- Lester Munson, Legal Analyst
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In a 2-1 ruling Friday, the U.S. Court of Appeals for the Ninth Circuit ruled that government prosecutors may not use positive drug tests and other records as they try to prove that Barry Bonds was guilty of perjury when he testified before the BALCO grand jury in San Francisco in December 2002. The split decision, its rationale and a dissenting opinion raise legal questions about charges against Bonds and the future of the prosecution. Here are some of the questions and their answers:
Does this decision mean the end of the perjury case against Bonds?
No. It is a serious setback for the federal prosecutors, but it is not the end of their efforts to convict Bonds of lying to the grand jury about his use of performance-enhancing drugs. With Bonds trainer Greg Anderson steadfast in his refusal to testify against his friend and most famous client, the prosecutors offered a series of imaginative legal theories that would have allowed the jury to see positive urine and blood tests and office logs that showed the chronology of the testing. They were unable to persuade Judge Susan Illston, who was to preside over the trial. And now they have failed to persuade Judges Mary Schroeder and Stephen Reinhardt of the higher court.
But they did manage to persuade Judge Carlos Bea that their theories were valid and should allow the use of the damning evidence against Bonds in the trial. In a 36-page dissent, Bea wrote a powerful dissertation on why the drug tests and the logs can be used in a prosecution of Bonds. Relying on the dissent from Bea, a conservative Republican, the U.S. Justice Department and the Obama administration could easily decide to ask the U.S. Supreme Court to review the appeals court decision issued today. It is easy to see how Bea's arguments could be appealing to the five-justice conservative majority on the nation's high court.
Can the federal prosecutors present their case against Bonds in a trial without the positive drug tests and the BALCO logs ruled out in the appeals court opinion?
Yes. But it would be a difficult and possibly unsuccessful prosecution. Although there is little doubt of Bonds' use of PEDs, there is considerable doubt that the prosecutors can prove he lied about it without the drug tests and the logs. Instead of a document that shows conclusively that Bonds was using the drugs, the prosecutors would be asking a jury in San Francisco to make inferences and conclusions based on circumstantial evidence. With the judge and Bonds' lawyers repeatedly reminding the jurors that the government must prove guilt beyond a reasonable doubt, the prosecutors would be asking the jurors to resolve all doubts and all ambiguities in guilt. Their evidence would include records of Bonds' visits to the BALCO lab, evidence of the changes in his body, evidence from former girlfriend Kimberly Bell and baseball statistics showing that Bonds did something that no one had ever approached at his age. That would be enough evidence for most baseball fans, but it may not meet the demanding requirement of "proof beyond a reasonable doubt."
Why wouldn't the appeals court allow the positive drug tests, the office log and the other records that show Bonds' use of PEDs?
In the trial court, Judge Illston rejected the use of the tests and the logs because Anderson refused to testify to their authenticity. The government countered that it would offer testimony from James Valente, a BALCO executive, that Anderson told him they were samples of Bonds' blood and urine. Illston ruled that it was hearsay and could not be used in the trial. In the federal court system, the trial judge enjoys enormous discretion in ruling upon what evidence can be used and what evidence may not be used. Worried about opening the door to hundreds of appeals, higher courts in the federal system are reluctant to reverse a ruling in the trial court on an individual piece of evidence.
In her opinion for the two-judge majority, Judge Schroeder admitted that another trial judge looking at the same drug tests and logs "might have reached a different decision." But, Schroeder writes, the judges in the high court must be "deferential" and will reverse only when there is a "clear error in judgment." Translating the legalese, the high court says that another trial judge looking at the same evidence may have reached the opposite conclusion. It was a close call, the high court suggests, and they will not reverse a ruling made on a close call.
What's next for the prosecutors and for Bonds?
Although sources in the U.S. Attorney's office in San Francisco indicate that its prosecutors are ready to try the case with their remaining evidence, it is likely that higher authorities in the U.S. Department of Justice will give serious consideration to a request for a rehearing en banc. That would result in as many as 10 or 12 judges of the Ninth Circuit reviewing today's opinions to determine whether a majority agrees or disagrees. The Bea dissent increases the likelihood of the en banc hearing. After an en banc decision, the loser has the right to ask for a review in the U.S. Supreme Court. The prosecutors could also appeal the decision today directly to the Supreme Court.
For Bonds, this ruling means that Greg Anderson remains the most valuable person in his life. If Anderson persists in his refusal to testify against Bonds, the government will continue to struggle to prove that Bonds is guilty of perjury.
What was the basis for the conclusion in Judge Bea's dissent that the drug tests and logs were admissible evidence against Bonds?
A: For Bea, it was obvious that Anderson was working for Bonds and was acting as Bonds' agent when he took the urine and blood samples from Bonds, brought them to BALCO for testing, and then used the test results in Bonds' training. Instead of quibbling over the details of the relationship between Bonds and Anderson, Bea concluded that everything Anderson did was the result of direction and supervision from Bonds. If Bonds was in charge and directing Anderson, then the drug tests and logs could be admitted under the government's creative theories. The language and tone of Bea's dissent show his exasperation and frustration with the majority. He thought it was obvious the evidence, which is a powerful demonstration of Bonds' guilt, should be shown to the jury.
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.