Bonds trial faces long delay for appeal

Updated: February 28, 2009, 3:46 PM ET
By Mark Fainaru-Wada | ESPN.com

SAN FRANCISCO -- And so the Barry Bonds saga rages on. With little end in sight.

What once seemed like closure on the horizon -- a perjury trial for baseball's home run king set to begin Monday, nearly six years after the BALCO scandal first erupted -- now has been put on indefinite hold.

The government announced Friday its intention to appeal pretrial rulings that would keep out significant pieces of evidence, bringing the case to a screeching halt despite Judge Susan Illston's chastising prosecutors for even considering an appeal at the 11th hour.

The prosecution's appeal is rooted in rulings the judge made last week, when she ordered that the government would be precluded from using critical evidence.

The start to the trial, legal experts say, likely will be delayed several months, if not considerably longer.

Illston indicated she believed she would be forced to stay the trial, although defense lawyers filed a motion Friday arguing she has the discretion to move forward or to dismiss the case and force the government to appeal that decision.

Late Friday afternoon, Illston issued an order saying that jury selection had been put on hold until further notice.

The appeal is rooted in rulings Illston made eight days ago, when she ordered that the government would be precluded from using critical evidence, including three positive tests indicating Bonds used two different steroids in 2000 and 2001, doping calendars allegedly made to direct Bonds' use of performance-enhancers and doping ledgers believed to further implicate the seven-time MVP in using the banned substances.

Bonds' attorneys issued a joint statement that read: "Barry Bonds is innocent. Rather than present the evidence to an impartial judge and jury, the government has chosen to appeal Judge Illston's correct and well-reasoned order. Instead of a trial, the government wants to prolong its six-year obsession with Barry. It's unfair to him, to the taxpayers, and to the judicial process. The government's strategy of delay shows what little confidence they have in their own case."

The only way Illston suggested the government could enter that evidence is through testimony from Bonds' personal trainer, who has steadfastly refused to testify despite a subpoena. Greg Anderson was back in court Friday morning, reaffirming his intention to not answer questions during the trial.

Illston warned Anderson she would send him to prison -- he already has spent 13 months there for his refusal to testify against Bonds -- if he doesn't cooperate at trial.

Prosecutors, who haven't shied away from pressuring the trainer, going so far as to come after his wife and his mother-in-law in separate tax-related cases, broached the subject that they could later come after Anderson for criminal contempt.

"That could result in punishment," Illston told Anderson.

Anderson was ordered to return to court Wednesday, when the trial is scheduled to begin in earnest, to take the stand and, presumably, refuse to testify after being put under oath.

After Anderson and his attorney, Mark Geragos, were excused by Illston, lead BALCO prosecutor Matt Parrella informed the judge that the government was considering filing an appeal but had not decided whether to do so. Illston, clearly irked, reminded prosecutors that considerable plans had been made preparing for Monday's start to the trial, with 90 prospective jurors scheduled to appear and be available for a month.

"What time are you going to tell me your plans?" Illston asked Parrella, with frustration in her voice.

After a pause, she added, "What time today are you going to tell me?"

"As soon as possible," Parrella responded.

"I need more than that," Illston demanded.

Parrella then said the government would let her know by 6 p.m. ET.

They're on eve of the trial, they've got the momentum going, witnesses lined up; to call timeout at this point is foolish. It lets the air out of the balloon.

-- Peter Keane, a professor
at Golden Gate law school

At 4:18 p.m. ET, the government filed notice and effectively put the case on hold. Two hours later, Illston issued an order stating that Monday's jury selection would not proceed until further notice.

Michael Wong, the former head of the white-collar unit at the U.S. Attorney's office in San Francisco, said these cases were unusual and that the process can take some time. Wong noted a similar case in which the time between appeal and a ruling from the Ninth Circuit was nearly one year.

"It is very possible that the government planned for an appeal," said Howard Pearl, a former federal prosecutor in Chicago and now a defense lawyer with the firm of Winston & Strawn. "If you have a crucial piece of evidence and there are some issues connected to it, you want the court to rule on it before the trial."

Because Illston's rulings were related to admissibility of evidence, the government has the right to seek an appeal through the Ninth Circuit Court of Appeals. And despite some experts suggesting the move was doomed for failure, prosecutors sought and received approval from Washington, D.C., to go ahead and challenge Illston's interpretation of the law.

"That's a stupid move that they're appealing," said Peter Keane, a professor at Golden Gate law school who has been following the case closely. "There is absolutely no chance that an appellate court prior to trial is going to overrule a trial court's evidentiary rulings.

"It's a foolish move on the part of the government. They're on eve of the trial, they've got the momentum going, witnesses lined up; to call timeout at this point is foolish. It lets the air out of the balloon. They should be putting all their time and effort and energy into preparing for trial based on the evidence they have, rather than some futile effort to get in this evidence. The judge made a legitimate call."

Prosecutors had argued there were exceptions to hearsay laws that could allow other witnesses to testify about what Anderson told them regarding Bonds and steroid use. Illston, however, said in open court that these were cases of "classic hearsay," and she made it clear that, without Anderson, the material wouldn't go before a jury.

Without the positive tests, the doping calendars and the drug ledgers, the government case has been stripped primarily to witness testimony from four people who are expected to say they either discussed Bonds' steroid use with the ballplayer or watched him be injected by Anderson.

The government also has a positive steroid test from 2003, in which Bonds is shown to have been using the previously undetectable steroid known as "the clear," and testosterone believed to stem from his use of the substance known in the case as "the cream."

As well, the government says it has an audio recording of a discussion between Anderson and Bonds' former business manager, Steve Hoskins, in which Anderson talks about an undetectable steroid he is providing to Bonds.

Mark Fainaru-Wada is an investigative reporter for ESPN's enterprise unit. He can be reached at markfwespn@gmail.com. ESPN.com senior writer Lester Munson, a Chicago lawyer and journalist who reports on investigative and legal issues in the sports industry, also contributed to this report.

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