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)
Gonna mail this one in this morning. Partially because of the light slate of games yesterday, partially because of a late night for me but mostly because of the Dee Gordon news which has me thinking of a lot of other things I want to write about this AM.
It’s worth noting that the Braves won a game. It comes just ahead of a series at Wrigley against the Cubs, so the winning streak will likely last a single day, but the 2016 Braves have to take what they can get.
The Marlins had a notable night outside the Gordon news too, finishing off a sweep of the Dodgers, which had to make Don Mattingly happy. For what it’s worth, Gordon singled in a run and then came around to score in the seventh. His RBI tied it and the run he scored ended up being the one necessary for the Marlins’ margin of victory. That means nothing, but you know some jackwagons are gonna make a big deal out of that and I figured I’d get ahead of the jackwagons and note that, yes, Gordon and the Dodgers knew what was coming before it was announced because that’s how the appeals process works, but no, it makes no difference, because that’s how the appeals process works.
Anyway: Here are the rest of the scores:
Tigers 7, Athletics 3
Cubs 7, Brewers 2
Phillies 3, Nationals 0
Orioles 10, White Sox 2
Braves 5, Red Sox 3
Diamondbacks 3, Cardinals 0
Marlins 5, Dodgers 3
Pirates vs. Rockies — POSTPONED: In the early morning rain with a dollar in my hand. And an aching in my heart, and my pockets full of sand. I’m a long way from home, and I miss my loved one so. In the early morning rain with no place to go.
LOS ANGELES — Dee Gordon has been suspended 80 games by Major League Baseball after the Miami Marlins second baseman tested positive for a performance-enhancing drug.
Gordon tested positive for exogenous Testosterone and Clostebol, MLB said in a release after the Marlins’ 5-3 victory over the Los Angeles Dodgers on Thursday night.
The fleet-footed Gordon won the National League batting title by hitting .333 last season and signed a $50 million, 5-year deal with Miami in January. He’s made two All-Star teams in his six seasons and won the Gold Glove and Silver Slugger awards at second base last year.
Gordon, the son of former major league pitcher Tom Gordon, had a key hit in Miami’s win over the Dodgers on Thursday. He’s batting .266 with six stolen bases this season.
“Dee Gordon is a very important part of our team, and we all love him and support him,” Marlins president David Samson said. “That said, I don’t like or condone what he did. He is an important member of this organization and will be for many years to come. It’s a huge, huge disappointment to the kids, to our fans, to his teammates and to everyone in our organization every single day.
“He will be back 80 games from now, and he will be welcomed back to this organization. But in the interim period, we expect him, and we are positive that he will do everything that’s necessary to make it up to his fans, to his teammates and to this organization.”
Blue Jays second baseman Devon Travis underwent left shoulder surgery last September. MLB.com’s Gregor Chisholm caught up with Jays head athletic trainer George Poulis for updates on several injured players, including Travis. Here’s what Poulis had to say about Travis:
“He’s going to get some live at-bats with the extended team down in Florida on Friday. Big step for him, he’s very excited, he’s doing great, and we’re very optimistic, but no timeline right now on his return. We’re just going day by day, step by step.
“When you have something like that, it continues to heal even when you’re playing. We’re just trying to acclimate him and condition him to withstand all of the stress that he’s going to put on his shoulder … He won’t play in the field right now. We’ll mix that in, as well, but right now he’s just going to get some at-bats.”
The key phrase, of course, is “no timetable”. The second baseman’s rehab has gone slower than expected. Getting into some extended spring training games, though, signals progress.
Travis, 25, broke out last season, hitting .304/.361/.498 with eight home runs and 35 RBI in 239 plate appearances last season. The Jays have had Ryan Goins and Darwin Barney handle second base duties this year, but their aggregate .560 OPS is the worst mark in the American League.
We’re almost into May and outfielder Alex Rios remains teamless. MLB Network’s Jon Heyman reports that Rios has received offers, but he hasn’t accepted any yet because he’s seeking a job with a “significant role”. Ostensibly, that means a starting role or possibly a platoon role.
Rios, 35, was on last year’s championship-winning Royals team, but he hit a meager .255/.287/.353 with four home runs and 32 RBI in 411 plate appearances. It’s understandable if teams aren’t willing to gamble on him rediscovering his once-potent bat now that he’s in his mid-30’s.
Rios earned $11 million last year on a one-year deal with the Royals. Now, he may have to settle for a minor league contract. If Rios doesn’t receive a palatable offer, Heyman suggests he may retire.