A win for the defense

The government’s case against Bonds gets weaker by the day:

A federal judge has barred prosecutors from using three positive steroid tests and other key evidence in Barry Bonds’ trial next month because of his personal trainer’s refusal to testify. The ruling issued late Thursday was expected. The judge had said earlier she was troubled by the admissibility of the test results because prosecutors couldn’t conclusively tie them to Bonds. Prosecutors allege that Bonds’ trainer, Greg Anderson, collected the urine samples and delivered them for testing to the Bay Area Co-Operative Laboratory in 2000 and 2001. But Anderson has refused to testify. The judge said without his testimony, prosecutors cannot link the tests to Bonds. Federal agents seized the samples when they raided BALCO in 2003.

I’ve always been less impressed with the positive tests in this particular case because if you’ve read Bonds’ grand jury testimony it’s clear that everything turns on whether he knew what he was taking or not. Indeed, no one — short of people wishing to create a straw man out of Bonds — is claiming that Bonds didn’t take steroids, because it’s quite obvious that he did. As such, the existence and admittance of a positive test, while interesting and no doubt damaging to Bonds’ case, would not have been dispositive.

This case effectively died the day it became clear that Greg Anderson wasn’t going to testify. Indeed, if the government is really interested in sticking it to Bonds, they would probably have a better shot at easing off and biding their time in the off chance that Greg Anderson buys a hundred thousand dollar sports car in Newport Beach with Barry Bonds’ American Express card or something.

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Pete Toms
14 years ago

Judge Illston has ruled that 1 positive test is admissible (right legal term?).  Anway, it’s the 03 “anonymous” test.  It tested negative 1st go round because the testers didn’t know to look for THG (right acronym?) aka. “the clear”.  The feds re-tested it and it contained that and a form of testosterone not naturally produced (IIRC).

The Judge has decided to allow the prosecutors to use Hoskins secretly recorded conversation with Anderson in the Giants’ locker room.  The Judge has also decided to allow the prosecutors to use a “steroid expert”, can’t recall his name, which will allow them to discuss the size of Bonds’ head, hands, his back acne, shrinking testicles and all that….

Read also that the feds might contest (again, my legal terminology is woeful) Judge Illston’s ruling over the 3 positives which would delay the trial another several months.  UGH!  Let’s get this ****ing thing over with already!

An aside, with all the talk about Presinal today, I think the A Rod saga is far from over…ugh again.

14 years ago

The only conclusive evidence that Bond’s used steroids is related to THG – which was not illegal or considered a steroid in 2003 or earlier (Bond’s also admitted to taking “the clear”, which contained THG).  Not to say Bonds didn’t take steroids, but people are generally mistaken in assuming it’s some kind of fact that he did.

Like the article says, the case is about whether he knowingly did it, though, and the Fed’s are seriously lacking a case right now…glad they spent $50 million in taxpayers money, though.

Pete Toms
14 years ago

@ B; No, I think we do know it is fact that Bonds took steroids.

14 years ago

Well said Craig re:judges. The *process* for the appointment of judges is highly political, but the sort of people who are attracted to the bench tend to possess a distinctly independent streak that political pressure struggles to tame. Moreover, like University academics, the unfettered nature of their position tends to provide politicians with few avenues to exercise any pressure anyway. Of course, I must confess this is the opinion of a member of the Commonwealth, so the American judicial system is not something I know much about.

14 years ago

Interesting.  The judge disallows factual evidence (positive tests and calendars that speak directly to Bonds guilt), unless they’re supported by the testimony of his convicted felon, hostile witness (and quite possibly bribed) trainer…yet allows a taped conversation (complete hearsay?) recorded without the knowledge of one of the parties involved…?

That sounds like a helluva basis for an appeal, providing she can’t manage to further hamstring the prosecution enough to get Barry off.

Oh well, she’s a Clinton appointee, and as such, probably doesn’t see anything wrong with lying under oath.

Craig Calcaterra
14 years ago

See, Cthulu, the thing about calendars and test results is that they don’t, you know, talk.  They cannot tell a jury what they are and where they came from and what they mean. Nor can they, contrary to your assumption, establish their own truth.  That requires a person who knows something about them. Worked on them. Has first hand information about them to explain what these inanimate objects are, what they mean, and whether the jury should determine that, yes, they are in fact “factual evidence.”  We fancy-types with law degrees call that “authentication.”  And its rather important.  Because if it wasn’t, there would be nothing stopping the government from creating evidence from whole cloth to put you or someone you love in prison.

As for the hostile/bribed Greg Anderson: I ask you whether you would think so little of his testimony if he were offering it willingly in an effort to put Bonds in jail for perjury. Because if you’ve been following this case the one thing you know is that the prosecutors have wanted nothing more in the world than to have him be their white knight and star witness.  The lesson: prosecutors take their cases as they find them, and if they want to put a drug user in the slammer, they usually have to play ball with a drug dealer or felon themselves. Just because you don’t like which team he’s siding with doesn’t change his character.

Helluva basis for appeal? Hardly. Trial judges are given extraordinary amounts of discretion to make evidentiary rulings such as these, and appeals courts are loathe to upset them.  Given that this is not a close call—again, its evidence that the prosecutors themselves admit that they can’t authenticate—no appeals court will touch this.

Your final comment reveals you to be the troll that you are.  But assuming you’re actually serious, for your sake and the sake of the profession, I hope to God you’re not a lawyer or law student, because you have an awful lot to learn about the federal bench and the relationship between the judge and the president who appoints them.

14 years ago

Curious about the clock, (it says last post is at 11:17PM and it’s 10:30PM Eastern as I write this). 

I think chthulu’s point on the appeal wasn’t the prosecution appealing, it was the defense appealing if there were a conviction because the tape stunk up the courthouse.  From the transcript, it’s testifying for Greg Anderson and you can’t really tell what he’s testifying to or about, but it sounds bad.

Craig Calcaterra
14 years ago

OK, if I misread your post Cthulu, I apologize. I took it as hostility against the barring of testing evidence rather than questioning the tape recordings. 

For what it’s worth, though, there is a better basis for admitting the tapes than the testing, because Anderson’s own words can speak for themselves, and the fact that only one party was privy to the conversation doesn’t necessarily mean anything as long as there is no dispute as to who the people having the conversation are.

But again, forgive me if I misread your post and for the rather amped-up tone of my comment.

14 years ago

So, Craig, you’re telling me practically every president who’s ever held office hasn’t done his level best to pack the Supreme Court, whenever the opportunity presented?  And further, none of them would EVER do the same to the federal bench?
Are you really that naive (or simply willfully stupid?)  Sorry, but you really have an awful lot to learn about politics.

As to the tests and calendars, not being able to speak for themselves, and saving us from the clutches of the feds, I suspect it’s been used FAR more often to keep the guilty out of jail. 
Why, exactly, is it that ‘fancy-types who have law degrees’ seem to have no problem twisting every statute to suit their purpose… as long as the client is rich enough?  While this is hardly that serious a case, how many witnesses do you estimate have been coerced, bribed, or even murdered, over that very legal technicality?

And, please, in American society’s thoroughly botched attempt to achieve even a modicum of justice… isn’t a lawyer the ultimate troll?

14 years ago


14 years ago

Craig, now that I’ve replied hot-headedly to your post… and didn’t get it up until after you’d made a very rational and polite response…
I need to apologize.  I don’t mind the amped-up tone at all, it’s common on other boards I’ve posted to, and rolls off quite readily.

It seems to me (and I’m not an attorney), that the one sided taping should be legally questionable, especially as it’s quite likely the aware party was leading the other. 

On the other hand, to disallow the tests and calendars, is to give benefit of the doubt those least deserving.  How likely do YOU think it is that those positive aren’t Barry’s??? 

He’ll probably walk… steroid user and liar though he may be, because evidence was suppressed.

I stand by the remark about the political motives behind the appointment of judges… unless you can show me a pro-life (I’m not), Handgun-ownership favoring, Tyson Chicken prosecuting member of the bar old “I did not have sex with with that woman” Bill ever appointed.

And, you’re not willfully stupid… you’re just a lawyer.

14 years ago

Scott, your Mom called, she says it’s time you were in bed. 

Don’t forget your teddy bear.

Craig Calcaterra
14 years ago


Now that we’re being reasonable:

“It seems to me (and I’m not an attorney), that the one sided taping should be legally questionable, especially as it’s quite likely the aware party was leading the other.”

Legality and admissibility are two different things.  Many states make it legal for one person to tape a conversation, other states make it illegal to tape one unless both parties are aware.  There are hiccups with this depending on whether it’s on the phone, etc.  I actually think that California is a two person state, so depending on the circumstances of the tape here, it’s possible that the act of taping was illegal.

That said, it may still be admissible, as the federal rules of evidence and the cases interpreting them do not cite legality of the recording under state law as a condition to admissibility. All that need to have happened is that someone can come in and say “yes, I made that tape and the person’s voice on that tape is who I say it is.” That does not seem to be in dispute here.  The tape may still not prove convincing, but it is likely properly admissible.

“On the other hand, to disallow the tests and calendars, is to give benefit of the doubt those least deserving.  How likely do YOU think it is that those positive aren’t Barry’s???”

You and I may both suspect and assume that they’re Barry’s, but the burden of proof in a criminal trial requires more than the burden of persuasion in “Game of Shadows” or some magazine article. Sure, maybe in this particular case it is somewhat silly to think that they weren’t Barry’s tests, but the rules have to apply across the board.  If I scrawled out a murder confession on a piece of paper, signed your name, and stuck it on a dead body three houses down from you, many of your neighbors may believe that you killed the guy.  For your sake, however, you had better hope that the prosecution has to actually prove that you wrote the note and killed the guy before sending you off for your lethal injection.

“He’ll probably walk… steroid user and liar though he may be, because evidence was suppressed.”

See, I look at it differently: He’ll probably walk… steroid user and liar though he may be, because the government was unable to marshal enough admissible evidence against him.

“I stand by the remark about the political motives behind the appointment of judges… unless you can show me a pro-life (I’m not), Handgun-ownership favoring, Tyson Chicken prosecuting member of the bar old “I did not have sex with with that woman” Bill ever appointed.”

I don’t dispute the political motives involved in the appointment of judges. I just know that those motives aren’t often borne out in rulings that the president who appointed him might favor.  Three of the justices who voted to order Nixon to turn over the Watergate tapes were appointed by him.  William Brennan, Earl Warren, Sandra Day O’Connor and David Souter were appointed by Republicans, and all routinely outraged their supposed constituencies.  Byron White—who voted in the minority in Miranda v, Arizona and Roe v. Wade was a Kennedy appointee.  And that’s in the Supreme Court, where it’s far easier to exert one’s political will over a case.

This is not to say the president doing the appointing doesn’t matter.  It does in the aggregate—say, dozens of federal judges making minor shifts in jurisprudence over years.  A good example is the slow erosion of our 4th Amendment rights over the past 25-30 years.  It’s hard to point to any one case as truly egregious, but over time you realize how much the tide has shifted due to the “law and order” and “get tough on crime” approach so many Regan and Bush appointees have taken.

But in this case?  A case that doesn’t have any apparent political overtones? Good luck making case-specific predictions of a judge’s predispositions, let alone blatant accusations that one is dishonest because the president who appointed her was.

“And, you’re not willfully stupid… you’re just a lawyer.”

I take that as the highest compliment.