A divided federal appellate court today threw out much of the “mountain of evidence” that prosecutors say they accumulated to prove that former San Francisco Giants star Barry Bonds lied under oath about his steroid use.
In a two-to-one ruling, a panel of the Ninth Circuit Court of Appeals said that a trial judge correctly barred three positive steroid tests, doping calendars and other evidence from the upcoming perjury trial of baseball’s Home Run King.
The government said the evidence proved that Bonds’ used performance-enhancing drugs and then lied about it in 2003 in testimony before the grand jury that investigated the BALCO steroids case.
But the appeals court said that Judge Susan Illston ruled correctly that the evidence amounts to inadmissible “hearsay, unless the man who allegedly kept the calendars and arranged the private steroid tests — trainer Greg Anderson — agrees to testify about the documents.
Anderson, who pleaded guilty in the BALCO steroid conspiracy case, already has served a year in prison for contempt of court rather than testify against Bonds, his longtime client and friend. He has said he will go back to jail rather than testify in Bonds' trial.
The ruling was written by Justice Mary Schneider and joined by Justice Stephen Reinhardt. A third jurist, Carlos Bea, wrote a blistering dissent, saying the majority was endorsing “egregious” legal mistakes in the trial judge’s ruling.
The government could appeal the ruling to another panel of the Ninth Circuit. An appeal would will take months to resolve, legal experts said. If the government decides to proceed to trial, the case might not go to a jury until next year, a decade after some of the events at issue.
Us Attorney Joseph Russoniello had no immediate comment.
The ruling put some of the government’s most significant evidence off-limits against Bonds. No longer available are:
- Reports on private steroid tests from 2000 and 2001, allegedly arranged by Anderson via the Bay Area Laboratory Cooperative in Burlingame. The government says they show Bonds was using the injectable steroids methenelone and nandrolone.
- “Handwritten notes, calendars and drug ledgers” seized in raids on BALCO and on Anderson’s Burlingame condominium in 2003. The government says the trainer created the documents to track Bonds’ regimen of banned drugs.
With Anderson refusing to talk, prosecutors had hoped to tie Bonds to the drug tests through the testimony of former BALCO Vice President James Valente. But Valente said he knew the tests because Anderson told him so. That’s hearsay, the court ruled — second-hand testimony that is usually impermissible.
Bonds, 44, holder of baseball's all-time home run records, is charged with 11 counts of perjury and obstruction of justice, all in connection with testimony in 2003 in which he told the grand jury investigating the BALCO steroids scandal that Anderson had given him only flax seed oil and arthritis balm, not steroids.
The ruling was a victory for Bonds’ eight-lawyer defense team, and especially lead appellate attorney Dennis Riordan. Despite the adverse ruling, the government still has substantial evidence of Bonds’ steroid use to present to a jury.
In filings last year, prosecutors said that former Giants’ catcher Bobby Estalella, former Bonds business manager Steve Hoskins and former girlfriend Kim Bell all would testify that Bonds admitted his steroid use to them.
Kathy Hoskins, who was Bonds’ personal assistant, will tell the jury that she saw Anderson injecting Bonds, the government has said. Prosecutors said they would present evidence a urine sample collected from Bonds in 2003 for a Major League Baseball drug test.
Bonds was found to be free of steroids on the MLB test. But on a retest, government scientists founds he had been using the BALCO undetectable steroid “the clear,” along with a female fertility drug, Clomid. That drug test can be linked to Bonds without hearsay testimony, the judge said.
Bonds last played baseball in 2007. He hasn't formally retired from the game.