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Posted: Thursday February 5, 2009 7:43PM; Updated: Friday February 6, 2009 10:54AM
George Dohrmann George Dohrmann >

Bonds' prosecution suffers setback

Story Highlights

U.S. District Judge Susan Illston is inclined to exclude key BALCO evidence

Without testimony of Greg Anderson, the government faces an uphill battle

Illston will issue a formal decision on the evidence discussed at a later date

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Barry Bonds is charged with lying to a grand jury in 2003 when he said he never knowingly used performance-enhancing drugs.

SAN FRANCISCO -- The federal judge presiding over the perjury trial of Barry Bonds wasted no time Thursday in letting her feelings be known on the admissibility of some key evidence and seems poised to deliver a blow to the government's case against the former San Francisco Giants slugger.

A few moments after Bonds entered the courtroom in a tan suit and sat a rectangular table with his horde of lawyers, U.S. District Judge Susan Illston said that her "preliminary" thoughts were to exclude results of blood and urine tests the government says were seized from a BALCO raid and show that Bonds took steroids. She also intimated that she would rule in Bonds' favor in regards to calendars and ledgers seized from the residence of Greg Anderson, Bonds' former trainer, which outline a doping regimen.

"If nobody testifies to them allegedly being related to the defendant, I don't think the hearsay exceptions get them into evidence," she said in regard to the calendars. She made a similar statement regarding the three test results, saying that the ability of the government to have someone testify that blood and urine tested was indeed Bonds' is "the linchpin of all these records."

Illston's comments reinforced a longstanding opinion about the government's case: without the testimony of Anderson, who in addition to acting as a trainer was a longtime friend and his go-between with BALCO, the government will have a hard time proving Bonds' knowingly took steroids. Illtson made this point repeatedly (without mentioning Anderson directly), saying that evidence would be admissible if the government could provide testimony connecting it to Bonds. Since Anderson is the lone person who could provide that testimony, and considering that he spent over a year in jail rather than testify against Bonds, it seems unlikely the government will procure his cooperation before the trial, scheduled to start March. 2.

Outside the courtroom in San Francisco, after Bonds, 44, exited in a black SUV, his lawyers struck a cautiously optimistic stance while speaking to a group of reporters. Prosecutors left briskly, although the day was not a total defeat. Illston did not bring up a fourth positive test from 2003, which was conducted by a lab used by Major League Baseball and later seized by the government. It would seem that the chain of custody issue would not be a concern with that test. Also, Illston appeared open to allowing into evidence a secretly-taped conversation between Anderson and Steve Hoskins, Bonds' former personal assistant, from 2003, in which the word "steroid" is never uttered but the conversation deals with Anderson injecting Bonds.

Illston's formal ruling on the motions is expected in the next few days.

The loss of the calendars seized from Anderson's home could be a more significant blow to the government's efforts than the loss of the positive tests seized from BALCO, since the test from Major League Baseball would show he used performance-enhancers. The government planned to call former teammates of Bonds who were also clients of Anderson's and for whom he also kept calendars. The introduction of doping calendars for those players (Illston must still rule on their admissibility.) but not Bonds, would beg the question: Where is Bonds' calendar? It could support the defense's notion that while Anderson might have been up front with those players about what they were taking, he treated Bonds differently. Thus, Bonds was telling the truth when he testified in 2003 that he didn't know the substances Anderson gave him were steroids.

Late in the hearing, which lasted 78 minutes, Bonds' defense team raised the issue of a government report investigating the disappearance of some money seized from Anderson's home during a raid. No wrongdoing was found and prosecutors agreed to turn over the report. Getting the report on the record appeared to be an effort to muddy the name of Jeff Novitsky, the DEA agent who led the BALCO investigation and is expected to testify.

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