WHEN FEDERAL PROSECUTORS in San Francisco announced plans last week to appeal a judge's pretrial ruling in the perjury case against Barry Bonds, halting the proceedings only three days before the scheduled start, they confirmed what had been suspected for some time: Their case against the former Giants slugger is shaky.
The appeal is a legal Hail Mary, and the Ninth Circuit Court of Appeals is unlikely to overturn Judge Susan Illston's exclusion of some key evidence, including calendars and records seized from BALCO that allegedly show Bonds tested positive for steroids three times in 2000 and '01. When the trial resumes, the feds' predicament will probably be the same as it is today. There is some solid evidence to support a conviction, but prosecutors still won't have the cooperation of a crucial witness, Bonds's former trainer, Greg Anderson, who said last week that he would refuse to testify. That's a huge obstacle to overcome.
By choosing to further delay the start of the trial, the government also reinforced the belief held by some that the BALCO investigation was less an earnest effort to expose and shut down a large steroid ring than a Melvillean quest to nail Bonds and expose the taint on his baseball accomplishments. True or not, the government has left its judgment open to question. The delay extends a case that has already cost more money and taken more time than the prosecutions of the manufacturer (Patrick Arnold) and the distributor (Victor Conte) of the BALCO drugs combined. If found guilty, Bonds is unlikely to spend more time in jail than the four months Conte did, hardly a worthwhile return on the taxpayers' money.
Common sense says that Bonds lied when he told a grand jury in 2003 that he didn't knowingly use performance-enhancing drugs. It was not wrong for the government to charge him with perjury. But the lengths to which prosecutors have gone to cement their case have at times seemed excessive, most notably in their efforts to force Anderson to testify. Government officials threatened his mother-in-law with criminal prosecution relating to nebulous tax issues and even wired up an undercover agent who joined the gym where Anderson's wife is a personal trainer, hoping that she would drop the dime on her husband and Bonds in between leg lifts.
"Sometimes, from the government's standpoint, you make the decision to try an unpopular case," says William Keane, a former federal prosecutor now with the San Francisco firm of Farella Braun and Martel, which represented track coach Trevor Graham in his 2008 BALCO trial for lying to the feds. "As a federal prosecutor you are somewhat immune to outside influences. You have more authority and autonomy than most people realize, and your focus—especially this far into it—is solely on winning the case you think should be charged."
The evidence the government has today is not very different from what it has had all along. But prosecutors have made progress on one front. By strong-arming Anderson and dragging out the case, spending more time and tax money, they have started to turn Bonds into a victim in some circles. That's no small accomplishment.
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