being charged with steroid use, he is charged with lying about it,” he says.
That can lead to jurors who want to convict – or absolve – Bonds of steroid use, even though that is not what the case is about.
“People often think that because a sports figure has used performance-enhancing drugs that therefore he is guilty, but this is far from the case,” says Lou Shapiro, a criminal law attorney in Los Angeles. “They really shouldn’t confuse their emotions and anger over what Bonds did or didn’t do with what he is being charged with. Perjury is an entirely different question than, ‘Did he or did he not use [steroids].’ ”
This is “roundabout justice” – getting payback through the courts for a perceived crime that is not formally charged – and therefore the jury selection process will be particularly important, says Michelle Dempsey, a law professor at Villanova University in Pennsylvania.
Some jurors “will walk in and say to themselves, ‘No matter what others say, I want to nail this guy for his drug use,’ and others will say, ‘This guy is my hero and deserves to go free,’ ” she says.
The challenges facing the prosecution once the trial begins will center on the nature of proving perjury itself.
“The falsehood has to be clear, so the questions must be clear,” says Professor Godfrey of Chicago-Kent College of Law. “If someone answers a question with a question and the interlocutor never pins him down to an answer, the government can’t show that there is a falsehood – just an ambiguity.”
Bonds is not the only baseball star facing a federal trial on perjury charges. Pitcher Roger Clemens has been indicted on charges of lying to Congress in 2008 testimony. His trial is expected to begin this summer.
“It is noteworthy that the US government is going to trial first in the Barry Bonds rather than the Roger Clemens case,” says Kevin Johnson, dean of the University of California at Davis School of Law, who suggests race could be a factor.
Bonds has been unpopular with the public since allegations of steroid use emerged in 2003 – before he broke the all-time home run record.
“Indeed, when he was passing Babe Ruth in the record book, Bonds was the subject of consistent hate mail, including that of the racist variety,” Johnson says. “The government may believe that it is best to go to trial first with the less-popular defendant, believing that it is the one that a jury is more likely to convict. And, although it is very complicated, Barry Bonds appears to be less popular – at least in part – than Roger Clemens because he is African American."