A decision by federal prosecutors to appeal a key ruling in the Barry Bonds perjury trial could delay the trial for six months or more, a setback for the defense, legal analysts said Sunday.
Defense lawyers had the momentum going into trial, the advantage of a judge willing to throw out evidence that prosecutors said was key to their case and the refusal of a critical witness to testify against Bonds. Jury selection had been scheduled to start today.
U.S. District Judge Susan Illston, a highly regarded Clinton appointee, could even leave the case if President Obama elevates her to the U.S. 9th Circuit Court of Appeals. Illston is widely considered to be a candidate for the higher court, which currently has one vacancy and may be expanded.
Although no one knows how quickly she might be elevated, the “outside chance” that she could leave the Bonds case would be “an added bonus” for prosecutors, said Loyola law professor Laurie Levenson, a former federal prosecutor.
The delay also gives prosecutors more time to gather evidence that Bonds knowingly used banned performance- enhancing drugs. Bonds is charged with perjury and obstruction of evidence for telling a grand jury in 2003 that he never knowingly took steroids.
Although one former federal prosecutor said it would be possible to resolve the appeal within weeks, the process generally is time consuming, even with an expedited schedule. In the Bonds case, because no one is in jail, the appeals court is not under pressure to move swiftly, lawyers said.
Another analyst, UC Davis law professor Vikram Amar, said the appeals court usually moves slowly.
“Assuming the 9th Circuit agrees to hear the appeal at all, it could take months, even up to a year or more,” Amar said. “As important as it is to criminal defendants to have their cases tried in a timely matter, I would be shocked if it was something done in a matter of weeks.”
Prosecutors announced Friday they would appeal Illston’s ruling to exclude evidence of three allegedly positive steroid tests taken by Bonds’ former trainer and the trainer’s calendars that purportedly show dates when Bonds was given the drugs.
Greg Anderson, Bonds’ former trainer, is refusing to testify in the trial. Without him to tie the evidence to Bonds, Illston said the evidence could not be presented.
Anderson already has spent a year in prison for refusing to testify against his childhood friend, and told Illston on Friday he would continue to refuse. Illston said she would have to find him in civil contempt, which is used to compel someone to testify.
Civil contempt would require putting Anderson behind bars only during the course of the trial. Prosecutors could charge him with criminal contempt, which could involve a lengthy sentence. Illston has indicated that she believes that would be an unlikely result, but has not ruled it out.
Loyola’s Levenson said delaying the trial also might help prosecutors in picking a jury. The former Giants slugger is a local hero in San Francisco, the son of former Giants great Bobby Bonds and the godson of Giants legend Willie Mays.
“It is good to put some gap between when Bonds is a star and what he is now,” Levenson said.