By Michael McCann
February 27, 2009

On the eve of Barry Bonds' long-awaited perjury trial, federal prosecutors have called a risky audible that may delay the trial for months.

Faced with the prospect of insufficient evidence to convict Bonds, prosecutors have appealed U.S. District Judge Susan Illston's recent decision to bar BALCO steroids-tests and other materials as inadmissible hearsay (i.e., unreliable out-of-court statements made by persons not in the trial). According to Judge Illston, either Bonds' former trainer, Greg Anderson, or a former BALCO employee, needs to testify in order to confirm the reliability of the hearsay evidence. The prosecution disagrees with Judge Illston, especially since Anderson remains determined to avoid testifying. A three-judge panel on the U.S. Court of Appeals for the Ninth Circuit will eventually consider the appeal.

Like most audibles, this one probably won't work. In fact, it may be akin to throwing an interception on an audible rather than gaining short yardage on the original play.

For starters, it is unlikely that the Ninth Circuit will reverse Judge Illston's ruling. The Ninth Circuit will likely review Judge Illston's decision under the deferential "abuse of discretion" standard. This standard merely requires Judge Illston's ruling to fall within a broad range of permissible conclusions as opposed to the Ninth Circuit actually agreeing with her. The deference accorded to Judge Illston is based on the premise that because trial judges can observe the evidence first-hand and can question attorneys and witnesses about it, they are typically in a better position than an appellate court to review evidence.

To be sure, Judge Illston's decision to label the materials as inadmissible hearsay was debatable, particularly given the "business records" exception to hearsay. The business records exception holds that otherwise hearsay materials are sufficiently reliable when they arise in the ordinary course of business. Courts normally expect that persons preparing business records lack a motive to lie, and thus the lack of testimony of a business recorder is not fatal. While some of the materials arguably qualify as business records, Judge Illston believes they did not.

The materials could also be seen as admissible under the "declarations against interest" exception, which in this case would entail Anderson and BALCO employees producing documents that reveal their efforts to provide athletes with illegal steroids. The logic is that these persons would only produce such self-incriminating documents if they were true.

Judge Illston considered those and other arguments, but ultimately sided with the defense. Her reasoning was detailed in a thoughtful 21-page order. The fact that her conclusions can be credibly debated from both sides suggests that her evidentiary ruling will satisfy the Ninth Circuit's review.

While the outcome of the appeal can be predicted with some degree of certainty, the length of time it will take the Ninth Circuit to reach it remains questionable. The Ninth Circuit enjoys significant discretion in the timing in which it will consider the government's appeal. A delay of weeks or months is possible, though depending on the scheduling demands of the Ninth Circuit judges, the response may come much sooner. One thing is certain: the Bonds trial won't be starting next week.

The extra time could be both a blessing and curse for the government. On one hand, the government could earn a surprising victory at the Ninth Circuit, in which case some or even all of the excluded evidence would be admitted. The evidence would substantially increase the prosecution's chances for convicting Bonds.

Less obviously, the elongation of the Bonds litigation may affect witnesses in ways that favor the government. It seems plausible to conclude that a delay of months would be a source of aggravation for Anderson and his family, several members of whom have been targeted by federal investigators. Perhaps Anderson will finally capitulate and agree to testify against Bonds.

Bonds himself may see his patience tested in the coming months. After years of investigation, he was probably looking forward to resolution. Now his wait continues. The government could believe that Bonds would be more amendable to a plea deal, particularly one that imposes only home confinement and probation, if the trial has no end in sight.

The wait could just as easily backfire on the government, however. For starters, the government's case-in-chief, which could have included more than 30 witnesses, was ready to commence next week. Will those same witnesses be available later this year or next year? At some point, witnesses will want to get on with their lives.

The government also would have entered the trial with compelling evidence that Bonds committed at least one count of perjury for denying that Anderson injected him. That count does not require any evidence of Bonds taking steroids; the government only needs to show that an injection occurred. And the government has seemed confident that it could prove that Anderson injected Bonds. To that end, it intended to call to the stand Kathy Hoskins, Bonds' former personal shopper and the sister of Bonds' longtime friend/business manager Steve Hoskins. She was expected to testify that she clearly saw Anderson inject Bonds. Will her recollection be as good months from now?

In addition, it's not entirely clear whether the Obama Justice Department will tolerate a lengthy continuation of the Bonds prosecution (though it assented to the prosecution's appeal today). Particularly in these difficult economic times, with dwindling budgets, the millions of dollars and thousands of hours poured into investigating Bonds for steroids-related claims may become viewed as less and less worthwhile. Bonds might thus be vindicated not by a court or by a jury but by a simple political decision to move on.

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