Barry Bonds won a big legal victory Friday that could put his long-delayed perjury trial back on track.
A divided three-judge panel of 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 made in February 2009 barring federal prosecutors from showing the jury any evidence collected by Bonds' personal trainer Greg Anderson. Bonds' perjury trial, which was scheduled to start in March 2009, has been delayed pending the outcome of this appeal.
Bonds lead attorney Allen Ruby said the next step depends on what prosecutors do with the ruling, but that the evidence excluded was vital to the case against baseball's home-run king.
"Presumably, the government wouldn't have delayed this case a year and a half unless they thought it was very important," Ruby said.
The government could ask the appeals court to reconsider its decision, ask an 11-judge panel of the court to rehear the case or petition the U.S. Supreme Court to take up the issue. Prosecutors could also accept the decision and go to trial without the evidence or drop the case entirely.
Last year Anderson told the trial court judge that he would rather go to jail on contempt of court charges than testify against Bonds. And 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 toBonds 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.
The judge also permitted prosecutors to play parts of a recording Bonds' former personal assistant Steve Hoskins secretly made of a conversation he had with Anderson in front of the slugger's locker in San Francisco in March 2003.
In that conversation, Anderson discusses how he is helping Bonds avoid infections by injecting him in different parts of his buttocks rather than in one spot.
Bonds testified before the grand jury that no one but his doctor ever injected him.
In all, prosecutors will be banned from introducing samples allegedly belonging to Bonds that were tested for performance-enhancing drugs, BALCO log sheets recording the results of those tests and "doping calendars" seized from Anderson's apartment.
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 appeal the ruling further, the case will be sent back to U.S. District Judge Susan Illston's trial court next month 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.