Barry Bonds Convicted Of One Count Of Obstruction Of Justice

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.

Danny Espinosa reportedly skipped Nationals Winterfest because of Adam Eaton

WASHINGTON, DC - OCTOBER 13: Danny Espinosa #8 of the Washington Nationals celebrates after teammate Chris Heisey #14 (not pictured) hits a two run home run in the seventh inning against the Los Angeles Dodgers during game five of the National League Division Series at Nationals Park on October 13, 2016 in Washington, DC. (Photo by Rob Carr/Getty Images)
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According to Jorge Castillo of the Washington Post, Nationals infielder Danny Espinosa declined to attend the team’s annual Winterfest because of his dissatisfaction with management following their trade for outfielder Adam Eaton.

A source told Castillo that Espinosa’s unhappiness stemmed from a belief that the acquisition would jeopardize his starting role in 2017. With Eaton in center field, Trea Turner will likely return to his post at shortstop, leaving Espinosa out in the cold — or, as the case may be, on the bench. The move shouldn’t come as a big surprise to Espinosa, however, as Nationals’ GM Mike Rizzo spoke to the possibility of trading the infielder or reassigning him to a utility role back in early November.

Offensively, the 29-year-old had a down year in 2016, slashing just .209/.306/.378 with 24 home runs in 601 PA. Defensively, he still profiles among the top shortstops in the National League, with eight DRS (Defensive Runs Saved) and 8.3 Def (Defensive Runs Above Average) in his seventh year with the club.

Espinosa will reach free agency after the 2017 season.

Nick Cafardo: Red Sox should deal Pomeranz, not Buchholz

BOSTON, MA - SEPTEMBER 18: Drew Pomeranz #31 of the Boston Red Sox pitches during the first inning against the New York Yankees at Fenway Park on September 18, 2016 in Boston, Massachusetts. The Red Sox won 5-4. (Photo by Rich Gagnon/Getty Images)
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The Red Sox might be trying to move the wrong pitcher, according to the Boston Globe’s Nick Cafardo. Cafardo revealed that while the Sox have been trying to market right-hander Clay Buchholz, more teams would be interested in trades involving southpaw Drew Pomeranz.

The club appears reluctant to deal Pomeranz, especially because his price tag comes in at a cool $4.7 million to Buchholz’s $13.5 million in 2017. Those who have already expressed interest in the veteran hurlers, including the Twins, Mariners and Royals, also seem put off by Buchholz’s salary requirements as he enters his 32nd year.

Health could be another factor preventing teams from jumping to make trade offers, as Cafardo quotes an AL executive who believes the “medicals on both Pomeranz and Buchholz probably aren’t that great.” Neither pitcher suffered any major injuries during the 2016 season, though Pomeranz missed just over a week of play due to forearm soreness.

Pomeranz outperformed his fellow starter in 2016, pitching to a 3.32 ERA and career-best 9.8 K/9 through 170 2/3 innings with the Padres and Red Sox. He got off to an exceptionally strong start in San Diego, where his ERA dropped to 2.47 through the first half of the year before the Padres dealt him to Boston for minor league right-hander Anderson Espinoza. Buchholz, on the other hand, struggled with a 4.78 ERA and saw a decline in both his BB/9 and K/9 rates as he worked out a career-low 1.69 K/BB through 139 1/3 innings with the Sox.