Commentary

Bonds appeal deck might be stacked

Barry Bonds' lawyers might have sympathetic ears for their oral arguments this week

Originally Published: September 15, 2009
By Lester Munson | ESPN.com

When Barry Bonds' legal team walks into a majestic, marble courtroom on the third floor of the U.S. Court of Appeals in San Francisco on Thursday morning, its members quite likely will struggle not to smirk.

As they offer oral arguments attacking the federal perjury charges against Bonds, they will know they are addressing a panel of three judges who are likely to be sympathetic to their suggestions.

The three judges, who range in age from 68 to 78, include the most notorious liberal on the nation's most liberal appeals court, another judge known to be left of center and one Republican conservative. They were selected to hear Bonds' appeal in a computerized, random process used in federal courts throughout the U.S.; but together, they are likely to be skeptical of the government's attempt to salvage its case after adverse rulings from Judge Susan Illston, and to look with some disfavor on a protracted investigation of baseball's career home run leader that has continued now through two presidents and four U.S. attorneys general.

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9th Circuit Court of Appeals for ESPN.comThis is where it will happen Thursday: the courtroom where oral arguments will be heard.

"That should be a real good panel for Barry Bonds," said one veteran California lawyer who has argued numerous appeals in the 9th Circuit court and wished to remain anonymous because the attorney has cases pending in the building.

Federal prosecutors are asking the judges of the high court to overturn rulings that barred them from using positive drug tests and other incriminating materials in their efforts to prove that Bonds lied to a grand jury when he denied ever using performance-enhancing drugs. The rulings were based on a gap in the chain of custody of the materials that resulted from steadfast refusals of Bonds' trainer, Greg Anderson, to testify and to connect Bonds to the tests, the ledgers and lab records.

Lawyers and professors familiar with the high court agree that Judges Stephen Reinhardt and Mary M. Schroeder are likely to be sympathetic to Bonds in a situation in which he is fighting the U.S. government. The best hope for government prosecutors normally would be the third panelist, Judge Carlos Bea, a former Stanford basketball player who played for Cuba in the 1952 Summer Olympics in Helsinki and the most knowledgeable of the three in the rules of evidence that lie at the heart of the case. But in an opinion issued in August, Bea was harshly critical of federal investigators' seizures of MLB's 2003 drug tests.

Reinhardt, whom President Jimmy Carter appointed to the court in 1979, has become the prototype for the liberal judicial activist. He famously decided that the phrase "under God" in the Pledge of Allegiance was unconstitutional, and he once ruled that a ban against doctor-assisted suicides was a violation of the due process clause of the Constitution. Both decisions were later reversed; in fact, scholars estimate that Reinhardt may have been reversed by the U.S. Supreme Court more often than any other judge.

Highly respected for his work ethic and his long and literary opinions (the 109-page suicide opinion had 140 footnotes and references to Montaigne, Hume and King Lear), Reinhardt, 78, worked as a labor union lawyer before he was appointed to the bench and was a political confidant of former Los Angeles Mayor Tom Bradley and former California Gov. and current Attorney General Jerry "Moonbeam" Brown.

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AP Photo/Stephanie TurnerJudge Stephen Reinhardt, shown here in 1997, isn't likely to see things the government's way.

As a measure of his place on the intellectual spectrum, Reinhardt frequently criticized President Bill Clinton for his failures to appoint liberals, Hispanics, blacks and gays to the federal courts. His wife, Ramona Ripston, is the head of the Southern California branch of the ACLU. He is her fifth husband.

If there is any hope for the government in its appeal, prosecutors must convince Schroeder, 68, that they have solid, admissible evidence of perjury. Lawyers and law professors interviewed by ESPN.com use the words "brilliant" and "moderate" in their descriptions of Schroeder, who also was appointed by Carter in 1979. She has been a leader on the court and has the capacity to persuade other judges to vote with her.

Judith Lonnquist, a former classmate of Schroeder at the University of Chicago Law School, describes her as "very smart and a little left of center." Schroeder's score on the law school entrance examination was the highest in the nation, but she faced numerous obstacles both in law school (there were only six women in a class of 150) and early employment, as women were just beginning to make inroads into the legal profession.

In her career of firsts, Schroeder was the first woman hired by a big firm in Phoenix, was once the youngest woman on an appellate court and was the first woman to serve as the chief judge of the 9th Circuit.

Schroeder's husband, Milton, was her law school classmate and since 1969 has been a professor at the law school at Arizona State University. He was the Sun Devils' faculty representative to the Pac-10 Conference and the NCAA and served for many years on the NCAA Committee on Infractions and as chair of the NCAA committee for student-athlete eligibility appeals.

Although he has been on the high court for only six years (appointed by President George W. Bush), Bea is the most experienced of the three in trials. He was extremely successful as a trial lawyer in San Francisco, trying dozens of jury cases and earning memberships in the two most selective organizations of litigating lawyers in the U.S.: the American College of Trial Lawyers and the American Board of Trial Advocates.

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Paul Sakuma/Getty ImagesDescribed as "very smart and a little left of center," Judge Mary M. Schroeder's presence on the panel probably isn't good news for the government.

His knowledge of the intricacies of the rules on hearsay evidence and the use of business records from a laboratory may be critical to the outcome of the case.

Bea, who is 6-foot-5 and drove a white Rolls Royce convertible for several years, was not happy with the work of Jeff Novitzky, the lead agent in the BALCO investigation and the Bonds perjury prosecution. In an opinion Bea issued last month in the ruling for the players' union on drug tests seized in raids in 2004, he noted that the agents failed to follow the rules and grabbed 94 positive tests that were not authorized in the search warrants.

But Bea also criticized his nine fellow judges who issued a series of rules that are supposed to govern future raids and future searches. He criticized the new rules as "little more than dicta [extraneous legal ramblings]" in a dissent that will be popular with federal prosecutors across the U.S. for its insistence that the guidelines set out in the majority opinion have no standing as legal precedents.

As these three judges look down from their bench high in the courtroom on Thursday, each side will be permitted to offer 15 minutes of argument. It is difficult to predict when the judges will issue a ruling, but a decision normally would come after several months of writing, rewriting and the possible preparation of separate opinions.

For Bonds, the three-judge panel may be a gift: a certified liberal, a moderate who leans left and a conservative who is not happy with the government's investigation. It is easy to see why his lawyers may find themselves smirking.

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.