Why the Evidence Against Barry Bonds Was Excluded

Don QuixoteContributor IFebruary 20, 2009

U.S. District Court Judge Susan Illston ruled Friday that much of the evidence seized during a 2003 raid on the Bay Area Laboratory Co-Operative (BALCO) is inadmissible for Barry Bonds’ March perjury trial. The evidence includes three urine samples given in 2000 and 2001 that tested positive for steroids.

Illston ruled that the evidence—urine samples, drug ledgers, and doping calendars—are inadmissible because they cannot conclusively be linked to Bonds. Greg Anderson, Bonds’ former trainer, allegedly kept the records and arranged for the urine tests, but he has refused to testify. Without his testimony, any claims that the evidence relates to Bonds amounts to hearsay.

The urine samples, which tested positive for the steroids methenelone and nandrolone, were vital to the government’s case that Bonds lied when he told a federal grand jury in December 2003 that he never knowingly used steroids. Bonds faces 10 counts of perjury and one count of obstruction of justice.

Judge Illston allowed a fourth positive urine test, given by Bonds in 2003 as part of anonymous Major League Baseball testing. The sample tested positive for the designer steroid THG, better known as The Clear. However, Bonds admitted to the grand jury that he used The Clear, as well as The Cream, claiming that he believed it was flaxseed oil.

Illston is also admitting the majority of a tape recording of Anderson talking to Steve Hoskins, a former business partner of Bonds. In the recording, Anderson says he provided Bonds with an undetectable substance and injected him several times. Another part of the recording, during which Anderson says he believed that he would receive a week’s notice before Bonds’ MLB drug test, was excluded.

Analysis: Why the Evidence Was Excluded

The excluded evidence was obtained during a 2003 raid on the BALCO lab, which allegedly provided designer steroids to Bonds and other athletes, including major leaguers Jason Giambi and Gary Sheffield, and sprinter Marion Jones.

Bonds’ legal team took issue with the chain of custody of the evidence. “That refers to procedures used to ensure physical evidence…is not subject to tampering, misconduct or anything that raises questions about whether the evidence is what the government says it is,” according to Yahoo’s Josh Peter.

BALCO had a lax protocol for authenticating and maintaining records of test samples. Furthermore, there were no witnesses when Bonds provided his sample and he never signed anything saying the samples were his. “The integrity of the samples from every step, A to Z, can be questioned,” BALCO founder Victor Conte told Yahoo.

The only man who could conclusively testify that the urine samples and other evidence relate to Bonds and weren’t tampered with is Anderson. However, he has chosen to serve prison time rather than testify, so prosecutors had to rely on testimony by others who were told by Anderson that the materials relate to Bonds.

Therefore, testimony supporting the legitimacy of the evidence amounts to hearsay. Further, Bonds’ legal team would not have had the chance to cross-examine Anderson about the evidence, a possible violation of the “confrontational clause,” according to Peter.

Bonds’ legal team asked Judge Illston on Jan. 15 to exclude the samples from the trial “unless the government can supply persuasive, admissible evidence demonstrating that a specific blood or urine sample belonged to Mr. Bonds.”

Illston chose to release the evidence to the public on Feb. 4 when she unsealed hundreds of pages of court documents detailing the federal government’s case against retired slugger Barry Bonds. A day later, she indicated that she would likely exclude the evidence.

Article originally published at findingDulcinea

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