SAN FRANCISCO — A divided
federal appeals on Friday court dealt the federal government a
significant setback in its prosecution of Barry Bonds on perjury
charges.
The 9th U.S. Circuit Court of
Appeals ruled Friday that prosecutors may not present positive urine
samples and other vital evidence that the government says shows that the
slugger knowingly used steroids.
The appeals court ruling upholds a
lower court decision barring federal prosecutors from showing the jury
any evidence collected by Bonds' personal trainer Greg Anderson.
Anderson last year told the trial
court judge that he would rather go to jail on contempt of court
charges than testify against Bonds.
The court says evidence tied
directly to Anderson is inadmissible "hearsay" evidence unless the
trainer testifies to the items' authenticity.
Prosecutors argued that Anderson
had told BALCO vice president James Valente that the samples belonged to
Bonds and that they would call Valente to the witness stand. But the
appeals court said that because Anderson wasn't directly employed by
Bonds — the judges considered him an independent contractor — the
trainer would need to testify because Bonds didn't control of the
samples.
The court noted it was Anderson's
idea to collect the urine samples and deliver them to BALCO.
"There is little or no indication
that Bonds actually exercised any control over Anderson in determining
when the samples were obtained, to whom they were delivered, or what
tests were performed on them," Judge Mary Schroeder wrote for the
majority court.
Judge Carlos Bea dissented,
writing that he would have allowed Valente to testify about the samples.
Although the ruling eliminates
what prosecutors said were three positive steroid tests, they still have
a fourth test showing Bonds used steroids. In 2003, Major League
Baseball tested all of its players for steroid use. The results of those
tests were to remain confidential and were to be used only to determine
if MLB had a drug problem that needed to be addressed.
The lab that MLB hired to
conduct its testing found that Bonds tested negative for steroid use.
But in 2004, federal agents seized Bonds' urine sample and had it
retested for the designer steroid THG, which they said turned up
positive.
Bonds has pleaded not guilty to
charges that he lied to a grand jury in December 2003 when he testified
that he never knowingly used performance-enhancing drugs. A federal
grand jury indicted him in 2007. His trial was scheduled to begin March
2, 2009, but the trial was delayed by the government's appeal.
Unless federal prosecutors asks
the Supreme Court to take the case or the appeals court to reconsider
its ruling, the case will be sent back to Illston's trial court to
reschedule the start of the trial.
Legal experts said it may take
Illston several weeks to clear her busy calendar for the Bonds trial.
Bonds also has six prominent lawyers with many clients each and their
calendars will also have to be taken into consideration as well.