2/14/2011

By Brittany Clement

            Most baseball fans will surely say they “know” Barry Bonds took steroids during his Major League Baseball career.  Whether the government can prove Bonds himself knowingly took steroids is an entirely different issue.  Yet that is precisely what federal prosecutors in California are trying to do in Bonds’ much awaited perjury trial, slated to begin on March 21 in the District Court for the Northern District of California.  The perjury charges stem from statements Bonds made in 2003 to a grand jury investigating the Bay Area Laboratory Co-operative (BALCO), now famously known for providing undetectable steroids to many professional athletes and Olympians.  At the trial, Bonds claimed he never knowingly used steroids and that he never asked his trainer and personal friend, Greg Anderson, what substances he was giving him, assuming they were harmless.  Anderson, one of the subjects of the 2003 BALCO investigation, eventually pled guilty to illegal steroid distribution and money laundering.  Whether Bonds’ statements are plausible or not, the government’s case against him falls flat for two main reasons.

1) Anderson will not testify at Bonds’ hearing.  Anderson holds crucial evidence against Bonds.  When Bonds had his urine and blood samples tested for performance enhancing drugs, he identified the samples as his own and gave them to Anderson, who then took them to BALCO for testing, where they were assigned a code number.  Anderson has already refused to testify against Bonds – in the 2006 grand jury investigation of Bonds’ alleged perjury and tax evasion.  Anderson spent more that a year in jail for contempt of court, getting released only after the grand jury indicted Bonds on charges of perjury and obstruction of justice.  Anderson is expected to appear in court in March, and again refuse to testify against Bonds.

Anderson’s refusal to testify is a major blow to the government’s case because his absence makes much of the most incriminating evidence against Bonds inadmissible.  In June 2010, the Ninth Circuit affirmed the Northern District of California’s decision to bar Bonds’ alleged blood and urine samples, which tested positive for steroids, as inadmissible hearsay.  See United States v. Bonds, 608 F.3d 495 (9th Cir. 2010).  Without Anderson, the government attempted to have a BALCO employee testify that Anderson brought the samples to the lab and said they came from Bonds.  The District Court was unpersuaded by the government’s attempts to admit the evidence under a variety of hearsay exceptions, including business records, a statement against Anderson’s penal interest, statements of a co-conspirator, and the residual exception.  The government appealed only the District Court’s decision as to the residual exception, which the District Court determined would apply only under extraordinary circumstances.  The Ninth Circuit rejected the government’s argument that Anderson’s unavailability constituted an extraordinary circumstance, as the Federal Rules of Evidence already contemplate such a situation in Rule 804.  (Rule 804 provides exceptions to the Rules’ ban on hearsay that apply when an individual is unavailable and the evidence is particularly trustworthy, such as past testimony given under oath).

The government’s weak attempts to include the positive blood and urine tests are indicative of the holes in its case generally.  Even if Anderson did testify, the tests say nothing with regard to Bonds’ knowledge of his own steroid use, unless Anderson could testify he told Bonds about the steroids or positive test results.  Without the tests, the government is now relying on testimony from athletes linked to Anderson and BALCO, including Jason Giambi.  Last month, the judge presiding over the case ruled that she would allow such testimony, which the government hopes will show that Anderson explained to the athletes that the substances he gave them were steroids and provided the athletes with detailed instructions on how to use them.  Bonds’ lawyers make a strong argument that one athlete’s experience with Anderson can’t necessarily translate to Bonds’ experience, especially given his personal friendship with Anderson.

            Likely in recognition of the holes in its case, last week the government reduced the number of charges against Bonds to five.  Bonds had originally faced fourteen counts of perjury and one count of obstruction of justice.  Bonds now faces only three counts of perjury for claiming to never have never knowingly taken steroids, one count of perjury for claiming no one other than his doctor stuck a needle in his body, and one count of obstruction of justice for obstructing the grand jury’s investigation into the use of performance enhancing drugs in sports.

            2) Quite frankly, the government has bigger fish to fry.  Although not relevant to the legal aspects of the case, the biggest argument against the government is that its nearly decade-long investigation at the taxpayers’ expense into Bonds and other athletes accused of doping will at most result in a few years’ jail time for a public figure who has already faced ostracism from fans and a nearly certain exclusion from the Baseball Hall of Fame.   It’s hard to understand why federal prosecutors and investigators are wasting time and resources on Bonds when illegal drugs are being produced in California and trafficked into the state from Mexico daily, bringing with them violence and instability on both sides of the border.  Furthermore, if the government is trying to make an example of Bonds, it hardly seems worth the time in 2011, given that the steroid problem has largely been eradicated through self-policing on the part of Major League Baseball and other sports leagues. 

It’s also hard to believe such considerations won’t factor into the jurors’ minds, either.  As ESPN’s legal analyst Lester Munson has pointed out, jurors, especially San Francisco jurors that witnessed the rise and fall of Barry Bonds firsthand, may view the trial as a waste of time, given that Bonds’ biggest crime seems more practically to be tarnishing the game of baseball.  To them, and likely all baseball fans, Bonds’ stained reputation, perhaps coupled with the Giants’ recent World Series win without him, seems to be justice enough.  No tenuous charges by the federal government or jail time for Bonds will change that.

Stay tuned for next month’s post on new developments in the trial.  For more information in the meantime, ESPN offers all of its news coverage of the Bonds trial under the “Related” tab on its Barry Bonds page.