Judge bars use of drug tests in Bonds trial
By PAUL ELIAS, The Associated Press
11:34 p.m. February 19, 2009
SAN FRANCISCO — A federal judge barred prosecutors on Thursday
from showing jurors three positive steroid tests and other key evidence
in Barry Bonds' trial next month.
The decision is a setback for the government in its five-year
pursuit of Bonds, who has pleaded not guilty to lying to a grand jury on
Dec. 4, 2003, when he denied knowingly using performance-enhancing drugs.
U.S. District Judge Susan Illston said the test results –
urine samples that are positive for steroids – are inadmissible because
prosecutors can't prove conclusively that they belong to Bonds. The judge
also barred prosecutors from showing jurors so-called doping calendars that
Bonds' personal trainer, Greg Anderson, allegedly maintained for the slugger.
The judge said prosecutors need direct testimony from Anderson
to introduce such evidence. Illston said Feb. 5 she was leaning toward that
ruling.
Prosecutors couldn't immediately be reached to determine whether
they planned an appeal, which would delay the start of the scheduled March
2 trial.
Prosecutors allege Anderson collected the urine samples and
delivered them for testing to the Bay Area Laboratory Co-Operative.
Anderson's attorney said the trainer will refuse to testify
at Bonds' trial even though he's likely to be sent to jail for contempt
of court.
He already served a year in prison for refusing to testify
before a grand jury investigating Bonds and his use of performance-enhancing
drugs.
During a September 2003 raid, federal investigators seized
the positive test results that they allege belong to Bonds along with 21
other blood and urine samples that tested negative.
Prosecutors wanted to use all the tests to show that Bonds
was a knowledgeable steroids consumer because he was a frequent customer
of BALCO, the center of a massive sports doping ring.
But the judge said that without Anderson's testimony, the
tests could not be introduced at Bonds' trial, scheduled to start March
2. Anderson is alleged to have delivered Bonds' blood samples to BALCO after
the slugger's personal surgeon, Dr. Arthur Ting, drew the samples.
Prosecutors said the three key tests show positive results
in 2000 and 2001 for the steroids nandrolone and methenolone. The samples
themselves do not identify the source, but prosecutors said business records
seized in the BALCO raid tie Bonds to the positive tests.
Prosecutors had hoped to present the positive tests to the
jury by having BALCO's former vice president, James Valente, testify that
when Anderson handed him the urine samples, the trainer said they belonged
to Bonds.
But the judge noted that Valente told a grand jury he changed
a label on one of the tests from "Bonds" to "Anderson"
at the trainer's request, making the lab's testing suspect.
"Valente testified before the grand jury that on at least
one occasion, he mislabeled a sample," the judge wrote. "In light
of this evidence that on occasion BALCO employees tampered with the labels
of samples, the court cannot find that the requisite guarantees of trustworthiness
are present in this case."
Prosecutors still have a fourth test showing Bonds used steroids
that they will be allowed to show a jury. 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 drug THG, which they said turned
up positive.
Bonds' lead attorney, Allen Ruby, didn't return a telephone
call late Thursday night. But other attorneys on Bonds' legal team have
said that the MLB positive test jibes with the player's grand jury testimony
that he took substances he later determined were designer steroids supplied
by his trainer without explanation.
The ruling wasn't a complete loss for prosecutors. The judge
said that they could 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 the recording, it also appears as if Anderson is boasting about injecting
Bonds with a steroid designed to evade detection at the time.
"But the whole thing is," Anderson said, according
to a government transcript, "everything that I've been doing at this
point, it's all undetectable."
The judge barred prosecutors from playing the portion of the
recording where Anderson appears to discuss his strategy for helping Bonds
beat MLB's drug testing program in 2003.
"The government has not established that it was a criminal
or civil offense in 2003 to help athletes evade detection by professional
sports associations," the judge ruled.
Finally, the judge said she will allow Larry Bowers, the medical
director for the United States Anti-Doping Agency, to testify about side
effects associated with use of performance-enhancing drugs. Bowers submitted
a statement of his expected testimony that said side effects include "an
increase in the size of one's head or skull, jaw, hands and fingers, and
feet and toes, as well as improved eyesight."
