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.

Mitt Romney’s sons are trying to buy a stake in the Yankees

TAMPA, FL - AUGUST 30:  Tagg Romney son of Republican presidential candidate, former Massachusetts Gov. Mitt Romney gives an interview during the final day of the Republican National Convention at the Tampa Bay Times Forum on August 30, 2012 in Tampa, Florida. Former Massachusetts Gov. Mitt Romney was nominated as the Republican presidential candidate during the RNC which will conclude today.  (Photo by Chip Somodevilla/Getty Images)
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Mitt Romney built his professional life in Massachusetts and was once the governor of the state. As such, it is not surprising that he has long identified as a Red Sox fan. So this has to be troubling to him from a fan’s perspective. From Jon Heyman:

The Romney family is bidding to buy a small stake in the Yankees months after their try for the Marlins stalled. If the deal goes through, it is expected to be $25 million to $30 million per percentage point and thought to be interested in one or two percentage points. The Yankees are valued around $3 billion or more.

The effort is being led by Mitt’s son Tagg, one of his brothers and their business partners. Mitt’s spokesman tells Jon Heyman that he has nothing to do with it personally. Tagg Romney is reported to have been planning a bid for controlling interest in the Marlins, but that has fallen through.

I find this interesting insofar as the M.O. for the Steinbrenners has, for years, been to buy out minority shareholders in the Yankees, not seek more. Indeed, when George Steinbrenner bought the Yankees back in 1973 he held just a bare controlling interest and there were a ton of silent partners, most of which were back in Ohio and knew Steinbrenner from his shipping business. I’ve personally gotten to know some of them over the years as there are a handful of them in Columbus and I crossed paths with them in my legal career. They have almost all been bought out in the past couple of decades. They still get season tickets and World Series rings and stuff. You can tell them by their personalized Yankees plates and the fact that, within the first ten minutes of meeting them, they will tell you that they once owned a piece of the Yankees but got pushed out.

In light of all of that it’s interesting that the Steinbrenners are once again accepting bids for small stakes in the team. Especially from someone whose interest in controlling the Marlins suggests that they do not consider it to be a mere vanity investment. Makes me wonder what the Steinbrenners’ long term plans are.

Max Scherzer still can’t throw fastballs

WASHINGTON, DC - OCTOBER 13: Max Scherzer #31 of the Washington Nationals works against the Los Angeles Dodgers in the fifth inning 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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The Nationals will be many people’s favorites in the NL East this season. Not everything is looking great, however. For example, their ace — defending NL Cy Young winner Max Scherzer — can’t even throw fastballs right now.

The reason: the stress fracture he suffered last August is still causing him problems and Scherzer is unable to use his fastball grip without feeling pain in his right ring finger. He will throw a bullpen session tomorrow, but will only use his secondary stuff.

Scherzer has not been ruled out for Opening Day — the fact that he is throwing some means that his timetable isn’t totally on hold — but you have to figure, at some point, not being able to air things out and use his heater will lead to some problems in his spring training routine.