Thursday, February 5, 2009
Judge seems set to rule for Bonds
By Mark Fainaru-Wada
SAN FRANCISCO -- On a windy, rainy day much like the one that cloaked the Bay Area five years ago when Barry Bonds testified before a grand jury and set off a surreal and unexpected odyssey, the seven-time most valuable player appeared to score a major victory in the lead-up to his trial on perjury and obstruction of justice charges.
Less than a month before Bonds is scheduled to face a jury because of the testimony he gave here in December 2003, a federal judge indicated she is inclined to exclude significant portions of the government's case against Bonds.
With prosecutors scrambling to keep from losing a stream of evidence, Judge Susan Illston repeatedly indicated during a pretrial hearing on Thursday that without the testimony of Bonds' longtime trainer, Greg Anderson, she's unlikely to let the government enter into evidence urine and blood samples, test results from those samples, drug schedule calendars and logs generated through the Bay Area Laboratory Co-Operative; nor can prosecutors use Anderson's handwritten notes against baseball's all-time home run king.
Anderson spent more than a year in prison while refusing to testify against Bonds before a grand jury. His attorney, Mark Geragos, says Anderson will refuse to testify in the trial despite having received a subpoena to appear.
The government had hoped that even without Anderson's testimony, Illston would allow the evidence based on testimony from other witnesses who said Anderson told them the samples and schedules belonged to Bonds. In documents unsealed Wednesday, the government provided a series of lab results and documents that it said showed the ballplayer tested positive for steroids three separate times in 2000 and 2001.
The government also said that former BALCO vice president James Valente would testify that the samples were Bonds'. How did Valente know? Anderson told him so.
"That's classic hearsay," Illston said, despite prosecutors' arguments that exceptions to the hearsay rule should allow them to use the evidence.
Prosecutors tried to argue that the hearsay rule should be applied, in part, based on the clear trustworthiness of the statements. For example, why would Anderson possibly lie that a urine sample he was giving to Valente was Bonds' if it were somebody else's?
Illston, though, practically scoffed at that argument, stating that the rules of evidence did not permit her to consider whether the claims were true but rather whether they were directly reflected in the evidence.
"How am I to rely on out-of-court, not sworn statements," Illston asked the prosecutors.
With Illston not persuaded by their arguments, prosecutors suddenly asked the judge to consider two additional hearsay exceptions: sections 801d2C and 801d2D of the Federal Rules of Evidence. In the first citing, the government claimed Anderson, by managing samples for Bonds, was authorized to make statements on his behalf, and those statements should be admissible even if conveyed by Anderson to Valente. In a similar vein, with the second section, the government made the case that Anderson was acting at the behest of Bonds, as his "servant," thus qualifying his statements to Valente as exceptions to the hearsay rule.
In papers filed leading up to the hearing, the government hadn't mentioned this new approach -- a shift in gears that drew ridicule from the defense team.
"We've been briefing this for a month," said one of Bonds' attorneys, Dennis Riordan, "and the government has just added this new exception to its argument. It's outrageous for them to get up there and cite a new exception after filing 100 pages without mentioning it.
"At minimum, it's incompetence."
Illston agreed to allow the government to file a new brief by Monday to make its case for this latest attempt at getting around the hearsay issue. The defense will have until next Friday to respond.
Without the evidence Illston seemed likely to exclude, all of which was collected from raids on BALCO and Anderson's home in 2003, the only physical evidence the government may have against Bonds is a positive steroid test from that same year. Prosecutors don't have a hearsay issue with that sample because it was collected as part of Major League Baseball's new drug-testing program.
However, in that instance, Bonds tested positive for THG, aka "the clear," and testosterone that appears to have originated from his use of a testosterone-based lotion known as "the cream." In his grand jury testimony, Bonds acknowledged use of those substances but said he thought they were flaxseed oil and an arthritis balm.
Illston did indicate she is likely to accept into evidence an audio recording of Anderson apparently discussing his role in providing Bonds with an undetectable steroid in 2003. According to the government, that recording was made by Steve Hoskins, Bonds' former business manager, while talking with the trainer inside the Giants' clubhouse in the spring of 2003.
The government maintains that Hoskins made the recording out of concern for Bonds' use of the drugs, that he was trying to convince Bonds' father, Bobby Bonds, of his son's drug use in hopes that Bobby would address it with Barry.
The defense showed how it will attack Hoskins' credibility, stating that far from being altruistic, he made the recording as a prelude to blackmailing his longtime friend. Bonds' attorneys suggested the ballplayer had learned Hoskins was stealing from him, and when the business manager became aware of Bonds' concerns, he prepared to deal with the split in their relationship.
"Look, let's play devil's advocate," Hoskins' attorney, Michael Cardoza, told ESPN in a phone interview after the hearing on Thursday. "Let's say that Stevie actually made the tape for that reason. The tape is the tape. It still says what it says.
"The bottom line is this: Greg is on the tape saying this stuff. It doesn't affect the validity or accuracy. It's good lawyering to make these claims, but it's a big 'so what.'"
In the summer of 2003, Bonds went to the FBI with his claims about Hoskins. Cardoza said a subsequent investigation exonerated his client, and authorities turned around and asked Hoskins about the ballplayer's steroid use.
Cardoza has said Hoskins will testify at trial to firsthand knowledge of Bonds' use of performance enhancers.
If, indeed, Illston follows through and excludes most of the steroid test results, the doping calendars and the drug ledgers from BALCO, it will put an even heavier burden on prosecution witnesses. The case always has been centered not so much on proving the underlying notion that Bonds took the substances, but more on proving that he lied when he said he never injected drugs and never knowingly took steroids.
To that end, the government will rely on witnesses like Hoskins; Bonds' ex-girlfriend Kim Bell, who will testify that Bonds told her he was taking steroids; his ex-teammate Bobby Estalella, who is expected to testify to direct knowledge of Bonds' use; and, perhaps, other witnesses unknown at this time.
ESPN investigative reporter T.J. Quinn contributed to this report. Mark Fainaru-Wada is an investigative reporter for ESPN's enterprise unit. He can be reached at email@example.com.