SAN FRANCISCO – The judge in the Barry Bonds case said in federal court Thursday that she is inclined to exclude as evidence alleged positive drug tests and calendars unless there is direct testimony tying the tests to Bonds. The only person known to have direct knowledge of the tests, Bonds' personal trainer Greg Anderson, has refused to testify.
Judge Susan Illston expressed skepticism about other evidence as well, asking whether the Clear was legal when Bonds allegedly took the performance-enhancing substance. Yahoo! Sports reported Jan. 14 that the Clear was legal and not classified as a steroid until 2005, after the time Bonds is alleged to have taken it.
Furthermore, Illston ruled that the government had to turn over to the defense by Friday a report on a secret internal investigation into the conduct of government agent Jeff Novitzky. Bonds' lawyers learned of the probe, which was conducted by the Treasury Inspector General for Tax Administration (TIGTA) in 2003 and 2004, from a Yahoo! Sports report published two days ago.
Illston indicated that she probably would allow as evidence a taped conversation between Anderson and a former business associate of Bonds during which Anderson seemingly admitted to injecting Bonds with the Clear.
The evidentiary hearing was held to allow both sides to argue over the admissibility of key evidence against Bonds, who is charged with 10 counts of perjury and one count of obstruction of justice. An hour before the hearing began, Bonds entered a not guilty plea before a federal magistrate for the third time. He originally was indicted in November 2007, but the government revised the charges twice to fix legal technicalities and each time Bonds had to enter a new plea.
Illston is expected to issue a ruling in writing in the next several days, but she expressed skepticism from the bench about the admissibility of the drug tests, doping calendars and ledgers allegedly tied to Bonds.
"Absent testimony, the documents are not hooked up to this case," Illston said. As to the calendars, "I don't find that the hearsay arguments [that have been] argued will get them in."
The government’s predicament with the ledgers and calendars was apparent early on. The judge peppered prosecutor Jeff Nedrow with pointed questions, at one point telling him that he was “back in the same old soup.”
When Nedrow asserted that the documents should come in – without the testimony of Anderson – because he believed other witnesses would testify that Anderson was telling the truth about Bonds’ blood and urine, the judge interjected impatiently, "That’s not the question. Under the rules of evidence, does it come in? That’s the test."
Nedrow had also argued that evidence should get in because Bonds was vague in his answers to the grand jury. Bonds' lawyer Allen Ruby half-turned to the prosecutor and said, "Who was asking the questions [in the grand jury] that got the vague answers?" The answer, of course, was Nedrow.
Bonds' lawyer Chris Arguedas questioned why the BALCO court file was still under seal. Nedrow countered, "98 percent is not under seal. The only thing under seal is a few search warrants."
The U.S. Attorneys office previously wrote that grand jury transcripts in BALCO remain under seal, despite the lifting of the protective order last year: "This order does not direct the Clerk's office of this Court to unseal any previously-sealed materials, and previously sealed materials shall remain sealed subject to existing sealing orders."
Illston said she thought the entire file should be made public, and ordered the two parties to talk to one another.
Arguedas said: "I want 100 percent of it to be unsealed."
The hearing ended with Bonds' lawyers vigorously requesting the TIGTA report. They were informed Wednesday that prosecutors had appeared secretly before Illston in November on the matter.
Novitzky was a central witness for the government at previous BALCO trials in which the TIGTA report became an issue. It was turned over to Victor Conte and the other original defendants. It remains unclear whether the report was turned over in the Trevor Graham and Tammy Thomas case. Novitzky's testimony at the Bonds trial could be pivotal for the government. Legal experts say Bonds' attorneys could use the TIGTA investigation to attack Novitzky's credibility.
Nedrow told Illston that the TIGTA report exonerated Novitzky. Arguedas responded by telling the judge that the report concluded only that "solvability factors weren't present."
"We have serious questions about this," Arguedas said. "I don't think he should say he is exonerated. The reporting about this has been accurate in all respects."
Earlier in the hearing, Illston asked whether the Clear was illegal to distribute in 2003, when Bonds is alleged to have taken it. Nedrow responded by saying, "It was illegal. It was a misbranded drug that had not been through the clinical trials. It was arguably an anabolic steroid. In the indictment, we called it a steroid-like substance."
That statement contradicts the grand jury testimony of Novitzky and drug-testing expert Dr. Donald Catlin, both of whom testified that the Clear was not illegal in 2003.
If Illston recognizes that the Clear was legal and not categorized as a steroid, the prosecution would have difficulty proving that Bonds lied when he told a federal grand jury in December 2003 that he had never "knowingly taken steroids." Furthermore, the taped conversation between Anderson and Steve Hoskins was about the Clear, so even if that evidence is admissible it might not help prove that Bonds took steroids.
Losing the ledger and the drug test results could be devastating to the government's case, legal experts said. The prosecution alleges that the evidence, seized at the Bay Area Laboratary Co-Operative (BALCO) in 2003, shows that Bonds tested positive for anabolic steroids on three separate occasions in 2000 and 2001. On each occasion, the prosecution contends that Bonds tested positive for the steroid methenelone. On two of those three occasions, Bonds also allegedly tested positive for the steroid nandrolone.