Oklahoma Criminal Defense Blog

The prosecution of baseball home run record-holder Barry Bonds has been on hold while the government appealed a district court ruling that excluded evidence that the government must have considered important.  Urine samples that was collected by Bonds’ personal trainer, Greg Anderson, tested positive for drugs, and the government wanted to use it as evidence that Barry Bonds knowingly used steroids.  Now the district court’s ruling of exclusion has been affirmed by the Ninth Circuit Court of Appeals.

“Presumably, the government wouldn’t have delayed this case for a year and a half unless they thought it was very important,” Bonds’ lead attorney, Allen Ruby stated.  He will wait for the government’s next move toward trial, if the government still wants to take the case to trial.

The trial court in San Francisco ruled the urine samples were inadmissible.  Anderson reportedly had told BALCO vice president James Valente that the samples belonged to Bonds. The government intended to call Anderson as a witness, at least to identify the samples.   But Anderson told the district court that he was not going to testify against Bonds, that he would rather go to jail. Without Anderson to identify the samples, the courts ruled, the samples were not admissible.

The excluded evidence constitutes three of four samples from Bonds.  The fourth sample came from a Major League Baseball test.  This was supposed to be confidential and was collected from all players only to assist baseball determine whether it had a drug problem with its players.  The lab analyzed that sample and concluded Bond’s sample was negative for steroids, but federal agents seized the sample, had it retested, and the designer steroid THG was discovered.

Also ruled admissible by the trial judge a recording Bonds’ former personal assistant, Steve Hoskins, secretly made of a conversation with Greg Anderson in 2003, standing in front of Bonds’ locker.  In that conversation, Anderson discusses how he was helping Bonds avoid infection by injecting him in, rather than on just one spot, on different places on his buttocks.  Bonds testified to a grand jury that he never knowingly used performance-enhancing drugs and also testified no one but a doctor ever injected him.  The Department of Justice is prosecuting Bonds for perjury from that grand jury testimony.

The exclusion of the three urine samples is based on the hearsay rule.  Greg Anderson must testify where the samples came from.  He is not going to testify; therefore, they cannot be identified.  But Anderson’s statements to Valente are obviously an avenue the government would seek to adopt Anderson’s statements.

Hearsay evidence is the out of court statement of a witness when the statement is offered for the purpose of proving the truth of the statement.  The general rule is to exclude hearsay evidence.  However, the Federal Rules of Evidence, as well as the Oklahoma Evidence Code and probably every jurisdiction in the United States, lists a number of exceptions.  Federal Rule 804 lists hearsay exceptions in which the availability of the declarant is immaterial, Rule 805, in which the declarant is unavailable.  There is even a “Residual Exception,” in Rule 807, which allows admissibility for otherwise not described hearsay for statements “having equivalent circumstantial guarantees of trustworthiness,” with some conditions “if the interests of justice will best be served.”  Talk about leaning over backwards.

But the urine samples were excluded on the basis of lack of identification of the samples.  The appellate court found there was no indication Bonds exercised any control over Anderson in determining when the samples were obtained or to whom they were delivered or even what tests were performed on them.