A Contrary View

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.

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Comments

  1. Grant said...

    Sheesh, I’m just a simple history major who once took a legal history course focused on the use of primary sources through Constitutional Law (lots of free Supreme Court decisions there!) and I knew that the Ninth Circuit is ridiculously liberal. You’d think a highly-paid ESPN consultant/expert would be able to figure out what that means.

  2. Craig Calcaterra said...

    Munson relies on the argument that Anderson was Bonds’ agent, and that as his agent, he could say things to BALCO people, and that BALCO people could then testify about it as though they had first hand information from Bonds.

    I don’t buy this, because while Anderson may have been Bonds’ agent for certain purposes, I don’t think an argument could be made that he was his agent for the purposes of maintaining the drug tests, calendars, etc.  There is no evidence that Bonds asked Anderson to keep those records, or even knew they were being kept.  I think to admit this evidence on that theory is to stretch the agency exception beyond rationality.

  3. Eddie said...

    He’s wrong in fact, not just legal argument.  Kagan is awaiting confirmation (she’s had the hearing, no vote).  I don’t know who in the Solicitor General office gave the go-ahead, but I doubt Holder had anything at all to do with it.  I wish he would.

  4. Aaron Moreno said...

    Correct me if I’m wrong, but if you’re left to argue on the residual hearsay exception, you’re losing pretty badly. I bet they argued the evidence was more probative than prejudicial. Or maybe the evidence isn’t being offered for the truth of the matter asserted!

  5. Scott said...

    The tinfoil hat-wearing moonbat in me wants to say that ESPN has it in for Bonds and this article is some kind of wish-fulfillment on Munson’s part.

    While the cynical crank in me thinks this sounds a lot like pregame hype for a lopsided matchup. “Sure the Phillies are the favorites on paper, but you can never count those scrappy Royals out. Please, watch the game. Oh, please!” The storyline’s a lot more dramatic when the contest at least appears like it could go either way.

    On the legal end, I got nuthin’. I just draw pictures for a living.

  6. Rob said...

    Another law student here… I hadn’t bothered actually reading the decision on the evidentiary motions because every take I had seen was similar to Craig’s—that Judge Illston’s decisions were pretty straightforward and the government’s case was shot. But once I saw Munson’s opinion, I had to read the whole thing for myself.

    Craig is right, Munson is on crack. I really don’t see any way the government can win this appeal, especially given the Ninth Circuit’s ideological leanings (For the non-lawyers out there, the court hearing this appeal is notorious for being one of the most liberal in the country. Liberal courts tend to be very pro-defendant, especially in cases where there is a whiff of impropriety in the government’s actions.)

    I will grant Munson one point: the government lawyers WERE very clever in how they crafted their arguments on the hearsay exceptions to try to get the evidence in. I’m sure it was a fun intellectual exercise for the young lawyer who actually had to write the brief, but creativity alone does not make hearsay admissible.

    As the opinion states repeatedly, none of this (quite damning if admitted) evidence is admissible unless the government can prove it actually is what they say it is. The evidence has been so mangled and mishandled over the past 6 years—and was somewhat sketchy to begin with—that someone with direct knowledge HAS to authenticate it at this point. The only guy who can do that is Anderson.

    Anderson already sat in federal prison (not a very nice place to be) for a year over refusal to testify to the grand jury about Bonds. If a person does not crack after a YEAR in prison, during which he was forced to stand by helplessly while Federal agents tore his life apart and threatened to prosecute his wife and mother just to get to him… well, he’s probably not going to suddenly see the light and decide to testify. That leaves the Ninth Circuit little apparent choice but to uphold Illston’s rulings.

  7. Chris Simonds said...

    Craig,

    Do you think the feds would take this thing to trial just so Anderson could actually refuse to testify when called and then they could jail him again? Out of pure spite? Or would the jail time not be automatic and up to someone else? The way the government prosecutors have operated in this case, I wouldn’t put it past them.

  8. Craig Calcaterra said...

    Chris—I kind of doubt it. Trials are expensive, and while the feds have really tried to take it to Anderson, my impression of the motive was desperation for his testimony, not spite.

  9. Jack Marshall said...

    As a former prosecutor, I agree that the appeal is likely to fail, and that the prosecutors’ arguments are a stretch, to say the least.

    What stuns me is the sympathy in these comments for Greg Anderson! He’s obstructing justice, probably with a promise from Bonds to make it worth his while (Bonds’ lawyer more than hinted at this in a USA Today interview a while back.) All Anderson had to do was meet every citizen’s obligation to testify honestly when called before a Grand Jury. This guy’s a drug peddler and a felon, and his fate has always been in his own hands. Some hero: he helps Bonds get away with lying under oath. I’m not impressed or filled with sadness for his fate.

    Personally, I hope he gets sent to jail for contempt again. If he’s going to get a payoff from Bonds, he can really earn it.

  10. Craig Calcaterra said...

    Jack,

    My other posts on this make it clear: I don’t think Anderson is a hero, and it won’t bother me a bit to have him sent to jail again for contempt.  In this I make a distinction between his treatment at the hands of the feds and the treatment of his wife, mother-in-law, etc.  Upshot: do whatever is lawful to him to coerce his testimony; leave his family alone.

  11. Jack Marshall said...

    Craig—-I agree, absolutely, with that. (I’ve never detected any love for Anderson in your posts, by the way—just in the comments of an astonishing number of your readers.) The Sam Waterson School of prosecution is despicable, even when practiced by Sam Waterson.

  12. Pete Toms said...

    @ Jack.  Agreed, Anderson was a drug peddler and he was punished for those activities.  I have some sympathy for him, Radomski, McNamee et al as well as all the players caught.

    The reason I have sympathy is that the distrubtion of and usage of steroids in MLB was tolerated (if not encouraged) by owners, management, players, fans and media for many years.  Suddenly the rules changed and the likes of Anderson & Radomski who were welcome in MLB clubhouses were lepers.  Suddenly players were subject to federal investigation over their drug taking while their employers had accepted it for years. 

    Yes, on the whole, commenters here and at other blogs are sympathetic to Anderson.  I think in part it is due to the train wreck of the economy.  I think a lot of folks see the expense in dollars and resources allocated to this trial and can’t justify it, which leads to a pro Anderson kinda POV.

  13. Jack Marshall said...

    That confuses me even more, Pete. First of all, Anderson was also a steroid user and dealer in forums having nothing to do with baseball. Second, baseball teams don’t have the ability to suspend US Statutes no matter how hard they look the other way, and Anderson is a confessed law-breaker, not a baseball rule breaker…obeying baseball’s rules is Bonds’ responsibility, not Anderson’s. Bonds: “Hey Greg, old pal, get me some steroids! Baseball is making it easy for me to break the law and the rules! That means I am no longer responsible for my own dishonest actions, and can safely cheat without being regarded as a blot on the game!” Anderson: “Get your own steroids. It’s against the law. Better yet, why don’t you just take extra batting practice?”  That’s not what happened, I gather.

    As for the expense, that’s the double-reverse Clinton argument. (Fight every effort to get at the truth tooth and nail, and then complain that the investigation is taking too long and wasting tax-payers’ money.) If Anderson just testified as he is obligated to do as a US citizen, this case and prosecution would be long over, at a substantial savings to the Treasury. Blame law enforcement for not letting a crook and scofflaw derail a prosecution, but be sympathetic to the guy who’s causing the delay…and who was also was at the center of the underlying offense??? How does THAT compute?

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