Judge Will Make Call in Ball Battle

SAN FRANCISCO -- Who owns No. 73?

Is it the Berkeley restaurant owner who first gloved it, or the Sacramento engineer who emerged from the heap shyly clutching the record-breaking home-run ball?

The civil trial to determine who has “unequivocal dominion and control” over the spheroid knocked into the stands last season by San Francisco Giant Barry Bonds opened here Tuesday with an exchange of brushback pitches by opposing lawyers.

In what promises to be a colorful two- to three-week trial before a judge who professes to know little about the American pastime, the two sides have produced lineups of witnesses ranging from a retired major league umpire to a man who viewed the Oct. 7, 2001, scramble for the ball from a kayak in the cove outside Pacific Bell Park.

The relevant legal precedents, both teams agree, lie in 19th Century “wild animal” and whaling law. Does the baseball, like a disputed fox in an 1805 New York Supreme Court case, belong to the hunter who stalked it or the neighbor who killed it? Does the valuable whale -- or Rawlings cowhide baseball, in this case -- go to the first to harpoon (catch) it or, the one who brings it under control?

The answers to these questions will help Superior Court Judge Kevin McCarthy, a baseball neophyte who says he has never been to Pac Bell Park, decide who liberates the baseball from the dark safe deposit box where it now resides in Milpitas, a city south of Oakland.

After three failed attempts to settle the baseball dispute before mediators, the court action began Tuesday with a flurry of pretrial motions filed just as a wave of baseball ecstasy swept San Francisco. On Monday, the hometown Giants clinched the National League pennant and won a berth in the World Series against the Anaheim Angels.

As lawyers marched into court in the disputed-ball case, newspaper vendors hawked the San Francisco Chronicle with a bold headline proclaiming: “Sweet!” In a nod to the 1951 call by announcer Russ Hodges when Bobby Thomson won the pennant for the New York Giants with a home run, the rival Examiner carried the headline: “The Giants Win the Pennant! The Giants Win the Pennant! The Giants Win the Pennant!”

It provided a stark, upbeat contrast to the dreary litigation on display Tuesday in the San Francisco courthouse.

In one motion filed Tuesday, attorneys for Alex Popov -- the 38-year-old restaurant owner who briefly snared the Bonds home-run ball, valued by collectors at $1 million, before losing it in the resulting melee -- asked the judge to prevent a veteran umpire from testifying.

In a pretrial declaration, 28-year major league umpire Jim Evans, called as a defense witness, invoked “The Official Baseball Rules” to contest Popov’s claim that he caught the ball. A video of the home run, Evans said, showed that “the pocket of [Popov’s] glove is still open, and the ball appears loose.”

In baseball argot, Evans said Popov “snow-coned” the ball. Adding a criticism familiar to any Little League veteran, Evans chided Popov for not using two hands to catch the ball. Popov’s attorneys argued that umpires and official baseball field rules have no place in the dispute.

“When is the last time you saw an umpire in the stands breaking up a fight?” asked Popov attorney Martin Triano.

Attorneys for Patrick Hayashi, the 37-year-old computer engineer who ended up with the ball, asked the judge to ban the other side from saying “catch” or “caught” to describe what Popov did when the ball arrived.

Hayashi attorney Donald K. Tamaki said his side will introduce scientific testimony proving that Popov did not hold the ball long enough to constitute possession. Key to the case is a videotape of the disputed catch by NBC cameraman Josh Keppel.

The video sequence shows Popov’s glove rising from the crowd with the ball wedged loosely in the pocket as he brings it down. What it does not show, contends Tamaki, is the ball falling from Popov’s mitt and bouncing several times on the concrete floor. That scene, Tamaki said, was witnessed by one of the kayakers who float in McCovey Cove outside the ballpark during Giant games.

After the initial footage of the ball in flight, the video shows a dog pile in the open arcade area overlooking the diamond on one side and San Francisco Bay on the other. Minutes later, a smiling Hayashi pops up, showing the baseball to the camera and those around him.

At that moment, according to Hayashi, Popov turned to him and said, “You’ve got it! Yeah! Dude!”

For Popov, who denies congratulating Hayashi, it is a question of civilized behavior versus the “law of the jungle.”

Popov, who traded in a $40 field-level ticket for a standing-room-only pass on the right field arcade that day, says in his lawsuit that he was “assaulted and battered” in the clump of crazed fans.

“This has really turned into a moral argument,” said Popov, an imposing 6-footer. “It’s about appropriate behavior. If you follow their argument it’s: Women and children beware.”

Popov’s attorneys say they will produce a witness claiming to have seen Hayashi -- 5-foot-5, 155 pounds -- elbowing and grabbing at the larger Popov.

Speaking of all the talk about assault and barbaric behavior, Hayashi said, “That’s just not in my character.” He has demanded a formal apology from Popov. One thing is certain, said baseball law expert Paul Finkelman, no matter what happens in the courtroom, the ball does not belong to the man who hit it.

“Barry Bonds committed an act of battery on that ball,” said Finkelman, a University of Tulsa law professor who has been called to testify. “He did everything he could to make that ball go as far away as he could.”