Before the federal government attempts to convince a jury that Barry Bonds lied under oath when he denied he knowingly used steroids, prosecutors face another challenge: proving the drug tests which were positive for steroids belong to baseball's home run king and that the test results are reliable and relevant to the perjury trial set to begin March 2.
Bonds' defense team is expected to press the issue and ask Judge Susan Illston to throw out the evidence in pretrial motions due Thursday. Illston will have to weigh evidence the government seized in its 2003 raid of BALCO against the following facts:
• No one saw Bonds urinate into a container when he provided samples that allegedly tested positive for steroids.
• Bonds never signed anything that authenticated the urine samples that tested positive for steroids were his.
• The protocols used in testing BALCO clients such as Bonds fell far below standards used when law enforcement conducts similar tests and handles physical evidence.
"The integrity of the samples from every step, A to Z, can be questioned," said Victor Conte, the BALCO mastermind and author of an unpublished manuscript entitled "BALCO" that details his ordeal.
The drug tests in question show the presence of steroids before Bonds was alleged to have taken the Clear, which was not illegal and not categorized as a steroid by the Justice Department.
The legal tussle that looms will center on a single catchphrase: chain of custody. That refers to procedures used to ensure physical evidence – in this case, Bonds' alleged positive drug tests – is not subject to tampering, misconduct or anything that raises questions about whether the evidence is what the government says it is.
Experts contacted by Yahoo! Sports shared varying opinions about how chain-of-custody issues might impact the outcome of the case. Lisa Griffin, a law professor at Duke University, predicted it will create difficulties for the government.
"It's not required that it be a perfect chain of custody," Griffin said. "Certain breaches in the chain are usually not fatal in terms of introducing something, and good enough will usually suffice.
"What's problematic is some of those [drug tests from BALCO] may have gone through the mail, which is a pretty dramatic break in a chain of custody. And I don't think that any of the standards or testing protocols were followed because it was in the private sector."
But Laurie Levenson, a professor at Loyola Law College in Los Angeles and a former prosecutor, said it's unlikely the judge will rule the drug tests are inadmissible. She said it's far more likely Illston will let the jury determine whether chain-of-custody issues undermine the value of the evidence.
"If it's not probably allegations of tampering, then it's really hard to get evidence excluded on chain of custody," Levenson said.
"Instead, this might just be a preview of coming attractions to what will be argued to the jury, which is you really can't have confidence in the test results because we don't have a complete chain of custody."
Quest Diagnostics, which handled drug testing for BALCO clients at its Las Vegas laboratory, works with the city coroner in testing that requires tight adherence to chain-of-custody protocol. Because BALCO's testing was considered clinical, however, it was up to BALCO rather than trained and certified officials to ensure the samples were properly labeled and sealed, according to two people familiar with the process.
Quest Diagnostics responded to a request for comment with a statement. "While it is our policy not to discuss cases that are in litigation, we can say that the drug testing business is highly regulated and Quest Diagnostics complies fully with all standard laboratory practices, including those intended to protect the confidentiality and integrity of the specimens, test results, and corresponding documentation," the statement read in part. "With all testing, we apply high quality specimen handling from pick-up through testing, storage, and reporting."
Officials from the lab will be expected to testify at the request of the government. Prosecutors will be expected to show why any perceived gaps in the chain of custody have no bearing on the evidence, according to Richard Friedman, a law professor at the University of Michigan.
"If all you've got is that Barry Bonds provided a sample and here's the piece of paper and you're not providing admissible evidence about the gap between Bonds' providing the sample and the piece of paper, that's not good enough," Friedman said.
Because the positive drug tests represent what might be the most compelling physical evidence in the case, chain of custody figures to become a fierce battleground. But Robert Weisberg, a law professor at Stanford University, said the issue might prove less important than expected for prosecutors trying to prove Bonds lied in front of a grand jury.
"They don't have to prove he used illegal drugs because that's not the charge," Weisberg said. "They have to prove he lied when he said he never used illegal drugs. I know those two are very hard to separate.
"If the chain of custody sucks completely but they find a statement in which he said to his friend, 'God, I used that stuff and I'm afraid to get caught,' that might establish [perjury] beyond a reasonable doubt. Even if they don't have independent, objective proof that he used the stuff."
Weisberg paused, considered that notion, then added, "It sure would help the prosecution to have strong chain of custody."
- Quest Diagnostics
- drug testing