honoluluadvertiser.com

Sponsored by:

Comment, blog & share photos

Log in | Become a member
The Honolulu Advertiser
Posted at 3:24 p.m., Saturday, February 28, 2009

MLB: Bonds thrust into legal limbo

By PAUL ELIAS
Associated Press Writer

SAN FRANCISCO — Baseball's home run king is jobless and apparently unemployable. His once peerless Hall of Fame credentials are tainted. Now, on the eve of resolving criminal charges that he lied under oath about performance-enhancing drugs use, the government has thrust Barry Bonds into a legal nether world with no end in sight.

The federal government on Friday put the brakes on Bonds' perjury trial, a brewing media spectacle that was to start Monday. Prosecutors had notified the exasperated judge that they would appeal her decision barring them from showing key evidence to the jury.

Now the case has shifted to the 9th U.S. Circuit Court of Appeals where government lawyers and Bonds' team of top-notch Bay Area barristers will fight in the coming months over whether the jury will see the results of three positive steroid tests allegedly linked to Bonds and so-called doping calendars. Also at issue is part of a surreptitious recording in the San Francisco Giants' clubhouse of Bonds' personal trainer apparently discussing getting advanced warning of Major League Baseball drug tests on Bonds.

Unlike California state judges, who must rule within 90 days on most matters before them or risk missing their paychecks, federal judges move at their own pace with no time limits placed on their deliberations.

That makes predicting how quickly — or slowly — the appeals court will act on the Bonds case a matter of conjecture. Legal analysts have said the appellate court could take as little as two months to more than a year to send the case back to U.S. District Court Judge Susan Illston, who would then need several more weeks or months to schedule and start another trial.

According to the latest figures available from the Administrative Office of the United States Courts, it took the 9th Circuit an average of 12.7 months in fiscal 2007 to decide criminal cases, slightly longer than the national average of 12.1 months. The 9th Circuit's performance in 2007 was an improvement over the average of 13.8 months in 2006 and 14 months in 2005.

"I know some are talking about this being decided in a few months," University of Richmond professor Carl Tobias said. "But I just don't think this is getting done in less than a year."

Bonds is accused of lying to a grand jury in 2003, when he denied knowingly taking steroids supplied by Anderson. He has pleaded not guilty to 10 counts of making false statements to a grand jury and one count of obstruction of justice.

Legal experts say one thing that Bonds has going in his favor during the appeal is that one of his six defense attorneys is appellate specialist, Dennis Riordan. Riordan wrote the motions that prompted Judge Illston to toss out the key evidence linked to Bonds' personal trainer Greg Anderson, saying it could not be introduced without his testimony.

"Dennis Riordan owns the 9th Circuit, he's had so many victories there," Golden Gate University law professor Peter Keane said. "The judges are almost writing the opinions in his favor the second he walks through the door."

The appeals court hears cases arising from federal trial courts in the nine westernmost states, Guam and the Northern Mariana Islands. It is comprised of 29 judges who run the political spectrum, though it has garnered a reputation as a liberal-leaning court and annually wins the dubious distinction of having the most cases overturned by the U.S. Supreme Court.

Three judges will be randomly assigned to decide the Bonds case, which could be slowed further if the panel decides it wants to hear oral arguments from the attorneys rather than deciding the case solely on written arguments.

It is the same court considering what to do with the names of 104 major league players who tested positive for steroid use in 2003. The test results of those players and every other Major Leaguer tested in 2003, including Bonds, were seized as part of the Bay Area Laboratory Co-Operative investigation that has ensnared Bonds.

Bonds initially tested negative for steroids, but the government says his urine sample seized as part of the BALCO probe later tested positive. It is the only positive drug test the judge will allow the jury to see, unless the government wins its appeal.

Illston on Friday chastised the prosecutors for springing their appeal at the 11th hour, noting that 90 prospective jurors had been summoned from throughout the Bay Area for the beginning of jury selection on Monday.

The judge said she wished she could start the trial on time, but reluctantly agreed with prosecutors that their appeal automatically and indefinitely halted the case in her court.

Prosecutors announced their decision to appeal after Anderson told the judge on Friday that he would refuse to testify, even after Illston promised to jail him for contempt of court if he did so. The government prosecutors received permission to appeal from the Office of the Solicitor General in Washington D.C., which had to certify that the rarely taken action was vital to the government's case.

"Rather than present the evidence to an impartial judge and jury, the government has chosen to appeal Judge Illston's correct and well-reasoned order," Bonds' attorneys said in an e-mail statement Friday night. "Instead of a trial, the government wants to prolong its six-year obsession with Barry."

Even before prosecutors decided to halt the Bonds case Friday, questions were mounting over the time and money spent pursuing the slugger.

Attorneys and legal analysts say it is impossible to come close to putting a dollar figure on the government's investigation and prosecution of Bonds, but they estimate the cost has easily soared into the millions.

"The question is not how much it cost," said defense attorney Jeff Bornstein, a former federal prosecutor in San Francisco. "It's a matter of what cases aren't pursued because of it."