Bonds prosecutors lose appeal on steroid tests[/size
A federal appeals court threw out the prosecution's strongest evidence Friday in its perjury case against home run king Barry Bonds: three positive steroid tests conducted before Bonds told a grand jury he had never knowingly taken performance-enhancing drugs.
In a 2-1 ruling, the Ninth U.S. Circuit Court of Appeals in San Francisco upheld a federal judge's decision barring the evidence because Bonds' trainer, Greg Anderson, who had arranged the tests, refused to testify about them. That left prosecutors with no valid evidence that Bonds was the source of the samples, the court said.
Bonds, 45, baseball's all-time home run leader, was indicted on 11 counts of perjury and obstruction of justice in 2008 for his December 2003 grand jury testimony. The ruling is a major defeat for the prosecution, but not necessarily a fatal one.
The three steroid tests, conducted in 2000 and 2001, appeared to be the most direct evidence that Bonds lied to the grand jury. He acknowledged on the witness stand that he knew about the results, though he testified that his sole source was Anderson and that the trainer had told him he tested negative. He denied ever seeing or hearing about the positive lab results.
Prosecutors do have other evidence they can use at trial, however, including a positive steroid test in 2003, conducted by Major League Baseball without Anderson's involvement.
Bonds might have an explanation for that test - his belief, as he told the grand jury, that Anderson had given him such innocuous substances as flaxseed oil and arthritis balm.
Potential witnesses
The prosecution can counter, however, with testimony by Bonds' former girlfriend Kimberly Bell and former Giants teammate Bobby Estalella, both of whom reportedly said Bonds had admitted using steroids.
Also available is a tape-recorded 2003 phone conversation in which Anderson told Bonds' business manager he had injected Bonds with undetectable steroids.
But the prosecution's decision to postpone the trial - originally scheduled for March 2009 - while it appealed the federal judge's ruling underscored the importance of the earlier drug tests. Dennis Riordan, a lawyer for Bonds, asserted Friday that the delay was "a concession that they could not proceed against Mr. Bonds in a jury trial without the evidence that's now been excluded."
"We hope that this puts the entire prosecution to rest," Riordan said.
The U.S. attorney's office in San Francisco declined to comment. The office could ask the full appeals court for a rehearing or seek review from the U.S. Supreme Court.
Anderson silent
Prosecutors said Anderson had received the 2000 and 2001 blood and urine samples from Bonds and had given them to the Bay Area Laboratory Co-Operative, or BALCO, which conducted the tests. But Anderson refused to testify against Bonds, his longtime friend and client, and spent a year in prison for contempt of court.
His lawyer has indicated that Anderson would remain silent if called as a prosecution witness against Bonds.
Anderson was also convicted of conspiring to distribute illegal drugs through BALCO, the target of the grand jury investigation.
Prosecutors wanted to use testimony by former BALCO Vice President James Valente, who was also convicted in the case, that Anderson had told him the samples came from Bonds. But U.S. District Judge Susan Illston ruled in February 2009 that Valente's testimony was inadmissible hearsay, a secondhand account of statements made by someone who can't be cross-examined in court.
Prosecutors' plan
Prosecutors argued in their appeal that in arranging the tests, delivering the samples and speaking to Valente, Anderson had been acting on Bonds' behalf. That would allow them to use Valente's report of what Anderson told him, because a defendant's own out-of-court statements are always admissible.
But the appeals court majority agreed with Illston that Anderson had been acting on his own.
Anderson, not Bonds, proposed taking the blood and urine samples, chose BALCO as the testing site, and apparently decided when the samples would be taken and what tests would be performed on them, Judge Mary Schroeder said in the majority opinion. As a result, she said, Anderson is the only one who can vouch for the tests' validity.
In dissent, Judge Carlos Bea said Bonds had agreed to have the samples taken and tested at BALCO, asked Anderson to tell him the results, and authorized Anderson to speak for him.
The ruling in U.S. vs. Bonds can be read at links.sfgate.com/ZJVJ.
Read more: http://www.sfgate.com/cgi-bin/article.c ... z0qhL9pbu1
This is one of those situations where common sense tells me one thing, but when you start to to look at it from the "beyond a reasonable doubt" standard of a criminal proceeding, I reach a different conclusion....
Common sense tells me that a pro athlete at Bonds' level would never allow someone to put stuff in his body without him knowing what it was, since the physical condition of his body was so intrinsically connected to his substantial livelihood...(It would be like a top rated Formula One driver allowing his pit crew to tinker with his car without knowing what they were doing.)
Common sense also tells me that a man as knowledgeable about performance enhancement as Bonds couldn't possibly have believed that the enormous increase in his muscle mass was brought about by rubbing flaxseed oil on his skin....
But that having been said, I've always felt that from a legal stand point, without the trainer turning rat, this was a very weak case.
Without Anderson flipping on Bonds, the prosecutors really ain't got much....
They seem to understand this. That's why they kept Anderson in The Joint for a year on contempt charges.
But they didn't break him. I think it's time to let this one go.
