WHEN FEDERALPROSECUTORS in San Francisco announced plans last week to appeal a judge'spretrial ruling in the perjury case against Barry Bonds, halting theproceedings only three days before the scheduled start, they confirmed what hadbeen suspected for some time: Their case against the former Giants slugger isshaky.
The appeal is alegal Hail Mary, and the Ninth Circuit Court of Appeals is unlikely to overturnJudge Susan Illston's exclusion of some key evidence, including calendars andrecords seized from BALCO that allegedly show Bonds tested positive forsteroids three times in 2000 and '01. When the trial resumes, the feds'predicament will probably be the same as it is today. There is some solidevidence to support a conviction, but prosecutors still won't have thecooperation of a crucial witness, Bonds's former trainer, Greg Anderson, whosaid last week that he would refuse to testify. That's a huge obstacle toovercome.
By choosing tofurther delay the start of the trial, the government also reinforced the beliefheld by some that the BALCO investigation was less an earnest effort to exposeand shut down a large steroid ring than a Melvillean quest to nail Bonds andexpose the taint on his baseball accomplishments. True or not, the governmenthas left its judgment open to question. The delay extends a case that hasalready cost more money and taken more time than the prosecutions of themanufacturer (Patrick Arnold) and the distributor (Victor Conte) of the BALCOdrugs combined. If found guilty, Bonds is unlikely to spend more time in jailthan the four months Conte did, hardly a worthwhile return on the taxpayers'money.
Common sense saysthat Bonds lied when he told a grand jury in 2003 that he didn't knowingly useperformance-enhancing drugs. It was not wrong for the government to charge himwith perjury. But the lengths to which prosecutors have gone to cement theircase have at times seemed excessive, most notably in their efforts to forceAnderson to testify. Government officials threatened his mother-in-law withcriminal prosecution relating to nebulous tax issues and even wired up anundercover agent who joined the gym where Anderson's wife is a personaltrainer, hoping that she would drop the dime on her husband and Bonds inbetween leg lifts.
March 8, 2009
"Sometimes,from the government's standpoint, you make the decision to try an unpopularcase," says William Keane, a former federal prosecutor now with the SanFrancisco firm of Farella Braun and Martel, which represented track coachTrevor Graham in his 2008 BALCO trial for lying to the feds. "As a federalprosecutor you are somewhat immune to outside influences. You have moreauthority and autonomy than most people realize, and your focus—especially thisfar into it—is solely on winning the case you think should be charged."
The evidence thegovernment has today is not very different from what it has had all along. Butprosecutors have made progress on one front. By strong-arming Anderson anddragging out the case, spending more time and tax money, they have started toturn Bonds into a victim in some circles. That's no small accomplishment.
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