Since prosecutors abruptly called Bonds' highly anticipated perjury trial in late February, the government has been appealing the district court’s refusal to admit into evidence drug-testing records that might suggest Bonds took performance enhancement drugs. District Judge Susan Illston ruled that the records are hearsay.
Central to the appeal being considered by the Ninth U.S. Circuit Court of Appeals is Greg Anderson, Bonds' loyal longtime trainer, who went to jail for refusing to testify in the centerpiece case of the seven-year-old BALCO investigation. Anderson was originally sentenced to three months in the scandal, but served more than a year for repeatedly declining to answer questions under oath about BALCO records pertaining to Bonds' alleged drug-test samples.
The government has argued in what legal experts call a long shot appeal that Anderson was an employee of Bonds. That official status might suggest that he was authorized to speak on Bonds’ behalf about his testing samples. It’s the key distinction of this high-stakes legal battle. If the appeals court agrees, the government might overcome long established rules against hearsay, permitting Bonds’ records and other hearsay testimony related to them to be allowed into the court without Anderson – and reviving the moribund perjury case.
But lawyers for Bonds say the relationship between the two men was like most Major League ballplayers and their trainers – close, but not formalized to the point of employment.
"Personal trainers are not typically employees of their trainees," wrote Dennis Riordan in a 68-page filing. "Mr. Bonds was a baseball player and he was not 'in business,' and Mr. Anderson’s work was not part of the regular business of Mr. Bonds."
The distinction may decide whether Bonds ultimately goes free. The defense argued Wednesday that while Anderson was paid, he was never an employee. "Because Anderson was at most an independent contractor, but not an agent or employee, his statements are not admissible," Riordan wrote.
Victor Conte, the founder of the Bay Area Laboratory Co-Operative, raised questions about the other linchpin of the government argument – that the handwritten ledgers allegedly showing the results of Bonds' drug tests were anything but ordinary business records, a classification necessary for the government's argument on appeal.
"They talk about the business records being kept during the ordinary conduct of business. That was not the case of all," Conte said. "The urine test samples they're talking about are the three (Bonds) positives. Five more were negative. I don't believe that all of these eight urine samples belonged to Barry Bonds. The physical dates written on the lab results don’t match the ledgers that were kept."
Conte also noted that all of the ordinary business records at BALCO were computerized. "These (Bonds records) were handwritten on accounting paper," he said. "They were not kept like other BALCO records."
One of the most intriguing parts of the Bonds steroids saga has been Anderson's steadfast refusal to testify against the player. While the erstwhile trainer Brian McNamee stowed away in his basement the syringes he claimed to have stuck in Roger Clemens(notes), Anderson has endured multiple stints in federal prison for his steadfast refusals to testify, along with raids last winter on his mother-in-law's residence by armed IRS and FBI agents in what appears to have been attempts to pressure him to testify.
Bonds' lawyers quoted at length from the former player's grand jury testimony about the nature of the relationship: "Greg didn't want any money from me. I felt guilty. I said: 'Dude, let me at least give you something.' So, his son goes to the same school my daughter goes to, a Montessori school. So at least let me give you some money to keep your kid in school. And we'll call it even, you know, and that's what we did."
Bonds' lawyers pointed out Wednesday that a grand juror asked a key legal question – and received an answer that appeared to harm the government's appeal.
Grand Juror: "Greg Anderson, would you consider him an
employ [sic] that works for you?"
Mr. Bonds: "No. I consider him as a friend."
It is that distinction that the appeals court must consider to decide whether Bonds will stand trial or go free. But don't expect a quick resolution: Prosecutors have two weeks to respond to the defense brief and oral arguments aren't expected for several months.