Both sides fielded difficult questions Thursday from the three-judge panel of the 9th U.S. Circuit Court of Appeals. In a case stemming from Bonds' grand jury testimony in December 2003, the home run king pleaded not guilty to 10 counts of making false statements and one count obstruction of justice count. He is accused of lying when he testified that he never knowingly used performance enhancing drugs.
U.S. Circuit Judge Stephen R. Reinhardt appeared skeptical of the government's position while Judge Carlos T. Bea appeared to be searching for a legally sound way to have the evidence admitted. Judge Mary M. Schroeder sat in the middle -- literally and figuratively -- of the panel, asking few questions but appearing to lean toward Bonds' side.
At issue is whether evidence directly tied to Bonds' personal trainer, Greg Anderson, could be shown to the jury that will hear Bonds' case.
U.S. District Judge Susan Illston in February barred prosecutors from presenting the evidence, including urine samples the government alleges tested positive for steroids at the Bay Area Laboratory Co-Operative. The samples were purportedly delivered by Anderson to BALCO, the center of a sports doping ring. Anderson pleaded guilty in 2005 to illegal steroids distribution.
Illston said Anderson would need to testify about his role as delivery man to conclusively prove the samples belonged to Bonds. But Anderson told the judge he would rather go to jail on contempt of court charges rather than testify at Bonds' trial. The trial, which has been scheduled to begin March 2, was delayed indefinitely when the government appealed Illston's ruling.
Assistant U.S. Attorney Barbara J. Valliere, chief of the appellate section in San Francisco, argued Thursday that the government could prove the urine samples belonged to Bonds through the testimony of James Valente, a former BALCO executive. Valente is expected to testify that Anderson delivered the samples to him and identified them as belonging to Bonds.
Such second-hand accounts often are inadmissible as "hearsay" in court, which is why Illston ordered the evidence suppressed.
But there are several exceptions to the "hearsay rule," including the government's argument that Anderson was an "agent" or employee of Bonds authorized to speak on the slugger's behalf. If the appeals court accepts that rationale, the government would be able to present the urine samples and other evidence tied to Anderson through Valente's testimony.
"What evidence is there that the samples weren't altered?" Schroeder asked the prosecutor, who replied that there was an established "chain of custody" for the samples once they were at the lab.
"But you don't know what happened" before the samples were dropped off, Schroeder said.
Bonds' lawyer, Dennis Riordan, picked up on that theme by arguing that drug testing generally is plagued by "lies, forgeries and misstatements." Therefore, he argued, that the evidence can't be used unless everyone who handled the samples testifies.
He called the excluded samples "the most critical evidence in the government's case."
Legal analysts say the government's case would take a significant blow, but not a fatal one, if the lower court's ruling is allowed to stand. Prosecutors still have a 2003 urine sample tested by a laboratory not affiliated with BALCO they say belongs to Bonds and tested positive for steroids. Bonds' physical changes during his playing career, including apparent head and foot growth, also is expected to be used to support the government's case that Bonds knowingly used performance-enhancing drugs.
Once the appeals court rules, the case will be sent back to Illston, who then will reschedule Bonds' trial.
Bea dissented last month when the 9th Circuit held in a 9-2 decision that prosecutors illegally seized the drug records and samples of more than 100 major leaguers in 2004. Solicitor General Elena Kagan is considering whether to ask the Supreme Court to review that decision.