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Friday, February 27, 2009
Updated: February 28, 7:39 PM ET
Appeal is smart move in Bonds trial

By Lester Munson
ESPN.com

Instead of going forward with a perjury and obstruction of justice trial against Barry Bonds on Monday, federal prosecutors in San Francisco decided Friday to appeal rulings that excluded much of their evidence. Last week, U.S. District Judge Susan Illston ruled that the prosecutors would not be permitted to use three positive drug tests, drug calendars, drug cycle logs and invoices in support of their charge that Bonds lied to a grand jury about his use of steroids. The prosecutors' action raises a number of legal questions. Here are some of the questions and their answers:

After six years of investigation and preparation for the trial, why would the prosecutors delay everything with an appeal?

Judge Illston's rulings were devastating for the prosecutors. Proof of perjury is always difficult, and Illston's rulings left the prosecutors with serious problems. If they went to trial with the evidence that remained, they would have been in a precarious position. Bonds easily could have walked away with a not-guilty verdict at the end of the trial. To preserve their chances of convicting Bonds, the prosecutors decided to test Illston's rulings in a higher court, hoping the judges of the U.S. Court of Appeals for the Ninth Circuit will overrule Illston and allow them to use all of the evidence they have gathered in their massive investigation.

What are the prosecutors' chances for success on appeal?

Barry Bonds
Barry Bonds isn't off the hook, despite the delay in his trial.

Their chances are good. Many legal experts were surprised by Illston's rulings. The prosecutors offered clever and creative arguments for the use of their evidence. The major obstacle, of course, was personal trainer Greg Anderson's refusal to testify against Bonds. If he had agreed to testify, the use of the evidence would have been simple and routine. But without Anderson's testimony, the prosecution had problems in meeting the requirements of the rules that govern evidence in federal courts. Relying on a series of rules that allow evidence to be presented even though it is hearsay, the prosecutors seemed to have met the legal requirement for use of the evidence. Illston, however, disagreed. Was she correct? The higher court will decide, but it looks good for the prosecutors.

Was this a surprise?

No. Several months ago, when the agents and prosecutors realized that Anderson would never testify for them, they embarked on a process that led to this appeal. They could have waited until the trial was underway to learn whether they would succeed in using the drug tests and the other evidence. But they knew going in that the evidence would present problems. Instead of waiting, they obtained an agreement from Bonds' legal team to allow Judge Illston to examine the evidence before the trial. In retrospect, it was a smart move by the government. The federal prosecutors are permitted to appeal an adverse ruling on matters such as the drug tests if the ruling is made before the trial. In the patois of the courthouse, the procedure is known as a "3731." If they had waited until the trial was underway to try to present the evidence in question, they would have lost their chance for an appeal under the rules of double jeopardy. Double jeopardy is not a game. It is a provision of the U.S. Constitution that guarantees everyone that they can be accused of a crime once and only once. If the prosecutors had lost in the trial, they would not be given a second chance. Because they anticipated the problems caused by Anderson's refusal to testify, the prosecutors are now able to pursue this appeal in a final attempt to preserve their case against Bonds.

Is this just a delaying tactic by the federal prosecutors? Aren't they merely prolonging their campaign against Bonds?

Some observers believe the appeal is an attempt at delay and a sign of weakness from the prosecutors. Professor Peter Keane of Golden Gate University Law School calls the appeal "stupid" and "foolish" and suggests the government should be ready for trial. (See story here.) But the delay is not the result of the government's appeal or any other government actions. The delays are the direct result of Anderson's stubborn refusal to tell what he knows about Bonds and his use of steroids. If Anderson had been willing to tell the grand jury and the nation what he knew about Bonds, the entire process would have ended two or three years ago. Bonds' lawyers claim that the appeal is prolonging a campaign against an innocent man. If Bonds is innocent, why won't Anderson tell what he knows about Bonds and BALCO? The government's appeal is based on the prosecutors' faith in the integrity of their charges of perjury and obstruction of justice. They are convinced that Bonds is guilty of a serious crime. It is their duty to gather and to present proof of the crime. To prove the crime, they created a strategy for circumventing Anderson's refusal to tell the truth; they argued it before Judge Illston; and now they are testing the accuracy of her rulings. Who is hurt by the time consumed in the appeal? If Bonds is doing anything to help and to support Anderson, Bonds now knows that he will be doing it for at least as long as the appeal continues.

Is this a significant development in the BALCO saga?

Yes. The decision to appeal shows that the administration of President Barack Obama will continue with the steroids enforcement policy that began under President George W. Bush. The prosecutors in San Francisco could not have filed this appeal without the approval of Eric Holder, the new attorney general, and Elena Kagan, the new solicitor general; so the decision to file the appeal was made at the highest level. Although many progressives have criticized the BALCO probe, it is now clear that the Obama administration will pursue steroids issues. The decision to appeal is a clear signal that federal steroids investigations are far from over.

Lester Munson, a Chicago lawyer and journalist who reports on investigative and legal issues in the sports industry, is a senior writer for ESPN.com.