Will Feds Swing at Bonds, or Run to Umpires?

Dan Levine

The Recorder

Barry Bonds' trainer may be heading to court for a much-publicized appearance this morning, but the only suspense will come from the prosecutors.

Since Judge Susan Illston excluded key government evidence last week, legal observers have been guessing as to whether Assistant U.S. Attorney Matthew Parrella and his team will ask the 9th U.S. Circuit Court of Appeals to step in, which would push back the perjury trial for months. Jury selection is currently scheduled to begin Monday.

Illston ordered trainer Greg Anderson into court this morning to say, for the record, whether he will testify. So far, his attorney, Paula Canny, has broadcasted to the media that Anderson would not, thus depriving the government of a chance to introduce drug tests in which Bonds tested positive for steroids.

Assuming Anderson doesn't change his mind, the government would have to ask Illston to stay the trial in order to pursue an appeal. But Illston's assent is not a given: Some lawyers following the case say Illston might give the government a hard time, especially since prosecutors had proposed that the Anderson situation not be addressed until he's called to the stand during trial. The judge, concerned that opening statements could be affected, ordered that the issue be confronted now.

Should Illston refuse to stay the trial, prosecutors would then have to file an emergency motion with the 9th Circuit. Illston originally scheduled the Anderson hearing for 2 p.m., but prosecutors asked for an 8:30 a.m. time slot -- further fueling speculation that the government wanted enough time to make it to the circuit. Illston ultimately set it for 10:15 a.m.

Neither a Justice Department spokesman nor Bonds' defense lawyer, Allen Ruby, responded to e-mails seeking comment.

One former federal prosecutor sees an advantage for the government in going forward now.

"In light of the immense time and resources already devoted to the case, I say just try it with the evidence you have," said Dechert partner Richard Cutler. "If you lose then you can blame the court's ruling, and if you win, you win."

Last week, Illston excluded direct evidence of Bonds' steroid use: lab tests of the former slugger's blood and urine that the government had seized during its BALCO steroids investigation. In the absence of Anderson's testimony, Illston found that the government could not establish the necessary chain of custody without using impermissible hearsay. The judge also tossed out doping calendars seized from Anderson's house. To gain a stay, federal law requires prosecutors to certify that the evidence in question offers "substantial proof" of a material fact. If the government appeals and is unsuccessful, some defense lawyers wonder whether the government's certification would become fodder in a mid-trial motion for acquittal.

Such motions are rarely granted, though, and prosecutors still have potentially damaging evidence -- including a witness expected to testify that she saw Anderson injecting Bonds.