The government has swung and missed again in its criminal case against baseball slugger Barry Bonds. Federal prosecutors charged the single-season home run record holder with perjury in a 2003 statement before a grand jury, during which he denied ever taking performance-enhancing drugs. With one judge dissenting, a panel of the U.S. Court of Appeals for the Ninth Circuit ruled that the district court was correct when it refused to admit evidence in the form of lab samples bearing Bonds’ name that tested positive for steroids.

The government attempted to connect those samples to Bonds through his former trainer, Greg Anderson. As the court related in its opinion, Bonds and Anderson knew each other from grade school and high school. When they reconnected years later, Anderson began to help Bonds with weight training and nutrition, and provided him with various dietary supplements. In the 2003 statement for which Bonds is being prosecuted, Bonds said that as he and Anderson were longtime friends, he trusted Anderson and didn’t believe that any of the supplements that Anderson provided him were harmful or contained steroids. The government contends that some of these substances did contain steroids and that Bonds knew it.

The lab test samples at issue before the Ninth Circuit were discovered when the government raided BALCO Laboratories in 2003 and seized blood and urine samples of a number of professional athletes that tested positive for steroids. According to the government, Anderson delivered certain of the samples to the lab and identified them as having come from Bonds. That, and other evidence collected in the raid, gave the government enough dirt on Anderson to indict him on various conspiracy and drug charges. Anderson eventually pleaded guilty to illegal steroid distribution and was sentenced to three months in prison.

The government then turned its attention to prosecuting Bonds, intending to rely on the BALCO lab test samples to prove that he committed perjury before the grand jury. But things didn’t go as planned. Strike one was when the government tried to get Anderson to testify that Barry Bonds gave him the samples and identified them as his own—testimony which is clearly admissible. But Anderson kept quiet and refused to testify and went to jail again, this time for contempt of court.

Strike two was when the government attempted to use the testimony of James Valente—a BALCO employee—who would have testified that Anderson gave him Bonds’ samples and identified them as such. In proffering Valente’s hearsay testimony, the government sought to rely on a slew of evidentiary exceptions, but the district court refused to apply any of them. On the eve of Bonds’s perjury trial, the government called a time out to allow an appeal to the Ninth Circuit.

On appeal, the government stuck to three exceptions: the residual exception (Fed. R. Evid. 807), the exception for authorized statements (Fed. R. Evid. 801(d)(2)(C)), and the exception for statements by an agent (Fed. R. Evid. 801(d)(2)(D)).

The government first argued that the residual exception applies because Anderson’s statements “almost” fell within several other hearsay exceptions and because Anderson was not available to testify. The Ninth Circuit disagreed, holding that “almost” is not good enough, and that “a near miss…was nevertheless a miss” and did not compel the trial court to give the Fed. R. Evid. 807 exception. The court also stated that Anderson’s refusal to testify is not exceptional at all, as noted by the fact that there is a separate hearsay rule that deals with the very issue of unavailable declarants and, in fact, prevents their testimony from being used in court.

The government next attempted to bring in Anderson’s statements through exceptions for authorized statements, arguing that Bonds had authorized the statements that Anderson made to Valente regarding the origin of the blood and urine samples. But the Ninth Circuit ruled again that the district court was correct in holding that the record failed to establish this particular authorization.

Finally, the government argued that because Anderson was testing Bonds’ samples, there was an agent or employee relationship between the two men. But two judges agreed that Anderson was an independent contractor for several reasons, including the fact that Bonds stated that he considered Anderson a friend, not an employee (the subjective intent of the parties is relevant in determining independent contractor status). Also, there was no control by Bonds over Anderson—in fact, Anderson asked for the samples and tested them on his own initiative.

In an 0-2 hole against Bonds, you might think the prosecutors would head to the showers but, instead, the government has opted to go forward with its remaining evidence. A new trial date is set for March 2011.