ESPN’s legal expert Lester Munson comes down on the Bonds’ appeal quite differently than I do. Regarding the prosecution’s chances on appeal:
Their chances are good. Many legal experts were surprised at Illston’s rulings. The prosecutors offered clever and creative arguments for the use of their evidence. The major obstacle, of course, was personal trainer Greg Anderson’s refusal to testify against Bonds. If he had agreed to testify, the use of the evidence would have been simple and routine. But without Anderson’s testimony, the prosecution had problems in meeting the requirements of the rules that govern evidence in federal courts. Relying on a series of rules that allow evidence to be presented even though it is hearsay, the prosecutors seemed to have met the legal requirement for use of the evidence. Illston, however, disagreed. Was she correct? The higher court will decide, but it looks good for the prosecutors.
I have no idea why Munson thinks this and I wish he would have taken the time to explain why he does. The prosecutors’ arguments for admitting the test results and other BALCO records were that they were business records, that they fell under the co-conspirator exception to the hearsay rule, or, most forcefully, that they were subject to the residual hearsay exception. I won’t bore the non-lawyers with a full analysis of this, but I’ve read the briefs, and none of those arguments, especially the residual exception argument, were remotely convincing. Basically, they argued that the records, though hearsay, should be admitted because, well gosh darn it, they’re really good evidence that we want in this case. In light of these weak arguments, and in light of no one who can authenticate and speak about these documents with first hand knowledge, no, I do not agree that “it looks good for the prosecutors.” And that’s before we get into the political/philosophical predispositions of the 9th Circuit Court of Appeals, which favor Mr. Bonds.
Is this a significant development in the BALCO saga?
Yes. The decision to appeal shows that the administration of President Barack Obama will continue with the steroids enforcement policy that began under President George W. Bush. The prosecutors in San Francisco could not have filed this appeal without the approval of Eric Holder, the new attorney general, and Elena Kagan, the new solicitor general; so the decision to file the appeal was made at the highest level. Although many progressives have criticized the BALCO probe, it is now clear that the Obama administration will pursue steroids issues. The decision to appeal is a clear signal that federal steroids investigations are far from over.
I’m not necessarily buying this either. Yes, it’s possible that the Obama administration is going to keep things going just the way they’ve been going, but this appeal shouldn’t be taken as evidence of that. With no time left before what looked like a doomed trial, and with the judge barking at them, the prosecution did the only thing it could do to avoid an embarrassing loss at a time when steroids, thanks to A-Rod and a government leaker, are all over the news. No matter how Eric Holder feels about PED prosecutions, he’d be crazy to not want to avoid such a thing. Likewise, even if Holder was adamantly against PED prosecutions, he would not have simply pulled this case from his prosecutors in an abrupt fashion, because to do so really jerks around the people who have been working on the case so long, and those are people Holder needs to keep happy to run his department. Ultimately, we won’t know Holder’s approach to these cases until he’s given a chance to advance or sit on a new one.
Having had a few hours to think about it now, I still can’t imagine a different outcome on appeal, and if there is no different outcome on appeal, I can’t feature this prosecution going forward.