SAN FRANCISCO – Lead BALCO prosecutor Matthew Parrella stood before the judge in the Barry Bonds perjury case Friday and in a wavering voice said the government was considering an appeal that would delay the trial for months.
"I need more than that," Judge Susan Illston said. "I need to know today."
A few hours later, the answer was clear – the government appealed Illston's earlier ruling to bar key evidence as hearsay, and the highly anticipated trial is almost certain to the delayed.
"It's a standard interlocutory appeal," said Chris Cannon, a San Francisco defense attorney. "The 9th Circuit will issue a briefing schedule and give the government 30 to 45 days to file a brief."
Legal experts said it would be at least six months before the case is heard by the 9th Circuit Court of Appeals unless it is expedited by the court.
Bonds' attorneys quickly filed a motion to dismiss the case. Illston did not immediately rule on it.
"Halting those proceedings, scheduled to begin on Monday morning, will result in a waste of considerable judicial resources already expended in the jury selection process," the defense motion said. "Furthermore, it will frustrate Mr. Bonds' interest in now putting this matter, alleging offenses occurring more than five years ago, behind him once and for all."
Later, Bonds' attorneys issued a joint statement that expressed frustration at the turn of events:
"Barry Bonds is innocent. 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. Instead of a trial, the government wants to prolong its six-year obsession with Barry. It's unfair to him, to the taxpayers, and to the judicial process. The government's strategy of delay shows what little confidence they have in their own case."
Prosecutors did not release a statement or speak outside the courtroom.
At the hearing, Illston had said, "It looks to me like [a stay of the trial would be] automatic. I'd be delighted to know that I'm wrong."
The morning hearing began with a subdued Greg Anderson, Bonds' former personal trainer, standing stiffly before Illston in a dark suit and confirming once again that he'd go to jail for a fourth time rather than testify against Bonds.
Illston narrowed her eyes and said that she expected to see him in her court next Wednesday – after the jury selection. "I will order you to testify," she said. "If you refuse, you will be in contempt. I will send you to custody."
Anderson replied in a whisper to the judge asking him whether he planned not to testify, "Yes, your honor."
Parrella then said the government might bring a criminal contempt charge against Anderson if he doesn't testify. However, the appeal changes the equation – Anderson should remain free until the 9th Circuit Court of Appeals hears the appeal.
Anderson's testimony is considered by legal experts as crucial to the government's case against Bonds, who faces 10 counts of perjury and one of obstruction of justice. Anderson is the only potential witness who could describe three positive steroid tests and doping calendars allegedly belonging to Bonds. Illston ruled last week that the tests and calendars are inadmissible.
After Anderson made it clear he won't testify, Parrella intimated the government would consider an appeal of Illston's ruling on the tests and calendars. Her anger was palpable. She spoke of the enormous expense to prepare for a trial that would draw national media attention, and the 90 jurors set to be questioned Monday.
Bonds' attorneys told Illston that they oppose any delay in the trial.
Now it looks like the all-time home run king is getting an extended walk. "If the government was confident in their case without Greg Anderson they'd go forward," Cannon said. "I don't see Bonds being tried during the 2009 baseball season."