A few years back, Keith Scherer contributed a chapter to Will
Carroll’s award-winning book, The Juice: The Real Story of Baseball’s Drug Problem. Keith has been a legal advisor to Baseball Prospectus on the legal issues surrounding Barry Bonds case, and we asked him to update you and us on what’s going on.
The Barry Bonds case is back in the news, and with the trial scheduled to begin next month it’s a good time to get caught up and flag some issues that will be important when the trial begins. What follows here is a broad-brush review of some of the items being discussed this week. I have tried to avoid legal jargon, and while I have tried my best to keep opinion out of it-if you ask two lawyers a question, you’ll get three answers-I have not entirely refrained from weighing in on some of the evidentiary issues for either side. Do things look good or bad for Bonds? It’s hard to say how the case will end, but the tide appears to be turning in his favor.
Where we are today: The perjury trial is scheduled to begin on March 2, 2009. This week the defense made its argument to the court asking the judge to keep some of the evidence out of the trial. Earlier this week, the judge made public the documents in relation to that request, including the request (motion) itself, the prosecution’s response, the defense’s rejoinder to the prosecution’s argument, and numerous supporting exhibits. What the judge is trying to do is determine what, under the law, can be used at trial. Her job is to figure out what’s admissible. However, something may be admissible in that it meets the minimum standards and yet still be insufficient to establish guilt beyond a reasonable doubt. That’s what it means if you hear the phrase, “it goes to weight, not admissibility.”
The purpose of the defense request: The defense is asking the court to keep the prosecution from using some evidence on the basis that the evidence is so untrustworthy, or so lacking in authenticity, that a jury should never even see it or hear about it. This is commonly known as keeping the prosecution from letting a skunk loose in the courtroom. Taken at face value, the evidence suggests that Barry Bonds was a regular user of performance-enhancing drugs, and that he knew he was doing it. If that evidence is given to the jury, there is a risk that the jury will use it against Bonds regardless of the legal or logical defects that evidence may have. Even though the defense would be free to attack the evidence at trial, they would rather try to get it kept out of the trial entirely. Once the evidence gets into the hearts and minds of the jurors, there is a risk that they will convict based on an overall impression of Bonds’s guilt, rather than the precise legal principles they are instructed to follow.
Other things the request is good for: In addition to limiting the evidence the prosecution can use at trial, the defense attorneys are getting a free chance to road-test their trial strategy. By rehearsing their attacks in front of the judge, the attorneys get a feel for the judge’s take on the strength of the government’s case. This could help the defense narrow or expand its attack at trial. The strength of the defense’s arguments could also influence the judge, consciously or not, in her rulings during the trial. The judge will follow the law, and no judge would admit to being swayed by emotion, but judges are human beings, and as a defense attorney you hope to persuade the judge that in terms of right and wrong your side should win. A judge can subtly steer a case with a ruling here or there for either side, and it never hurts to convince the judge that justice will be served by giving your side the close calls. Another benefit is that the defense will get a preview of how the government will respond to objections during the trial. By flushing out the prosecution’s strategy and tactics before trial, the defense can perfect its arguments by the time the trial actually occurs. And, as a purely mechanical concern, by raising motions before and during the trial the defense is raising issues that might establish a basis for appeal.
What the defense wants to keep out of the trial: Among other things, the defense wants to keep out drug test results, drug activity calendars, expert testimony about the side effects of PED use, testimony from players who used PEDs but don’t have personal knowledge of Bonds’s drug use, and an audio recording of Bonds’s trainer discussing his involvement with Bonds. Nearly all of the evidence is being challenged on the grounds that it is unreliable. Technically the defense is arguing that the evidence is hearsay, but keep in mind that hearsay comes into court all the time. You have head the phrase, “It’s all hearsay,” but not all hearsay is equally defective, and the rules allow what gets deemed to be reliable hearsay to be used. These are called exceptions to the hearsay rule. The defense is arguing that this evidence does not meet the standards of reliability provided in any of the exceptions.
The effect of the judge’s rulings: The judge’s rulings on these issues can have a significant impact on either side. These are vital evidentiary issues; if the judge allows all of the evidence to be used at trial, the defense’s only recourse will be to attack the credibility and authenticity of the evidence during cross-examination. The evidence has a lot of problems and the attorneys will have plenty to work with, but the fear is that by the time they get their turn, the skunks will already be loose in the courtroom. On the other hand, if the judge keeps the evidence out of the trial, the government’s case will be severely limited.
What the judge is likely to do: Based on some remarks made during the hearing this week, it’s likely that the judge will grant most of what the defense is asking for. The calendars might be reliable hearsay because they were kept as a part of Anderson’s regular business activity, but since Anderson refuses to testify, there will be no one to establish the necessary details about how he kept his records. The drug tests may have been performed correctly, but even if they were, there is no one to establish that the specimens attributed to Bonds are actually his. The government is not typically required to establish every link in a chain of custody, but at a minimum the prosecution needs to show the first and last link of the chain. Presumably, Bonds gave his sample to Anderson, who then handed it off. Without the testimony of Bonds or Anderson, there will be no one to establish the first link of the chain. It might be worthwhile to address what’s required to establish a valid chain of custody. Victor Conte has suggested to the press that in order to establish a legally sufficient chain of custody, the members of the chain needs to have a certain degree or license. In regards to Anderson and Jack Valente, he said that “neither of them has a degree or license that would qualify them to process such laboratory samples … there was no legal chain of custody.” First, it’s not clear what he means by saying they processed the samples. It would be more accurate to say they handled the samples. In fact, earlier in his remarks he did say that they only handled the samples. Second, while there does need to be a valid chain of custody, especially the first and last link, the people involved do not need to have a degree or license in forensic toxicology or any other field. The person who collects the specimen or who observes the urine go into the bottle or puts tape across the bottle cap does not need be a nurse or a forensic chemist. If the person has received the requisite training (in-house) and follows the protocol, his link in the chain of custody will be sufficient. When it comes to actually processing the samples, at many labs the people who are actually handling the samples and processing them for the test are not doctors, not experts, and may not even be college graduates. They need to be trained and they need to follow the established protocols, but anyone who is authorized to participate can do it. Any deficiencies in training or certification and most deviations from quality controls go to the weight, not admissibility, of the evidence.
The issue of whether Bonds looked and acted like someone who used PEDs: The judge has not indicated how she will rule on the issue of expert testimony. Essentially, the expert would be there to say that Bonds looked (big head, back acne) and acted (rage) like someone who uses performance-enhancing drugs, therefore he must have used PEDs. The prosecution will need to establish that its expert is qualified in the area he wants to testify about; that the testimony is based on a sufficient amount of data; that the testimony is founded on sound methods and principles; and that those sound methods and principles are being applied in this case. Simply put, the testimony needs to be based on sound science. Some factors the judge will want to consider may include the error rate for this kind of analysis, whether the theory can be tested objectively, whether the analysis has been subjected to peer review, and whether it is generally accepted as valid in the scientific community. Based on the filings released this week, the prosecution would appear to have an uphill climb. However, even if the judge allows the expert to testify (i.e., his testimony meets at least the minimum standards) the defense should have a wealth of ammunition for cross-examination and rebuttal. If he is allowed to testify, for the defense there is a risk that the expert’s testimony will be another skunk in the courtroom. For the prosecution it could be a two-edged sword: if the defense destroys the expert’s credibility in front of the jury, it could destroy the prosecution’s credibility at the same time.
There is other evidence: Even if the judge decides to keep these particular skunks out of the courtroom, the prosecution still has a decent chance of getting a conviction. There are at least three key pieces of evidence that would still be in play. First, there is the testimony of Kimberly Bell, who claims that Bonds admitted to her that he used PEDs. Second, Bobby Estallela reportedly will testify that he has first-hand knowledge of Bonds’s intentional use of PEDs. Third, there is a positive drug test from 2003 that has a solid chain of custody. Bell’s credibility will be attacked, and the defense will probably challenge Estallela’s memory and his ability to observe Bonds directly. If the jury believes either witness, that should be enough to get a conviction. Even if the jury thinks either witness is dishonest, the jurors can still convict Bonds if they think the witnesses are telling the truth about this one particular thing. As for the 2003 test, Bonds has explained the positive result as possibly being caused by his unknowing ingestion of the cream or the clear, substances that, he says, he thought to be balm or flaxseed oil. The government has to prove that Bonds knowingly ingested banned substances, not merely that they were present in his body, so the balm-and-flaxseed defense could work. However, in urinalysis cases the judge will routinely give the jury a “permissive inference” instruction, which would allow the jury to infer, based on the test result alone, that Bonds knowingly ingested the drug. In a case of this magnitude, angling for permissive inference should be a prosecutor’s last resort. If that’s what it comes down to, Bonds will have a good chance of being acquitted.
Ready-Fire-Aim: When I have written about this case before, I have been careful to note that the US Attorney’s Office rarely launches a prosecution without having enough to get a conviction. In general, the USAO moves to prosecute only when it has an overwhelming amount of good evidence. I had assumed we would see that kind of evidence at some point in the case against Bonds. Based on the materials made public so far, this might be the rare false start from the USAO.
However: It’s still too early to bury the case, because we don’t know exactly what Bell and Estallela will say, or how the jury will weigh their testimony, how the judge will rule on the defense’s motion, or what other evidence the government may have or get. Maybe the most important thing to remember, from a lawyer’s point of view juries are acts of God, because you just never know what a jury’s going to do.
Keith Scherer practices law in Chicago, and he has been a contributor to Baseball Prospectus since 2000. You can contact him by clicking here.