Sports In the Courts Blog : New York Attorneys & Lawyers Specializing in Sports Law & Legal Analysis

Retrials are not particularly great for the prosecution.

Remember in a criminal case, the prosecution has the burden of proving all the elements of each and every charged crime beyond a reasonable doubt. This is highest burden in our law at trial. One of the tools that a prosecutor has is keeping his trial strategy secret (as part of attorney work product) until the opening statement is delivered. During a prosecutor's opening statement, the defendant and his counsel hear, for the first time, how the government's proof will be introduced, through witnesses and other evidence, against a defendant. Yes, the defense attorney may already have strong hunches about what the evidence will be but an opening is the prosecutor's road-map of how the government intends to obtain a guilty verdict against a criminal defendant, like Roger Clemens.

Here, however, Clemens' attorneys have already heard the prosecutor's first opening statement in the original trial. This means that the government's hand has been officially "tipped."

It may be a small advantage but knowing the precise evidentiary road-map against your client is good fo the defense. For now, Clemens' legal team has a quick strike one on the prosecution.  

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Check out Chris Fusco's analysis on MLB Network.

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Breaking News:  

Former Red Sox Slugger Manny Ramirez was arrested tonight on charges of domestic battery.  Ramirez reportedly was involved in an altercation with his wife Juliana Ramirez some time before 7 p.m. Monday night.  According to the police report, Ramirez slapped his wife in the face causing her to hit her head off of the headboard of their bed.  Ramirez denied striking his wife, claiming he grabbed her by the shoulders and shrugged her, which was his take on her hitting her head.  

Ramirez has been somewhat quiet since his steroid driven retirement from Major League Baseball in April.  

Roid Rage?  Who knows.  The one thing everyone can agree on is Manny will always be unpredictable in his actions.

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Clemens and his attorneys suffered another loss, as the United States Supreme Court declined to hear his appeal of the dismissal of his defamation lawsuit against Brian McNamee.  The Fifth Circuit Court of Appeals had dismissed all claims against McNamee, because the allegedly defamatory statements were made in New York, and Texas courts had no jurisdiction over McNamee in connection with those alleged statements. The United States Supreme Court simply declined to hear the matter, effectively ending Clemens' case against McNamee. Clemens could have filed suit in New York, but the statute of limitations would now preclude him from doing so.

McNamee does have a defamation case pending against Clemens in a New York federal court, although some (but not all) of McNamee's claims were dismissed in February. 

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St. Louis Rams Linebacker David Vobora, who was suspended in 2009 for four games after testing positive for methyltestosterone, a banned substance, received some measure of vindication after obtaining a $5.4 million judgment against a Florida nutrition company, Anti-Steroid Program, LLC d/b/a S.W.A.T.S.  A Judge found that "S.W.A.T.S" misrepresented its "Ultimate Sports Spray." S.W.A.T.S. was ordered to pay $2 million for damage to Vobora's reputation and emotional distress, $3.04 million in lost income, and the remainder in lost endorsements and performance bonuses. The court may also award attorneys' fees.

However, the majority of news reports fail to reveal that this was a judgment entered by default against a company that likely has no assets. S.W.A.T.S. did initially hire counsel to answer Vobora's Complaint. On January 13, 2011, the parties notified the court that a tentative settlement agreement had been reached. However, in February, counsel for S.W.A.T.S. moved to withdraw, advising that S.W.A.T.S. had terminated its relationship with counsel. The court initially denied that motion, but later permitted the withdrawal, after the former President of the company advised the court that it had filed a voluntary dissolution in the State of Florida. Thus, Vobora's claim for damages went uncontested, and the Judge awarded the above damages by default. It is also doubtful that Vobora will ever collect anything from S.W.A.T.S.

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I have spent countless hours trying to figure out what issues deliberating jurors are focused on or maybe stuck on by their notes to the trial judge. Sometimes I have been right and sometimes I have been shocked. The truth is trying to determine what 12 people in a small room are thinking about and discussing is really a fool's errand. So once, again, here I go.

On Friday, the jury asked for a read-back of the testimony of prosecution witness, Kathy Hoskins (Bonds' personal shopper) on the issue of whether she saw Greg Anderson inject Bonds in the belly button with a PED. Kathy Hoskins is the sister of another prosecution witness and former Bonds friend, Steve Hoskins, By most accounts, Steve Hoskins got pretty beat up on cross-exam and may have shown a bias against Bonds and a desire to make money off this case.

While its a guess, you have to wonder if the jury may believe Kathy Hoskins and not her brother. If that is the case, Kathy's testimony combined with the other prosecution evidence is enough evidence to obtain a conviction of Bonds.

But, then again, only the jurors know.

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One of the hallmarks of criminal law is that the prosecution must prove its case against a defendant beyond a reasonable doubt. Criminal juries seem to understand (without penalizing the defendant) that, under our Constitution, a defendant doesn’t have to testify or put on any case because the prosecution has the burden of proof.

As a former prosecutor, I can say that in majority of cases I have been involved with the defendant will not testify and will not call any witnesses. There is a very good reason for this strategy.

If Bonds had testified and the jury thought he lied to them, he’s toast. Moreover, if the judge believed the Bonds lied (or truth shaded) in court, she might “bang” him on sentencing and max him out. When the defense elects not to put on a case, this suggests that they are confident of an acquittal.

If the defense team believes that they have damaged the prosecution’s case enough through cross-examination AND now feels that the prosecution cannot meet it's burden of proof, Bonds’ lawyer should not put on a case (which was their choice).  In closing arguments, Bonds lawyers must aggressively attack and dismantle the government’s case, like Bonds’ life depended on it - because it does.

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When I was a young prosecutor, I was told never to over-try a criminal case. Sometimes less is more and overkill can lead to a shaky witness getting crushed on cross-exam.

Last week, the prosecution decided to shorten it's case against Bonds by more than a 7 days. There can be several reasons for this decision. While courtroom observers can disagree whether the case against Bonds is going well, the prosecution must believe their case can't get any better. This doesn't mean the government is overconfident, it only could mean that they are less comfortable with their other witnesses (who could blow up).

The other benefit of shortening the case for the prosecution is that it puts immediate pressure on the defense. Bonds' attorneys will have much less time to prepare their case and will be forced to make difficult decisions on how much of a defense presentation to give the jury.

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On Wednesday, Bonds’ childhood friend Steve Hoskins testified that he observed Bonds and trainer Greg Anderson emerge from a bedroom, with Anderson carrying needles and a syringe. Hoskins also testified about a conversation he recorded between himself and Anderson in 2002, and informed the jurors that Bonds asked him to research performance enhancing drugs. Defense counsel grilled Hoskins, and effectively elicited testimony that Hoskins had been charged with forgery and stealing money from Bonds, suggesting that Hoskins’ testimony is payback. Additionally, the jurors heard that Hoskins had paid $10,000 in legal fees for Bonds’ ex-girlfriend, Kimberly Bell, who will also testify against Bonds.

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As the case proceeds toward trial, Bonds' lawyers filed a motion to exclude other athletes from testifying, including Jason Giambi, Jeremy Giambi, Bobby Estallela, and Benito Santiago. These players are expected to testify that Greg Anderson provided them with performance enhancing drugs, along with instructions, and monitored the players' use of the drugs. The Government intends to introduce this evidence to show that these players knew Anderson was providing them with steroids, which implies that Bonds also knew, as he was an Anderson client as well. Bonds, on the other hand, claims that the evidence will impermissibly create the inference that, since Anderson had a propensity to provide athletes with steroids, he must have done so with Bonds. That is not the issue here, as Bonds already admitted he consumed items given to him by Anderson. However, the real issue in this trial is whether Bonds lied when he testified he had no knowledge that the items contained steroids. 

Judge Llston ruled in the Government's favor, finding the evidence relevant and not overly prejudicial to Bonds. Clearly still irked at Anderson's continued refusal to testify and willingness to remain in jail, the Judge specifically mentioned that Anderson's absence will preclude the jury from hearing direct evidence as to what substances Anderson provided to Bonds, what he told Bonds about the substances, and how they were distributed. To the extent the testimony could be considered prejudicial to Bonds, Judge Ilston will consider any "limiting instructions" proposed by Bonds, which are instructions given to the jurors, directing them to consider evidence for a specific purpose and for that purpose only. 

This has to be considered a serious problem for Bonds' defense. The jurors will hear testimony from several players (including players that were on the same team as Bonds) describing the drugs Anderson provided along with details as to how to use the drugs. It will be difficult for Bonds' team to convince the jurors that Bonds was a different case, and that he had no idea what he was putting in his body.

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This week federal prosecutors were forced to reduce the amount of perjury-related charges against former San Francisco Giant, Barry Bonds, from 11 counts to 5 counts. With a March 2011 trial date looming, the prosecution no longer could hold out hope the Bonds' foremer trainer, Greg Anderson, would brake his silence and testify for the government.

Greg Anderson has certainly been consistent. Even in the face of jail time (for contempt), Anderson has refused to assist the prosecution. Bonds had been indicted for lying before the grand jury on conduct related to Anderson. Bonds told the grand jury that he denied received steroids, known as the "clear" and the "cream", from Anderson. In a previous court ruling, the judge held that Bonds positive steroids tests were inadmissible as these results were improperly obtained by the government.

Without the evidence of Bonds' positive drug tests, the only remain proof of his alleged lies would need to come from Anderson's testimony. However, Anderson has decided that he is more important than the legal system. If Anderson cooperated he likely would not face any criminal charges so his Fifth Amendment Rights would not be at risk. The only logical conclusion that can be reached is that Anderson's silence is bought and paid for by someone.

By holding on to his misplaced sense of "loyalty", Anderson will deprive the jury of hearing the facts and evidence that he only can provide. This type of conduct is an offense of our system of justice and is obstructive of a valid criminal prosecution.

As a result, Anderson and his silence should spend as a much time as possible in jail.
 

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With the Barry Bonds perjury trial set to begin in March, Bonds’ attorneys and the government are sparring over what evidence the jury will be permitted to hear.

Last June, a United States Appeals Court ruled that the government could not use various evidentiary items - including urine test results - because trainer Greg Anderson, who brought the samples to BALCO for testing, refuses to testify against Bonds. Therefore, the results could not be properly authenticated.  Without Anderson (and Bonds, since he does not have to testify against himself), it is impossible to prove that the urine samples actually came from Bonds. Since that ruling, the prosecution has rebuilt its case based upon different evidence.

To be “clear,” Bonds is not being prosecuted for using steroids. Rather, in 2003 when BALCO was being investigated, Bonds gave testimony to a grand jury, and denied knowingly taking steroids. In 2004, Anderson pled guilty for illegal steroid distribution, and admitted to providing athletes with performance enhancing drugs. Bonds is now being prosecuted for perjury in connection with his grand jury testimony.

The government intends to call other professional athletes to testify regarding their respective relationships with Anderson, including Jason Giambi. Many of these athletes will testify that Anderson supplied them with drugs, and actually told them that the substances were illegal steroids. The government’s witness list also includes Kimberly Bell, Bonds’ former girlfriend, who is expected to testify that Bonds admitted taking steroids prior to the 2000 season, and will also testify regarding her observations as to “changes” in Bonds’ body. Bobby Estalella, a former SF Giant, is also expected to testify that Bonds admitted using performance enhancing drugs.

Bonds admitted in his grand jury testimony that he took items given to him by Anderson, including vitamins, protein shakes, and a cream. However, Bonds claimed he had no knowledge that these items contained steroids. The government must prove beyond a reasonable doubt that Bonds knew his statements were false, and that he knew his testimony was capable of influencing the decision of the grand jury whether or not to indict Anderson. It will be interesting to monitor the government’s case, and what evidence it is permitted to introduce. Anderson will also be given another chance to testify against Bonds before trial begins.

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Until now the Barry Bonds defense team has been doing pretty well. They have successfully convinced the court to exclude certain incriminating documents from the use of prosecutors against Bonds. But most importantly, Bonds' former trainer, Greg Anderson, remains uncooperative with the prosecution and subject to incarceration for his silence.

Most observers believe that Anderson is the lynch-pin to the case against Bonds. Anderson may be able to testify that he was the one who supplied steroids to Bonds and that there was a connection to BALCO.

Now the prosecution may have another way to connect Bonds to steroids and BALCO. Judge Susan Illston has ruled that the prosecution may call other "juicing" players, including Jason and Jeremy Giambi, to testify about how they got steroids and the role BALCO and Anderson played in their alleged cheating. Bonds' attorneys believe all this shows is improper "guilt by association."

However, the prosecution is permitted to show that a criminal defendant, like Bonds, participated in a criminal "common scheme or plan."

As of now, the Feds will parade at least 5 players who can prove a common plan to cheat by using steriods and Bonds' proximity to it.

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With the San Francisco Giants leading the World Series 2-0, rumors have begun to fly regarding one of the members of their team and his failure to make the post season roster.  According to San Francisco Giants manager Bruce Bochy, Jose Guillen has been excluded from the post season roster due to neck injuries.  On the other hand, speculation has swirled about the Giants holding Guillen from the post season roster due to an ongoing investigation linking Guillen to HGH shipments.  

The whole story is fairly ironic due to the fact that the Giants were the team that was plagued by performance enhancing drug rumors, accusations, and the dark cloud of Barry Bonds.  With the team on the brink of capturing its first World Series victory since 1954, performance enhancing drugs can stealing the spotlight.  According to reports, federal authorities informed Major League Baseball there is an ongoing investigation involving Jose Guillen.  Major League Baseball has also opened an investigation regarding Guillen and the shipments.  Look for more details to emerge in the coming days. Guillen, a career .270 hitter with 214 HRS and 887 RBI's, has had an injury plagued career and anger management issues.  At this point it is pure speculation, but so far in the age of performance enhancing drugs and HGH in baseball, where there is smoke, there is fire.

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Earlier this afternoon a grand jury returned an indictment against Roger Clemens for lying to Congress during his disastrous testimony. It appears that Clemens may face 15 to 21 months and additional fines if convicted. We expect Clemens through his lawyers will enter a plea of not guilty to the charges.

During his testimony before Congress, Clemens seemed like an out of control client who didn't or wouldn't listen to his lawyers. Unfortunately for Clemens, his former trainer (Brian McNamee) told a more believable story and brought some physical evidence to show Clemens' steroid use.

Maybe he will listen now and find a way not to misremember the truth. We will have much more on this case and we will follow it closely.

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On Friday, the US Appeals Court ruled that the prosecutors in the Barry Bonds test cannot use certain evidence, including calendars showing the cycling on and off of steroids, because then documents were created by Bond's trainer Greg Anderson. Here's the problem, Anderson won't testify against Bonds. In fact, Anderson has spend much of the last 5 years in jail for failing to give evidence against Bonds. Anderson has taken loyalty to a new high or low, depending on how you view it.

Unfortunately, the Court found that Anderson is only person who can "authenticate" the calendars. At a trial, documents must be properly authenticated before they can be admitted to evidence and shown to a jury. Authentication is a fancy way of a having a person (usually who created the document) vouch for the correctness of a piece of evidence and tell the court it is accurate and not changed or doctored. Since Anderson won't authenticate the documents against Bonds, they can't go into to evidence.

The government must now scramble to get other evidence together against Bonds. The prosecution has stated that it intends to try to call Anderson at trial, if the pattern holds, Anderson will not testify and go back to jail. The Bonds' jury will then decide if he gets any company.
 

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After losing a lopsided decision at the beginning of the month, "Sugar" Shane Mosley might be in for another brutal defeat.  

The most popular defamation allegations in the boxing world have surrounded Manny "Pacman" Pacquiao and Floyd "Money" Mayweather, but Mosley has also quietly orchestrated his own defamation lawsuit.  

Mosley's case has dated back to 2008;  Mosley has continued to seek his "purse" from BALCO President Victor Conte.  Initially, Mosley sued Conte for statements Conte made about Mosley not knowing what he was putting into his body. Conte said Mosley "knew precisely what (he was) using".  This excuse has been used many times before by athletes.  (See Diego Maradona and Rafael Palmero.)  But how can you be unsure what you are putting into your body?  The body that makes you millions of dollars, the body that you rely on to keep you in the public spotlight.  I will never understand it!  

Conte's defense attempted to derail the lawsuit with an initial summary judgment motion which was denied by the New York Supreme Court Justice Louis B. York.  When looking closer at Judge York's ruling, there is more to the ruling than a simple denial.  In the decision, York avoided a ruling on the merits, and said that the defendant could renew it after discovery was completed.  By doing so, Justice York left the door open for Conte's defense to file a second summary judgement motion, which may be on the way.

As time has past, Mosley has pushed to a $12 million defamation claim.  Mosley's representation insists his client has lost millions of dollars because of Conte's defamatory words.  But has he?  The summary judgment motion, in the works, might pack a 1-2 punch that knocks this case out of the New York State Supreme Court.

Part 1:  Mosley's reputation and income has not been effected by the claims made by the defendant. Mosley just made at least $6.7 million dollars on his fight earlier this month against Mayweather.  We all know boxing is not exactly in its golden years.  With the emergence of MMA and the lack of big names in the Heavy Weight Division, boxing can not compete with the other major sports.  But somehow, someway Mr. Mosley has earned $6.7 million dollars regardless of Conte's statements.  With the help of HBO's hit series 24/7: Mayweather vs. Mosley, "Sugar" Shane was able to put the public's perception of him behind them and allow the fight to earn over $78 million.  Did Conte's statements really effect the amount Mosley has made?

Part 2:  Conte claims he is telling the "truth".  Truth is a complete defense to defamation.  If you tell the truth, you can not be liable for defaming someone.  In this case, Mosley, a public figure, is not only responsible for proving Conte is lying about the statements, but Mosley must prove Conte acted maliciously or with reckless disregard.  Proving this is going to be tough, especially when recent YouTube videos of a deposition Mosley gave last October show Mosley admitting he must have known what he was taking erythropoietin (EPO).

What should Mosley's legal corner tell him?  Throw in the towel Shane!  You just made millions on a fight and have promoted yourself back into the spotlight for LOSING!  Don't run the risk of having the public remember you were a cheater!

Stay tuned........

Thanks BPS 

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Today, Dr. Anthony Galea, who has treated major athletes such as Tiger Woods and Alex Rodriguez, was charged with unlawfully treating athletes with illegal drugs including Human Growth Hormone (“HGH”). Dr. Galea, a Canadian citizen, was charged in Federal Court in Buffalo, NY.

The documents filed with the court allege that Galea illegally gave 2 HGH kits to at least one NFL player. The Feds also may have other NFL players that are witnesses to Galea’s alleged HGH distribution. Galea has not entered a plea to these charges as of yet.

We now know that the Feds believe they can connect Galea to HGH use in the NFL. If true, this another blow to the NFL and its apparent lack of enforcement to restrict HGH. The NFL already was rocked when Defensive Rookie of the Year, Brian Cushing, tested posted positive for steroids. This news of HGH allegations in the NFL doesn’t help at all.

The case may shed light on the “pass” the NFL has received on steroid and HGH use by its players while baseball has gotten the majority of the scrutiny. We also will be watching to see if Dr. Galea can be “flipped” to give up other star athletes that may have also received illegal drugs.

We will update once Galea’s lawyers begin to comment on the charges.
 

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This is what we will be following on this week on the blog:

• Lawrence Taylor Rape Charges: Beware of erroneous reports that the defense has a “witness” to prove LT’s innocence. The purported friend of the girl prostitute, who claims that her friend (the prostitute) told her that she didn’t have sex with LT, is a witness to nothing. She is not a witness to whatever happened or didn’t happen in that hotel room. She is only a party to a conversation that may have occurred after the alleged crime was completed. This is credibility of the witness’s case.

• Saints Lawsuit: The Saints invoked the arbitration clause of the employment contract with their employee and former director Geoffrey Santini, this act takes the case from the public courtroom and to private and confidential arbitration. Santini is alleging that Saints’ coaches, including head coach Sean Payton misused and illegal removed Vicodin. You have to wonder why the Saints did not do this before the lawsuit was filed. Anyway, the DEA investigation will continue. We will be watching.

• Brian Cushing: The Texans AP Defensive Rookie of the Year is just another steroid using cheater and liar about his positive test. Check out Ralph Vacchiano’s very fine piece in the NY Daily News. How any journalist could vote for him again for Defense Rookie of Year? All this shows is that cheating in professional sports by using steroids is becoming more and more accepted.

• Lebron James: This may not have much to do with the courts but if Lebron leaves the Cavs, do you think it may have something to do with the scandal of a fellow teammate having an affair with his mother, Gloria James? That has to violate some law of the clubhouse, doesn’t it?

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Courtesy of MSG Game On 

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 Courtesy of MSG Game On

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