Exploring the sheer absurdity of the Bonds verdict

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Having slept on it, here’s one more thought about the Bonds verdict that simply blows my mind.

Yesterday when I reacted to the verdict, I noted the absurdity of Bonds being convicted on his rambling answer in “Statement C” as listed in Count 5 of the indictment. That “Statement C” was Bonds saying, in response to a question about receiving injections, that Greg Anderson was a friend of his and that Bonds was a child of a celebrity. It was four brief beside-the-point statements. And, importantly, Bonds did eventually say unequivocally that, no, he didn’t receive injections. Take that for what it’s worth, but it was a clear answer to a clear question.

I thought it was crazy that such a statement — which had nothing to do with Bonds’ steroids use and in no way actually prevented the prosecution from getting an answer to its question — could form the basis of an obstruction of justice charge. I had missed it the first time around, but apparently Bonds’ lawyers identified the absurdity of this during jury instructions too.  From the San Jose Mercury News’ play-by-play (go to the 9:31 AM update):

9:31 a.m.: Bonds lawyer strenuously objects to one jury instruction

Before the judge began instructing the jury, Dennis Riordan, one of Bonds’ lawyers, objected strenuously to the instruction on the obstruction of justice count against Bonds, which enables the jury to find him guilty based on four separate statements. Some of those statements appear loosely tethered to the allegations that Bonds lied to a federal grand jury in December 2003 about using steroids.

For example, one of the statements covers the following response to a question about whether Bonds had ever been given anything from trainer Greg Anderson that required a syringe.

“That’s what keeps our friendship,” Bonds replied in rambling fashion. “You know, I am sorry, but that–you know that–I was a celebrity child, not just in baseball by my own instincts. I became a celebrity child, with a famous father. I just don’t get into other people’s business because of my father’s situation, you see….”

Riordan argued that the jury could clear Bonds of allegations connected to steroids and injections and, under the instruction, convict him of a felony through that statement, at least in theory. Quoting Karl Marx and his famous statement that history repeats itself twice, first as tragedy and then as farce, Riordan said such a conviction would be “utterly a farce.”

The judge didn’t agree, of course. Nor did she agree with this over the past few years when she had the opportunity to strike that part of the charge and did not, despite striking many others from the indictment.  You’d have to ask her why she allowed this to remain, but it makes no sense that such a statement, on its own, could constitute obstruction of justice.

There is not a single case in the history of Anglo-American jurisprudence in which a witness, at some point, didn’t go off on a tangent that was at least momentarily non-responsive to a question.  As a lawyer, you’re trained to reel the witness back in and focus him or her on the question. In court, if it gets bad, you get the judge to order the witness to answer the question that was asked. In a deposition you rephrase or say “that’s nice, but that’s not what I asked, what I asked was …”  Indeed, getting a witness to answer the question asked when he doesn’t want to or simply is unable to is a basic skill every trial lawyer learns.

But apparently not in the Northern District of California. There, when a witness goes off on a tangent, the precedent is now set: you bring felony charges against him. And it doesn’t matter if he later did answer the question, like Bonds did, or if he cannot be found to have lied or have obstructed justice in any way apart from his brief tangent.

Man, I wish I knew back when I was practicing law that I could have difficult witnesses charged with felony obstruction. It would have made my life so much easier if I didn’t have to prepare good questions and work to elicit the information I sought through the application of trial advocacy skills.  Oh well. You live and learn.

(thanks to Moshe for the Merc’s play-by-play re: the jury instruction)

Must-Click Link: Do the players even care about money anymore?

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Yesterday I wrote about how the union has come to find itself in the extraordinarily weak position it’s in. The upshot: their leadership and their membership, happily wealthy by virtue of gains realized in the 1970s-1990s, has chosen to focus on small, day-to-day, quality of life issues rather than big-picture financial issues. As a result, ownership has cleaned their clock in the past few Collective Bargaining Agreements. If the union is to ever get back the considerable amount of ground it has lost over the past 15 years, it’ll require a ton of hard work and perhaps drastic measures.

A few hours later, Yahoo’s Jeff Passan dropped an absolute must-read that expands on that topic. Through weeks of interviews with league officials, agents and players, he explains why the free agent market is as bad as it is for players right now and why so many of them and so many fans seem not to understand just how bad a spot the players are in, business wise.

Passan keys on the media’s credulousness regarding teams’ stated rationales for not spending in free agency. About how, with even a little bit of scrutiny, the “[Team] wants to get below the luxury tax” argument makes no sense. About how the claim that this is a weak free agent class, however true that may be, does not explain why so few players are being signed.  About how so few teams seem interested in actually competing and how fans, somehow, seem totally OK with it.

Passan makes a compelling argument, backed by multiple sources, that, even if there is a lot of money flowing around, the fundamental financial model of the game is broken. The young players are the most valuable but are paid pennies while players with 6-10 years service time are the least valuable yet are the ones, theoretically anyway, positioned to make the most money. The owners have figured it out. The union has dropped the ball as it has worried about, well, whatever the heck it is worried about. The killer passage on all of this is damning in this regard:

During the negotiations leading to the 2016 basic agreement that governs baseball, officials at MLB left bargaining stupefied almost on a daily basis. Something had changed at the MLBPA, and the league couldn’t help but beam at its good fortune: The core principle that for decades guided the union no longer seemed a priority.

“It was like they didn’t care about money anymore,” one league official said.

Personally, I don’t believe that they don’t care about money anymore. I think the union has simply dropped the ball on educating its membership about the business structure of the game and the stakes involved with any given rule in the CBA. I think that they either so not understand the financial implications of that to which they have agreed or are indifferent to them because they do not understand their scope and long term impact.

It’s a union’s job to educate its membership about the big issues that may escape any one member’s notice — like the long term effects of a decision about the luxury tax or amateur and international salary caps — and convince them that it’s worth fighting for. Does the MLBPA do that? Does it even try? If it hasn’t tried for the past couple of cycles and it suddenly starts to now, will there be a player civil war, with some not caring to jeopardize their short term well-being for the long term gain of the players who follow them?

If you care at all about the business and financial aspects of the game, Passan’s article is essential.