Commentary

Will items in Bonds case clear hurdle?

Updated: August 6, 2009, 5:26 PM ET
By Lester Munson | ESPN.com

Federal authorities in San Francisco hope to use a series of three positive drug tests and several doping calendars in their prosecution of Barry Bonds on charges of perjury and obstruction of justice. U.S. District Judge Susan Illston, who will decide the issue, has indicated she is not sure the drug tests and calendars can be shown to the jury. Government agents found the tests and the calendars in a raid on BALCO, the lab that sold performance-enhancing drugs to many elite athletes. Although she did not make a final ruling, Illston said last week that she did not think prosecutors could properly authenticate the documents. The importance of the materials and the uncertainty over their use in the trial, which starts March 2, raise a number of legal questions. Here are some of the questions and their answers:

Do the prosecutors have a strong justification for including the drug tests and calendars as allowable evidence?

Yes, it seems likely. In a recently crafted, clever argument, Assistant U.S. Attorneys Matthew Parrella and Jeffrey Nedrow might have found a way to use the drug tests and calendars without any testimony from Greg Anderson, Bonds' personal trainer. If Anderson were willing to testify, the documents would be used in the trial without a ripple of controversy. But Anderson has refused to testify despite spending a year in jail as the result of his refusal. While working with Bonds, Anderson maintained the calendars and processed the urine and blood samples. In the course of his work for Bonds, Anderson told James Valente, a BALCO executive, about his work for Bonds, the drug tests and the calendars. The prosecutors now suggest that Anderson's statements to the BALCO executive were made as Bonds' agent and with Bonds' approval and authority. Valente should be allowed to tell the jury about Anderson's statements, the prosecutors argue, relying on a federal evidence rule known as 801(d)(2)(D). The rule allows the jury to hear what a person said, even if the person is not in court and cannot be tested in cross-examination.

Isn't it hearsay when one person tells the jury what another person said? Everybody knows that hearsay is prohibited. How can the prosecutors use Valente to describe what Anderson might have said?

Yes, it is hearsay. But there are numerous exceptions to the rule that prohibits hearsay in a jury trial. The "agent with authority" theory that the prosecutors have now advanced is one of those exceptions. If they can convince Judge Illston that Anderson was working for Bonds, and that his work included marking and delivering the urine and blood samples, Valente would be permitted to describe Anderson's work for Bonds. There is powerful evidence that Anderson was working for Bonds as a trainer and errand boy. The evidence comes from Bonds himself. He told the grand jury in San Francisco on Dec. 4, 2003, that Anderson was helping his nutritionist and his cook and that Anderson recommended blood and urine tests "to figure out what you're deficient in and to supplement that with food and vitamins." For the blood tests, Bonds testified, his doctor came to his house to take the blood. Then, Bonds told the grand jury, "I gave samples to Greg, [and] Greg took them to BALCO." It is difficult to imagine how Anderson could or would have done any of this if he were not Bonds' trainer and agent. If Anderson was working for Bonds, Valente can describe what Anderson said about the blood and urine samples and the drug calendars.

What will the judge do? Will she allow the government to use the tests and the calendars?

It is difficult to predict, but the prosecutors have a strong argument that the evidence passes all the tests used to measure the use of hearsay evidence. Many experts were surprised when the judge expressed her doubt about the tests and the calendars. They thought that the various exceptions to the rule against hearsay would allow the prosecutors to succeed even without Anderson's testimony. The rule clearly provides for the use of "a statement by a party's [Bonds'] agent … within the scope of the employment [and] made during the existence of the relationship." There appears to be no doubt that Anderson was working for Bonds and that his duties included the handling of blood and urine specimens and the maintenance of the calendars.

How important are the drug tests and the calendars?

It's more important for Bonds to keep them away from the jury than it is for the government to submit them to the jury. Bonds and his legal team are relying heavily on Anderson's refusal to testify and the hearsay issues that result from his refusal. They hope to prevent the jury from viewing potentially highly incriminating evidence. If the judge ruled for Bonds and refused to allow the evidence, it would be a major victory for Bonds but merely a modest setback for the government. Even without the tests and the calendars, the government has what appears to be a powerful case against Bonds. It includes testimony from a former girlfriend, Kimberly Bell, and a former personal manager, Steve Hoskins. Both are expected to tell the jury of Bonds' use of steroids and what the drugs did to him and for him.

If the judge allows the jury to see the drug tests and calendars, how will Bonds answer?

Bonds would then rely on his claim that he did not know he was using any performance-enhancing drugs. In public statements and in his testimony before the grand jury, he has insisted that he did not knowingly use any PEDs and that he did only what his trainer suggested that he do. He has claimed that an undetectable steroid known as "the cream" was described to him as flaxseed oil. With his ignorance as his only answer to the perjury charge, Bonds might be forced to testify, seeking to persuade the jurors that he knew nothing and relied on Anderson. It would leave Bonds open to a bruising cross-examination and allow prosecutors to ask why Bonds had not presented Anderson as a witness to support his claim. Anderson's absence could then be turned against Bonds in a final argument to the jury in which prosecutors would ask why Bonds did not offer Anderson as a witness to support his claim of ignorance. That argument could lead to his conviction.

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.