Ninth Circuit Ruling in Barry Bonds Prosecution

Couple days late on this, but here goes. Last Friday, a divided panel of the United States Court of Appeals for the Ninth Circuit affirmed the district court ruling that blood and urine samples seized from BALCO and purportedly belonging to Bonds were not admissible. I was interviewed by KCBS Radio in San Francisco on the ruling. The majority agreed that, absent evidence from Bonds trainer/friend/sycophant Greg Anderson (who refuses to testify) the government lacks admissible evidence linking the samples to Bonds; Anderson's statements to a BALCO employee were inadmissible hearsay. The court rejected arguments that Anderson was speaking as Bonds' agent on the matter of the samples or that Anderson had been given authority to speak about the source of the samples--either of which would have made the statements functionally Bonds' statements and therefore not hearsay. Alternatively, the court rejected the government's argument that the statements could come in under the residual exception to the rules. There was a sharp disagreement between the majority and dissent about how to understand independent contractor status and agency for purposes of the hearsay rules.

The ball is back in the government's court with three options: 1) Try to get en banc re-hearing in the Ninth Circuit, an option that might work, given the high-profile nature of the case; 2) Seek cert before the Supreme Court, incredibly unlikely because the Court does not take cases simply to correct one-off errors; or 3) Go back to the district court and determine whether it can win without the evidence. My guess is prosecutors believe the evidence is significant, which is why they appealed a pre-trial evidentiary ruling. What is not clear is whether they did this because the evidence is so central and essential to the case that they cannot prove the case without it or whether they appealed out of an excess of caution, recognizing that perjury prosecutions are hard to win in the first place, especially against a well-funded and well-represented defendant such as Bonds, thus they need all the evidence they can muster. I don't know the answer to that strategic question.