SAN FRANCISCO – In the upcoming or soon-to-be-postponed perjury trial of Barry Bonds, everything hinges on the silence of Greg Anderson.
At 10:15 a.m. Friday morning, Bonds' former trainer is expected to stand before Judge Susan Illston while his attorney declares that, with all due respect, his client will not testify at the highly anticipated trial, set to begin jury selection Tuesday.
Anderson's faithful silence has withstood three separate civil contempt citations that landed him in jail in 2006 and 2007 for more than a year for refusing to testify before the BALCO grand jury. Pressure has been brought to bear on his wife and her family. In late January, Anderson's mother-in-law, who has been threatened with federal indictments on unrelated charges, had her home raided by 20 armed IRS and FBI agents.
Paula Canny, one of Anderson's attorneys, said in an interview with Yahoo! Sports that two factors figure in the trainer's silence. First, she said he was given a verbal promise under terms of his 2005 guilty plea in the BALCO case that he would not have to testify in future trials related to the case. Second, she said that if called to testify, he could contradict the government's lead witness – agent Jeff Novitzky – and place himself in jeopardy.
"Greg's conundrum is that if he testifies truthfully it contradicts what Novitzky said regarding the raid of BALCO and the raids of Greg and Nicole's house," Canny said. "Then he could be prosecuted for perjury."
For those reasons, along with his loyalty to Bonds and proven resilience to government pressure, no one expects Anderson to change his stance Friday.
That may put into motion a dizzying flurry of last-minute government legal maneuvers. Since Illston ruled last week that alleged drug tests and doping calendars tied to Anderson are hearsay and inadmissible at trial, the government's case appears handicapped without his testimony.
If Anderson's attorneys inform the court that their client remains steadfast in his refusal to testify, prosecutors will have a difficult choice.
They can go to trial without documents alleging steroid use by Bonds and a severely trimmed witness list. Or push forward with what experts say is a longshot legal appeal that would delay the trial for months.
"It surprises me a little that the decision on whether to seek an appeal is coming down to the eleventh hour," said Bill Keane, who defended the track coach Trevor Graham during his BALCO trial last May.
"They've known for months that Anderson has given no hints of changing his position on testifying, and they've known for a few weeks that the judge has been leaning heavily toward excluding this key evidence."
No one from the government has stated for the record that an appeal is even being considered. It would be an extraordinary move in what has already been an extraordinary case.
"They have to get a writ of mandamus to get it reviewed by the 9th Circuit," said Charles La Bella, a former U. S. attorney and chief of the criminal division for the Southern District of California who now practices criminal defense in San Diego. "They need approval from the Solicitor General in the Department of Justice to make the writ and file the appeal."
That first step could be difficult. Legal experts say the government is very cautious in giving such authorizations. First there is the legal component.
"They are probably desperately arguing to [the Department of Justice] to let them do this," La Bella said.
Whether or not the government wins a stay from the appeals court – and the Bonds trial is delayed for months if not a year – few predict success.
"I think Judge Illston's rulings are pretty clear. I don't think the 9th Circuit is going to overturn them," said Christopher Cannon, a San Francisco defense attorney with extensive experience in federal perjury cases. "She's letting some stuff in and keeping some stuff out, doing what judges are supposed to do, calling the balls and strikes."
If the trial goes forward next week, Anderson will likely remain a factor. Illston has made clear from the bench that the government will be severely limited about what it can say about Anderson in its opening statement. References by prosecutors to the trainer not testifying, or documents not coming into evidence, would come at the risk of a mistrial.
Even if Anderson's attorneys inform the judge Friday that he will not testify, he remains under a subpoena, and prosecutors are likely to call him as a witness. Illston has said that would happen outside of the jury. If Anderson refused again to testify, the government could drop him – or not.
Canny said the BALCO prosecutors could ask a grand jury to "consider whether Greg would be indicted for criminal contempt."
She said that threat could extend beyond the Bonds trial.
"[Prosecutor] Matt Parrella seems to hate Greg so much," said Canny. "That's what I worry about. Greg's got this jeopardy hanging over him."