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)

Video: Max Scherzer sets record with 13-strikeout outing

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Max Scherzer is a force to be reckoned with. The Nationals’ right-hander delivered a season-high 13 strikeouts against the Padres on Friday, locking down his fifth win and his fourth double-digit strikeout performance of the year.

More remarkably, it was also the 53rd double-digit strikeout performance of Scherzer’s career, tying Clayton Kershaw for the most 10+ strikeout appearances by an active major league pitcher. Chris Sale is a distant third, with 43 to his name, though he’s been making considerable strides to catch up so far this spring.

Scherzer took the Padres to task on Friday night, whiffing 13 of 31 batters during his 108-pitch outing. He started strong, catching Allen Cordoba swinging on a 1-2 count to start the game and keeping the game scoreless until Ryan Schimpf unleashed a home run in the fourth inning. That was the first and final run the Padres managed off of Scherzer, who retired 14 consecutive batters following the blast and came one out shy of a complete game in the ninth inning. (Fittingly, Koda Glover polished off the win with a final strikeout, bringing the total to 14 on the night.)

It’ll take more than one stellar start to advance Scherzer and Kershaw on the all-time list, however. Their 53-game record ranks 13th, about 159 games behind second-place Hall of Fame hurler Randy Johnson and a full 162 games shy of the inimitable Nolan Ryan.

Twins’ top prospect Nick Burdi will undergo Tommy John surgery

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Twins’ right-hander Nick Burdi is set to undergo Tommy John surgery on his right elbow, the team announced on Friday. Burdi made 14 appearances for Double-A Chattanooga before succumbing to a torn ulnar collateral ligament and is not expected to make his major league debut until mid-2018 at the earliest. A UCL tear doesn’t always require Tommy John surgery — less severe cases can be treated with platelet-rich plasma injections, for example — but Twins’ chief baseball officer Derek Falvey told the press that surgery was unavoidable as Burdi had sustained a “full thickness tear” in his elbow.

Entering the 2016 season, Burdi was widely considered a top ten prospect in the Twins’ system. His exceptional velocity and potent fastball-slider combo made him a fearsome relief option as he came off of his first season in Double-A Chattanooga in 2015. During the 2016 season, however, the 24-year-old experienced a significant setback after a bone bruise cut his season short in late July. Prior to Friday’s diagnosis, he appeared to be staging an impressive comeback with the Chattanooga Lookouts this spring, decorating his efforts with a sparkling 0.53 ERA, 2.1 BB/9 and 10.6 SO/9 over 17 innings.

It’s a tough break for the Twins, whose farm system was ranked 21st in the league by Baseball America. “Obviously he’s proven when he’s healthy he’s an absolute premium prospect, and the Twins are treating him that way,” Burdi’s agent, Matt Sosnick, told Mike Berardino of the Pioneer Press. “We just want to make sure everything we do ultimately leads to the goal of getting him back on the field as quickly as he can.”