By Brittany Clement

            Last month I wrote about the government’s weak case against Barry Bonds, which is slated to go to trial later this month.  I stand by that assertion, especially given a recent development in the case, in which the presiding judge, United States District Court Judge Susan Illston, asked the two sides to resolve the case before going to trial.  Prosecutors have said they would have a conversation with Bonds’ attorneys regarding a plea bargain, but Bonds’ lead attorney expects a trial.  See Juliet Macur, Resolution Requested in Bonds Case, New York Times, Feb.18, 2011.  This seems especially likely after Bonds pled not guilty to perjury charges last week.  The government’s willingness to negotiate a plea and Bonds’ apparent readiness for a trial clearly indicates that Bonds’ attorneys believe the government’s case is so weak that they would rather face a San Francisco jury than voluntarily give their client any jail time and a felony on his record.

            These developments occurred even after Judge Illston handed the government a key evidentiary victory, should the case go to trial.  The ruling will allow the government to admit portions of a 2003 recording in which Bonds’ trainer, Greg Anderson, allegedly described injecting Bonds with steroids to Bonds’ former business partner, Steve Hoskins.  (Anderson also appeared in court last week, again refusing to testify likely because of his longtime friendship with Bonds.  Judge Illston indicated she would send Anderson to jail for contempt of court during the duration of Bonds’ trial should he continue to refuse to testify.)  The court divided the recording into three sections.  In Part A, Anderson spoke of injecting Bonds with a substance; in Part B, Anderson spoke of helping athletes evade doping detection by professional sports organizations; and in Part C, Anderson spoke of “the stuff that worked at the Olympics,” allegedly referring to performance enhancing drugs used by Marion Jones and others that went undetected by the International Olympic Committee drug tests.

            The court had previously ruled Parts A and C admissible and Part B inadmissible, and did not change course in its February 15 ruling.  Because Anderson will not testify against Bonds, the court’s decision hinged on whether an exception to the bar on hearsay – basically any statement made outside the trial – in the Federal Rules of Evidence applied to Anderson’s statements.  Under Rule 804, the applicable rule governing hearsay exceptions in this case, in order for a hearsay statement to be admissible, a declarant must be unavailable (which Anderson clearly is under Rule 804(a)(2), given his refusal to cooperate) and the evidence must be particularly trustworthy (which the court found because the statements were recorded).  The court focused solely on Rule 804(b)(3), which permits hearsay statements that are against the declarant’s economic interest or tend to subject the declarant to civil or criminal liability, because such statements tend to be more reliable.  For Anderson’s steroid-related statements to be admissible, the steroids discussed in the recording must have been illegal in 2003, when the recording was made, because otherwise the statements would not be against Anderson’s interest.

            Because the government did not establish that helping athletes avoid positive doping tests was a criminal offense in 2003, the court did not find an exception under Rule 804(b)(3) for Part B of the recording, and thus held that the statements were inadmissible hearsay.  The court did, however, find that the government would satisfy the Rule 804(b)(3) exception for Parts A and C if it could “lay foundation” that the substances to which Anderson was referring were illegal in 2003.  However, neither party may reference the recorded conversation in front of the jury, namely in opening statements or direct examination, before the government establishes the illegality of the substances before the court.  See United States v. Bonds, No. C 07-00732 SI, Order Re: Motions in Limine (N.D. Cal. 2011).

            Although it seems the government has won this fight over admission of the Hoskins-Anderson recording, Bonds’ lawyers continue to challenge other evidence and witnesses.  One of the most interesting developments to keep an eye out for is Bonds’ challenge to testimony by his former girlfriend.  Judge Illston has ruled such testimony admissible, pending Bonds’ objection.  The government seeks to bring Bonds’ former girlfriend to the stand to testify to changes in Bonds’ body, including increased acne, body hair, and, the most contested issue from Bonds’ end, a decrease in size of his testicles and worsening of his sexual performance.  Bonds’ attorneys say such testimony proves nothing and would be unnecessarily lurid and embarrassing for Bonds.  Furthermore, the attorneys argue the testimony would lead to a battle of experts over whether such bodily changes are attributable to steroid use.

            This issue, in particular, shines light on just how ridiculous this case has become.  The government has dropped ten charges against Bonds since the original indictment.  Anderson, the government’s most vital witness, is still choosing jail time over testifying, and the government’s only admissible hearsay evidence from Anderson still requires an additional layer of arguments. Now, the government wants to introduce testimony on, for a lack of better words, Bonds’ shrinking testicles as evidence of his steroid use and, therefore, perjury?  Is this really the best use of the government’s time and money?

            As filmmaker Charles Ferguson pointed out in his Oscar acceptance speech for Inside Job, his documentary on the recent financial crisis, not a single financial executive has gone to prison for playing a role in the 2008 financial meltdown.  Interestingly, the San Francisco Chronicle published an article last week claiming that the government is unwilling to prosecute those involved because the Obama administration is not certain it can win.  See Andrew S. Ross, “Why those from ‘Inside Job’ aren’t inside a prison,” San FranciscoChronicle, March 1, 2011.  Yet federal prosecutors in San Francisco continue to grasp at tenuous evidence to put an already disgraced former athlete behind bars.  One of their chief arguments, after all, proves little, further embarrasses Bonds, and sets up what Bonds’ attorneys call a “circus atmosphere.”  See Juliet Mancur, “Former Trainer Vows Again He Won’t Testify Against Bonds,” New York Times, March 1, 2011.  For the sake of the criminal justice system, Judge Illston should seriously reconsider allowing this testimony.  And perhaps federal prosecutors should start focusing on those who did a lot more damage to this country in 2007 than cheating their way to a home run record.