Commentary

Judge's call on Bonds documents is key

Updated: February 5, 2009, 8:54 AM ET
By Mark Fainaru-Wada, Lester Munson and T.J. Quinn | ESPN

SAN FRANCISCO -- The volumes of evidence unsealed in the Barry Bonds perjury case Wednesday are enough to put doubt in the hearts of even his strongest supporters.

But beyond the sheer amount of the evidence made public -- nearly 300 pages -- the government's exhibits also reveal its case's greatest vulnerability: If U.S. District Judge Susan Illston agrees with the defense that much of the documentary evidence is inadmissible hearsay, a key part of the government's case will be decimated.

As long as Greg Anderson, Bonds' longtime friend and trainer, is willing to choose prison again over testifying against his friend, the government must rely largely on other witnesses to testify about conversations with Anderson. Bonds' defense team argues essentially that the government has no case without Anderson and that those witnesses should not be allowed to testify.

Without Anderson's testimony, government prosecutors face serious obstacles on the admissibility of drug tests, drug calendars and other evidence.

Barry Bonds
AP Photo/Paul SakumaAs Barry Bonds walked into a federal building to appear before a grand jury in San Francisco in December 2003, he was moments away from the start of his legal trouble.
"If Anderson does not testify for the government," defense lawyers wrote, "the truth of any statement he may (or may not) have made out of court cannot be so tested."

The defense also argues that most of the blood and urine tests that the government says reveal Bonds' steroid use lack any reliable chain of custody, particularly without Anderson to testify that it was he who handed off the samples to the Bay Area Laboratory Co-Operative for testing.

The government, meanwhile, suggests it has ample legal room to establish the legitimacy and origins of the tests. Beyond that, the prosecution believes that several exceptions to the laws limiting hearsay should allow them to enter evidence related to Anderson.

It's also true that the disputed evidence represents only a part of the government's case against Bonds.

Illston is set to hear arguments Thursday on the defense's motion to suppress evidence. It isn't clear when she will rule on the motion. The case is scheduled to go to trial March 2, and the government's charge will be to prove, among other things, that Bonds lied when he said he never knowingly took steroids.

The defense's hearsay argument refers to conversations Anderson had with BALCO vice president James Valente, who was BALCO's primary contact with the personal trainer and who, in a 2003 statement to federal investigators, said Bonds had received steroids known as "the cream" and "the clear."

Parts of Valente's grand jury testimony in the Bonds investigation was released for the first time Wednesday, and it reveals that he is expected to testify at trial about conversations with Anderson that allegedly will implicate Bonds.

Valente said that Anderson brought samples of Bonds' urine to BALCO for testing, and he testified that on one occasion, Anderson asked him to put his own name on a sample even though it was Bonds'.

Valente: "He said, 'Do me a favor. Can you switch my name for Barry's?' and I said, 'if that's what you want me to do,' Valente testified.

Prosecutor: "… was there a concern stated by Mr. Anderson that Mr. Bonds wanted some privacy or was concerned about it for some reason?"

Valente: "Yes. He just said -- he said Barry wanted, you know, some privacy, so he didn't want his name on it."

Prosecutor: "So did that suggest to you that Mr. Bonds was aware this was happening?"

Valente: "I believe so. Yes."

Valente acknowledged that he did not personally discuss this with Bonds.

Also at issue will be a recorded conversation between Anderson and Bonds' former business manager, Steve Hoskins. The defense says that, too, should be excluded because it is hearsay. The secretly recorded conversation was made by Hoskins in the Giants' clubhouse in 2003. On it, Anderson appears to discuss providing Bonds with an undetectable steroid that year.

Hoskins' attorney told ESPN on Wednesday that his client will testify for the prosecution, authenticating the recording and providing firsthand knowledge of Bonds' steroid use. The defense is expected to portray Hoskins as a disgruntled former employee who allegedly stole from the superstar.

[+] EnlargeJames Valente
AP Photo/Paul SakumaBALCO vice president James Valente apparently will testify against Bonds.
The government also will attempt to get entered into evidence BALCO documents and lab results that show Bonds testing positive for the steroids methenolone and nandrolone in 2000 and 2001. Wednesday's documents also revealed that the government secured a urine sample of Bonds' that had been taken in 2003 as part of Major League Baseball's steroids testing program, which was new. The government indicates that follow-up testing on the sample revealed the ballplayer's use of the previously undetectable steroid THG; synthetic testosterone, which likely was the cream; and the female fertility drug Clomid, which is used by dopers as a masking agent.

The existence of the 2003 sample underscored Bonds' bad luck in the case. The urine sample initially failed to detect any banned substances, and, thus, was supposed to have been destroyed according to MLB's contract with Quest Diagnostics. So the sample shouldn't have been available for the government to seize when it raided Quest in 2004, a source familiar with the agreement told ESPN.

Not only does the government list numerous blood and urine tests that they say were taken from Bonds but, if the tests are accurate, his cholesterol was high -- 222 in one of the reports.

Bonds is charged with 10 counts of perjury and one count of obstruction of justice stemming from his Dec. 3, 2003, testimony before a federal grand jury investigating a conspiracy to distribute performance-enhancing drugs to elite athletes. Ultimately, Anderson and BALCO owner Victor Conte pleaded guilty to one count each of money laundering and steroids distribution. They served brief jail terms; two other men received probation.

Bonds, like dozens of other athletes who were subpoenaed to testify before the grand jury in the fall of 2003, was given immunity from prosecution. At the time, the government indicated it had no interest in going after the athletes for performance-enhancing drug use; instead, the athletes were warned to provide truthful testimony about their involvement with BALCO or face possible indictment on perjury charges.

Nearly four years later -- on Nov. 15, 2007 -- Bonds was indicted. Quickly, he amassed a high-profile Bay Area legal team, which has spent the past 14 months gearing up for a trial rooted in the question of whether Bonds lied when he said, among other things, that he never knowingly used steroids or other performance-enhancing drugs.

Greg Anderson
AP Photo/Jeff ChiuGreg Anderson, who already has been behind bars twice for refusing to testify against Bonds, likely will go back to prison again if he doesn't testify in the trial.
In their pretrial motions, Bonds' lawyers have worked to prepare Illston for some highly technical rulings, trying to move her toward a rigid interpretation of the rules that govern what a jury will see in testimony and in documents. Relying on tight readings of the rules on hearsay, opinions and chain of custody, the lawyers hope to make it impossible for the federal prosecutors to show that Bonds used steroids, that he tested positive, and that he knew exactly what he was doing and lied about it.

The Bonds effort, though, appears to be an uphill battle. In the documents released Wednesday, it is clear the federal prosecutors have anticipated and prepared for the defense's approach.

They will attempt to use a rule of law known as the "business record rule" to solve many of the problems caused by Anderson's absence. Using Valente, the prosecutors can establish that the lab kept systematic records of drugs and tests and that all were part of the business. A favorable ruling would allow the prosecutors to leap over the bar against hearsay and leave the Bonds lawyers trying to explain drug calendars and regularly scheduled urine tests.

"This should be easy for the government," said Thomas Anthony Durkin, a former federal prosecutor who has defended several significant federal prosecutions in Chicago. "They must show that there was someone in the business who was responsible for keeping accurate records and that the record is itself authentic. That is all there is to it. If it is a laboratory, its business procedures include keeping records of urine and blood tests, and the jury will see the tests."

The prosecutors also seem to have the upper hand regarding Bonds' claims on the chain of custody of various documents, recordings and drug tests. The rules governing chain of custody are more easily met in federal courts than in state courts, and it appears likely that Judge Ilston will allow evidence into the trial even with gaps in its path to the courthouse.

Nevertheless, it remains clear that Anderson will loom large over the case, even as he is likely to be behind bars while the trial plays out. The personal trainer already has spent more than a year in prison -- not for his role in providing steroids to top-level ballplayers but rather for his refusal to testify in the government's case against Bonds.

[+] EnlargeBarry Bonds
AP Photo/Marcio Jose SanchezThe government's case against Bonds depends in large part on the admissibility of testimony from many who worked with him.
Despite intense pressure from prosecutors, who also have targeted Anderson's wife and mother-in-law in tax-related cases, the personal trainer again is expected to refuse to testify and to be sent back to prison for the duration of the trial.

The government intends to call other ballplayers -- Jason and Jeremy Giambi and former Bonds teammates Bobby Estalella, Benito Santiago and Marvin Benard -- to testify about steroid calendars they received from Anderson. The defense argues that the government "will be unable to prove that Anderson's relationship with Bonds was closely similar to his relationship" with his other baseball-playing clients.

Another hotly contested issue will be whether Illston will allow testimony regarding physical and emotional side effects associated with steroid use. The government would like to be able to call, among others, Hoskins and Bonds' former girlfriend, Kimberly Bell, to testify about changes they witnessed in Bonds.

Bell, for example, testified before a grand jury in March 2005 that Bonds told her in 2000 that he had begun using steroids, the San Francisco Chronicle previously reported. Bell described physical changes that included baldness and acne and said he became more hot-tempered.

The defense, though, suggests that there is little in the way of concrete research on the effects of steroid use on humans. Of testimony from steroid experts Dr. Don Catlin and Dr. Larry Bowers, the defense wrote that most of their statements about the side effects of steroids and human growth hormone during their grand jury appearance represent nothing more than "anecdotal junk science" that should not be admitted at trial.

Still, beyond the legal wrangling over documents and hearsay, the most pivotal elements of the government's case are expected to be witnesses that prosecutors will call to offer firsthand knowledge alleging not only that Bonds took steroids but that he knew what he was doing.

Last week, for example, ESPN reported that former Giants catcher Estalella is expected to provide such testimony. Estalella played with Bonds in 2001 and 2002 and was a client of Anderson's, according to the ballplayer's grand jury testimony.

Mark Fainaru-Wada, T.J. Quinn and Lester Munson are investigative reporters for ESPN and ESPN.com. Fainaru-Wada can be reached at markfwespn@gmail.com; Quinn can be reached at tjquinn31@yahoo.com; Munson can be reached at lmunson2@aol.com.

T.J. Quinn joined ESPN in November 2007 as an investigative reporter for ESPN's Enterprise Unit, which is charged with developing long-form, investigative features to be presented across multiple platforms.

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