The U.S. District Court judge who will preside over Barry Bonds' perjury trial next month said Thursday her "preliminary thoughts" were to exclude evidence that Bonds tested positive for steroids three times in the months before his record-breaking 73-homer season of 2001.
Judge Susan Illston said in a San Francisco pretrial hearing attended by Bonds that she also will probably bar prosecutors from introducing evidence of doping calendars and ledgers from the former steroid-distributing Bay Area Laboratory Co-Operative (BALCO) that provided substances to Bonds' personal trainer, Greg Anderson.
Bonds, who pleaded not guilty in court to charges contained in a revised indictment against him, faces multiple counts of lying to a federal grand jury and obstruction of justice when he denied ever knowingly using steroids in his December 2003 testimony. Law enforcement officials had raided BALCO earlier that year.
Anderson will not testify in the trial, scheduled to begin March 2, his attorney said. Illston said she would need to hear testimony from Anderson linking Bonds to the testing to include the evidence on the drug tests at trial. "If there's no testimony to establish that, I don't think any of them work," the judge said.
Illston, meanwhile, did express an inclination to allow prosecutors to introduce a transcript of Anderson's alleged tape-recorded conversation in March 2003 with the player's former longtime friend and assistant, Steve Hoskins. On tape, Anderson discusses Bonds' injected use of undetectable "stuff" that will allow him to avoid testing positive in an upcoming Major League Baseball drug test.
Prosecutors urged the judge to allow the transcript in a court filing unsealed Wednesday, citing two U.S. 9th Circuit Court of Appeals rulings, and noting, "There is nothing -- except [Bonds'] fear of the truth -- preventing this defendant from calling Anderson to trial to testify."
However, Anderson's attorney and a former federal prosecutor who has watched the Bonds case develop say the government must overcome substantial legal burdens to introduce the Anderson-Hoskins transcript.
Mark Geragos, Anderson's attorney, said, "Nothing indicates it's a reliable or legitimate tape." Asked if that is Anderson's voice on the tape, Geragos cited "attorney-client privilege."
If Bonds is convicted, he faces as much as two years behind bars, but perjury prosecutions require compelling corroborative evidence, legal experts say.
"You want as much physical evidence, DNA, physical witnesses and recordings as possible," said Mathew Rosengart, a former federal prosecutor who works in the Los Angeles office of Manatt, Phelps and Phillips. "Corroboration is essential. I wouldn't say the exclusion of this evidence would make the case weak, but it could pose an evidentiary problem for the government and turn it into a he-said, he-said case, where Bonds' defense team will have more room to argue reasonable doubt."
The government still possesses significant evidence against Bonds, 44, who broke Hank Aaron's all-time home run record in 2007.
First, the government ordered the MLB-tested 2003 urine sample of Bonds re-tested after the discovery of the designer steroid distributed by BALCO, THG. Bonds' sample came back positive.
While Bonds claims he believed he was using an arthritic balm and flaxseed oil from BALCO, the government will call his former BALCO-client teammates with the San Francisco Giants, including Bobby Estalella, Marvin Benard and Benito Santiago, along with former Oakland Athletics players Jason and Jeremy Giambi to testify about what they knew in their own BALCO dealings.
Bonds' former mistress Kimberly Bell also is expected to testify about how the slugger's physical appearance and mood were altered by performance-enhancing drugs.
Ultimately, Bonds' three positive steroid tests before the 2001 season -- on Nov. 28, 2000; Feb. 5, 2001; and Feb. 19, 2001 -- may be left only as government evidence in the court of public opinion. Illston did not issue her admissibility rulings Thursday.
BALCO founder Victor Conte told The Times in an e-mail late Wednesday that he was troubled by the chain of custody in those tests, noting how the samples passed from Anderson to BALCO executive James Valente to an independent lab, identified only by numeric codes.
"I never knew of Barry's positives, and I have very serious questions about the record-keeping -- sometimes, the codes and dates and names didn't match," Conte said in a Thursday telephone interview with The Times. "Our routine business record-keeping was good, but this other, slippery-slope activity record-keeping was not.
"And even if the government submits quality-control documents supporting Quest Diagnostics [which tested the alleged Bonds samples], it's garbage in, garbage out if one link in that chain of custody is broken."
Chain of custody issues surrounded O.J. Simpson's not-guilty verdict, and have also complicated doping allegations against cyclists Lance Armstrong and Floyd Landis. The World Anti-Doping Agency code, for instance, requires a rigorous record of each time the sample is picked up and set down -- by whom, and when.
"The lack of a chain of custody is a serious deficiency and flaw in the evidence," said Bruce A. Goldberger, the University of Florida's director of toxicology.
Conte also speculated Bonds' early positive tests for the steroids nandrolone and methenolone could have come from a contaminated supplement or by the player's ignorance of "what pills he was taking."
"When you talk about meeting the reasonable-doubt standard, I don't think any of this evidence would meet it," Conte said. "This data and these documents are a nightmare for the government."
Just as the Anderson-Hoskins' transcript may be for Bonds. In one portion, the person identified by the government as Anderson says, "Everything that I've been doing at this point, it's all undetectable . . . you can't buy it anywhere."
"These are very important rulings," said Carl Tobias, a University of Richmond law professor. "Legitimate questions are raised by the introduction of certain pieces of evidence. [Illston] will have to apply the law under the rules of evidence, and she may have to think about it, digest it for some time."
The Associated Press contributed to this report.