Order in the Barry Bonds Case Continues to Chip Away at Government’s Evidence

In the continuing pre-trial sparing over the evidence to be admitted, the defense team for Bonds landed what may turn out to be serious blows to the government’s case. It is almost certain that based on Bonds’ trainer Greg Anderson’s past willingness to serve jail time for refusing to testify against Bonds, that the government will have to make its case without Bonds. Judge Susan Illston’s order yesterday proves that this will be an uphill climb.  A review of the ruling on some of the key pieces of evidence.

 
The Positive Tests

 
The first piece of potential evidence that the government was seeking to admit were three lab results coming from Quest Diagnostics. The defendant’s motion contended that the government cannot establish that the urine samples came from the defendant. As Illston points out, items like blood or urine samples can be authenticated through a clear chain of custody. The problem as is the case here is that a serious gap in the chain of custody may lead to exclusion.

In order to clearly prove the chain the government would need the testimony of one Greg Anderson. Anticipating his refusal to testify, they tried using the testimony of BALCO employee James Valente that each time he received the samples Anderson indicated they were from Bonds. The problem being that these statements are hearsay, they would usually be barred as evidence. The government tried numerous exceptions along the lines of Statements against penal interests, Co-Conspirator Statements, Residual exception, and Speaking agent statements, but none of these exceptions were granted.

After making these determinations Illston concluded that without Anderson’s testimony the records from Quest would not be admitted.

Along these same lines, BALCO log sheets and Lab results from LabOne and Specialty Laboratories were also likely to be excluded

 
The BALCO Calendar

In raiding the home of Greg Anderson the government also seized a calendar that they contend was Bonds’ doping calendar. The calendar, which was marked “BB” was similar to doping calendars that Anderson had given to other players. The government had lined up witnesses who would provide testimony to this effect that these calendars were in fact doping calendars that Anderson had used for them. Unfortunately for the government these were barred for hearsay as well. Once these calendars marked “BB” were excluded the calendars of the other players were deemed irrelevant.

 
The Tape Recorded Statements

The government can take solace in one part of the order, which pertained to the tape recorded message between Anderson and Steve Hoskins, Bonds’ childhood friend and personal assistant. The recording was made by Hoskins in the Giants locker room in March of 2003, around the time MLB began its so-called anonymous survey testing.
The recording has been broken down into 3 parts. The middle Part B was the only section ruled inadmissible. This section pertained to Anderson’s scheme to evade MLB’s procedure to test for steroid use. This though was excluded because the government had not established that it was an offense in 2003 to evade detection.

 
(As a side, the conversation is interesting in its insight into just how random and reliable the anonymous tests MLB instituted in 2003 were. Anderson seemed to be pretty certain of both the procedure and when the tests would be taking place. He hints that he has an idea because the lab where he does his “stuff” is the lab that baseball is using.”)

 

The first Part A doesn’t reference steroids specifically but talks about certain shots Bonds took, however here Anderson does explicitly mention Barry, which could connect Bonds to his later statements. In Part C, Anderson boasts about everything he has been doing being “all undetectable.” As he further explained you could “take it the day of” and “it comes up with nothing.” He admits that it is the same stuff that worked at the Olympics for Marion Jones.

While the admission of this evidence seems damming to Bonds, the government still has work to do. At trial they will have to lay the foundation that the “stuff that worked at the Olympics” was something that was illegal in March of 2003. This has been a topic of debate throughout specifically whether the “cream” and the “clear” were actually illegal in 2003.

 
Expert Opinion and Kimberly Bell

Illston also will allow the testimony of expert witness Dr. Larry Bowers, the senior managing director of the United States Anti-Doping Agency. He will testify to the side effects of steroids and HGH that Kimberly Bell is anticipated to testify she saw in Bonds. The issue here then becomes the testimony of Bell. The government has been ordered to file a declaration from Bell which the court will look at in determining the admissibility of her testimony.

 

While the ruling yesterday is a clear victory for Bonds, the government still has a few cards left to play. Exclusive of yesterday’s order, the government still contends that they have first hand witnesses to Bonds’ steroid use, among them former teammate Bobby Estalella.

One final thing to ponder is how much of a role this exclusion of evidence will play.  With the high profile nature of the Bonds case, and the decision to make these tests public in the first place, the fact that they won’t be presented at trial won’t keep it out of the back of jurors minds.  Though we may never know, it’ll be interesting what the role that the media’s perception of a guilty Bonds will play in this case.  The defense better hope for a few Giants fans.

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