Law geek corner: considering Barry Bonds’ obstruction conviction

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I know a lot of you are sick of this, but there are a bunch of lawyers who hang around here too, and this is for them.

It’s an article over at The National Law Review, considering the curious nature of the Barry Bonds conviction for obstruction of justice on a question that he ultimately answered.

This passage — analyzing what will probably be the controlling precedent when Bonds appeals — pretty much sums up the problem I’ve had with the Bonds prosecution since the day his indictment was issued:

The Court also noted that nonresponsive answers are a predictable and perhaps unavoidable part of the adversary system. Witnesses who are nervous may misunderstand a question or be unresponsive for other innocent reasons. And hostile witnesses with something to hide may be expected to be deliberately evasive.

The remedy, the Court concluded, lies not in a subsequent perjury prosecution but in an alert examiner who detects the unresponsiveness and persists with follow-up questions. The burden is on the questioner, the Court held, to “pin the witness down.” The perjury statute is not to be invoked “simply because a wily witness succeeds in derailing the questioner — so long as the witness speaks the literal truth.”

Whatever you think of Bonds or the verdict the jury came to on his perjury counts, the outcome here is troubling. Not because of what it means for Bonds, but because of the precedent it sets for the grand jury system itself. A system which this very prosecution was supposed to be protecting in the first place.

If you’re a prosecutor, and a witness gives you an evasive answer, everything in your legal training and experience should compel you to pin the witness down and get him to that point — as the article notes — where he either (a) must answer the question; or (b) commit perjury.  Therein lies the very essence of witness examination and no lawyer who has any litigation experience can deny this. Indeed, it’s so pervasive that it often seeps into one’s home life and results in one’s wife yelling “don’t you DARE lawyer me right now!” but that’s a topic of another conversation and/or your divorce proceeding.

But now, in light of the Bonds case, lawyers have a new option:  realize that the witness is not being responsive and … ignore it.  Let it go. Let it hang out there and, if you can’t get the guy on any of the substantive stuff you’re going after, hey, you got a tailor-made obstruction of justice charge. Just point to the transcript and say “look how evasive this guys is being!”  Even if you’e ineptitude is what allowed him to get away with being evasive.

As I said when the verdict went down, it’s really, really hard to get a judge or even an appellate court to overturn the result reached by a jury (as opposed to having things overturned on a pure question of law).  But if ever there was a case that calls for it, this is it. Because while lying witnesses are a problem for the criminal justice system, lawyers playing games is way worse.

Note: The article is written by Randall D. Eliason, a former chief of the Public Corruption/Government Fraud section of the D.C. U.S. Attorney’s Office and current white-collar criminal law professor at George Washington University Law School.  I am a GW Law alum myself, but Eliason wasn’t there back when I was. No, the two main crim professors were (a) woman who literally cheered out loud with “whoop-whoops!” when our class sat and watched the O.J. Simpson murder verdict live; and (b) a man who got on 60 Minutes by arguing that criminal juries should, as a rule, ignore the facts and law in a case and commit nullification when poor and underprivileged people are on trial.  So, yeah, I think the quality of the faculty has improved a bit in the past 16 years.

Aaron Hicks to go on the disabled list with an oblique injury

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Yankees outfielder Aaron Hicks left Sunday’s game against the Rangers after four innings due to soreness in his right oblique. After the game, Hicks said he expects to go on the 10-day disabled list and miss the next three to four weeks, MLB.com’s Bryan Hoch reports.

Hicks was 1-for-2 with a single before departing on Sunday. He entered the game batting .288/.397/.515 with 10 home runs and 37 RBI in 198 plate appearances. It is by far the best season of his career.

Jacoby Ellsbury is on his way back from a concussion, so the Yankees will only have to bridge the gap in center field for a week or two. Mason Williams could draw some starts in center field in the meantime.

Report: Phillies making Maikel Franco available in trade discussions

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Nick Cafardo of the Boston Globe reports that the Phillies are making third baseman Maikel Franco “more than available” in trade discussions.

Franco, 24, is having an abysmal season after showing promise in 2015 and ’16. Through 289 plate appearances, he’s hitting .221/.280/.365 with nine home runs and 37 RBI. His hitting has tanked and his already below-average defense hasn’t shown any improvement.

It’s a bit surprising that the Phillies would be so eager to move Franco with his value about as low as it can go. Franco is also under control of the rebuilding Phillies through the 2021 season, so the team doesn’t have to rush into moving him. He will become eligible for arbitration for the first time after the season.

Furthermore, the Phillies don’t have an immediate replacement for Franco at third base. Andres Blanco would likely get everyday starts at the hot corner in the short-term, but as far as prospects go, there are no third baseman banging down the door. If the Phillies were to trade Franco, it would likely have to be in return for a young, talented third baseman who will be under team control for several more years.