The government filed a last-minute appeal of judge Susan Illston’s ruling that some evidence would not be admitted to Barry Bonds’ perjury and obstruction of justice trial which was set for Mar. 2. According to ESPN legal expert, Lester Munson, the appeal could delay the trial over a year and a half.
The Administrative Office (AO) of the federal courts, which is the Elias Sports Bureau of the court system, says that the median time to complete an appeal in the U.S. Circuit Court of Appeals for the 9th Circuit — where the Bonds case appeal will be argued and decided — is 19.4 months.
Among the evidence that Illston ruled inadmissible were lab results of tests done though BALCO, doping ledgers and doping calendars believed to be made by Bonds former trainer, Greg Anderson. Anderson has maintained he will not testify.
Without Anderson, Illston ruled that the government would be relying on hearsay to establish that urine and blood samples said to be Bonds’ actually were his. And so, with no one to affirm directly the samples came from Bonds, Illston ruled there is no proof that the results of the tests or entries in doping ledgers actually refer to the ballplayer.
Illston also ruled inadmissible doping calendars believed to be made by Anderson for Bonds, as well as calendars for other ballplayers and athletes.
Munson, a lawyer and senor writer at ESPN, believes the government has a good chance of winning the appeal.
The prosecutors offered clever and creative arguments for the use of their evidence. The major obstacle, of course, was personal trainer Greg Anderson’s refusal to testify against Bonds. If he had agreed to testify, the use of the evidence would have been simple and routine. But without Anderson’s testimony, the prosecution had problems in meeting the requirements of the rules that govern evidence in federal courts. Relying on a series of rules that allow evidence to be presented even though it is hearsay, the prosecutors seemed to have met the legal requirement for use of the evidence. Illston, however, disagreed. Was she correct? The higher court will decide, but it looks good for the prosecutors.
Shysterball’s Craig Calcaterra, another lawyer and baseball writer, respectfully disagrees.
The prosecutors’ arguments for admitting the test results and other BALCO records were that they were business records, that they fell under the co-conspirator exception to the hearsay rule, or, most forcefully, that they were subject to the residual hearsay exception. I won’t bore the non-lawyers with a full analysis of this, but I’ve read the briefs, and none of those arguments, especially the residual exception argument, were remotely convincing. Basically, they argued that the records, though hearsay, should be admitted because, well gosh darn it, they’re really good evidence that we want in this case. In light of these weak arguments, and in light of no one who can authenticate and speak about these documents with first hand knowledge, no, I do not agree that “it looks good for the prosecutors.” And that’s before we get into the political/philosophical predispositions of the 9th Circuit Court of Appeals, which favor Mr. Bonds.
The government must submit its opening brief on June 1, Bonds must respond by July 1, after which the government can submit a rebuttal by July 15. After that, the court could rule on the appeal, or request oral arguments. The deadlines could be delayed if either side requests more time to complete their arguments.
