Barry Bonds Convicted Of One Count Of Obstruction Of Justice

Exploring the sheer absurdity of the Bonds verdict

8 Comments

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)

Marlins acquire starter Dan Straily from the Reds

CINCINNATI, OH - SEPTEMBER 3: Dan Straily #58 of the Cincinnati Reds throws a pitch during the first inning of the game against the St. Louis Cardinals at Great American Ball Park on September 3, 2016 in Cincinnati, Ohio. (Photo by John Sommers II/Getty Images)
Getty Images
1 Comment

The Miami Marlins have acquired starting pitcher Dan Straily from the Cincinnati Reds. In exchange, the Reds will receive right-handed pitching prospects Luis Castillo and Austin Brice and outfield prospect Isaiah White.

For the Marlins, they get a solid starter who logged 191.1 innings of 113 ERA+ ball last year. Straily has moved around a lot in his five big league seasons — the Marlins will be his fifth club in six years — but it was something of a breakout year for him in Cincinnati. The only troubling thing: he tied for the league lead in homers allowed. Of course, pitching half of his games in Great American Ballpark didn’t help that, and Miami will be a better place for him.

Castillo is 24. He split last season between high-A and Double-A — far more of it in A-ball — posting a 2.26 ERA over 24 starts. Austin Brice is also 24. He pitched 15 games in relief for the Marlins last year at the big league level with poor results. He seemed to blossom at Triple-A, however, after the Marlins shifted him to the pen. White was a third round pick in the 2015 draft. He played low-A ball as a minor leaguer last year, hitting .214/.306/.301.

A mixed bag of young talent for the Reds, but stockpiling kids and seeing what shakes out is what a team like the Reds should be doing at the moment. For the Marlins: a solid mid-to-back end starter who may just be coming into his own.

Have Hall of Fame Voters actually made the PED thing More complicated?

Sammy Sosa
Associated Press
24 Comments

The story coming out of this year’s Hall of Fame balloting is that the BBWAA voters are finally easing their antipathy toward players with performance enhancing drug associations.

Jeff Bagwell — the subject of unconfirmed PED rumors — made the Hall! Pudge Rodriguez, who was named in Jose Canseco’s book and who had a . . . curious physical transformation around the time PED testing came online, made it on the first ballot! Barry Bonds and Roger Clemens, whose PED use was well-documented, saw their vote totals advance above the 50% mark, making their future elections look more likely!

It’s an interesting development, and one I’m obviously pleased with, but I wonder if the BBWAA’s new approach to PED guys, while far more forgiving than it used to be, has actually become more complicated in practice.

I ask this because I look way, way down the ballot and I still see Sammy Sosa scraping by with around 8% of the vote. I ask this because I still see Gary Sheffield at 13%. I ask this because when Mark McGwire was on the Today’s Game ballot in December, no one really stumped for him at all. I ask this because, even though Bagwell and Mike Piazza got in eventually, they still had to go through a lot of hazing first and I suspect, if they hit the ballot for the first time again tomorrow, the same arguments and delay would occur with respect to their cases.

In light of that, what I suspect has happened has not been a wholesale surrender of the anti-PED voters. Rather, I think it has been a transformation. One in which a moral test — did he use PEDs or not? — has been discarded as a threshold question and a scientific/physiological test — would he have been great even without the PEDs? — has replaced it. In essence, voters are becoming “PED discounters” in the aggregate. Making calculations as to whether a guy was, in their mind, a creation of PEDs or not.

Such an approach explains these new voting patterns as well as those in recent years.

  • Ivan Rodriguez may have been called out by Canseco and may have noticeably shrunk over an offseason, but his calling card was his defense behind the plate and voters, I suspect, have told themselves that such a thing is not PED-aided.
  • Bonds and Clemens may have been PED users, but each of them was undeniably talented and, if you discount for the PED use, hey, they’re still all-time greats.
  • Sammy Sosa’s case rests disproportionately on homers and, as everyone knows, PEDs = instant dingers, so no, he’s not gonna cut it.

And so on.

As I said, I’m glad that the strict moral test — did he use or not? — is losing its hold on Hall voters. But I do not think the “did PEDs make him who he was test?” is a good approach either. Baseball writers are in no better a position to assess the physiological and performance enhancements caused by pharmaceuticals than they are to be judges of character and morality. Given the identities of players confirmed to be PED users, the old eye test implicit in these cases is famously faulty (Neifi Perez, anyone?). The idea that PEDs only affect home run totals — and not, say, the ability for a player to take the abuse of the catcher position for 21 seasons — is crude and ignorant.

I suppose it’s naive to expect voters to completely disregard PEDs in their assessment of players. It’s a bell that cannot be unrung. But while we may, thankfully, be moving away from a moral test with respect to drugs, it’s been displaced by a scientific test that is no more reasonable in practice.