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.

Chapman has trouble remembering convo with Cubs management about off-field behavior

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CHICAGO — Star closer Aroldis Chapman joined the Cubs on Tuesday, arriving to a mixed reaction in Chicago and saying he couldn’t remember what management told him about off-field expectations and behavior.

After Chapman’s awkward introductory news conference, Cubs president of baseball operations Theo Epstein insisted Chapman understands what the Cubs expect of him after an offseason domestic violence incident.

When the Cubs announced the trade with the New York Yankees on Monday, the team released a statement from Chairman Tom Ricketts saying they were aware of his 29-game suspension to begin the season under Major League Baseball’s new domestic violence policy.

Ricketts said he and Epstein talked by phone with Chapman before the deal was completed and “shared with him the high expectations we set for our players,” adding that Chapman was “comfortable” with them.

But when asked repeatedly about that phone conversation before Tuesday’s game against the crosstown White Sox, Chapman said through an interpreter that he couldn’t recall details because he was taking a nap at the time the call came in.

The question was asked several more times. A Cubs spokesman once asked the question himself to the interpreter, coach Henry Blanco.

“It’s been a long day,” Chapman said. “Trying to remember.”

Asked again several minutes later during the group interview if he could now remember what Ricketts said, Chapman shook his head.

“I still don’t remember,” he said in Spanish.

Epstein called it a misunderstanding and that Chapman was “pretty nervous” as he faced seven cameras and more than two dozen reporters.

“I was on the call, Tom was on the call, Aroldis was on the call and Barry Praver, his agent, was on the call. It happened and it was real,” Epstein said before the Cubs’ 3-0 loss to the White Sox.

Chapman was accused of choking his girlfriend and firing eight gunshots in the garage of a Florida home in October. The woman later changed her story and no charges were filed.

“You learn from the mistakes that you make,” Chapman said.

The case caused the Los Angeles Dodgers to back out of an offseason trade for Chapman. Cincinnati eventually traded him to the Yankees, and after his suspension, the 28-year-old Cuban converted 20 of 21 save chances for New York.

The Cubs have long boasted of stocking their roster with high-character players, helping earn the “lovable losers” label they’ve carried for decades since their last World Series title in 1908.

But the Cubs (59-40) have retooled their roster under Epstein and have the best record in the major leagues despite Tuesday’s loss in which Chapman didn’t pitch. Chapman, who threw a 105 mph fastball last week, fills perhaps the team’s largest hole as he replaces Hector Rondon as closer.

The Cubs sent four players to the Yankees, including shortstop prospect Gleyber Torres, to get one of the game’s top relievers. Epstein said they wouldn’t have made the deal if not for the phone call he and Ricketts had with Chapman.

“Tom laid out the exact same standards that he lays out to everyone in spring training,” Epstein said. “He said, extremely clearly, `Look, Aroldis, I tell all the players this in spring training and it’s important you hear it and I need to hear from you on this. We expect our players to behave. We hold our players to a very high standard for their behavior off the field. And we need to know you can meet that standard.’

“Aroldis said `I understand. Absolutely, I can.'”

The Cubs activated Chapman before Tuesday’s game and designated left-hander Clayton Richard for assignment.

Reaction to Chapman’s acquisition in Chicago has been tepid. While there were supportive fans on talk radio, the Chicago Tribune carried a front-page column Tuesday criticizing the move. The back of the Chicago Sun-Times tabloid read “Spin City” over a picture of Epstein.

Chapman said he expected a “good reaction” from Cubs fans. He was also asked during the 20-minute meeting with reporters in the visiting dugout at U.S. Cellular Field if we would consider working with organizations looking to prevent domestic violence. Chapman said no.

Cubs manager Joe Maddon defended Chapman.

“He did do a suspension, he has talked about it, he’s shown remorse,” Maddon said. “Everybody else has the right to judge him as a good or bad person. That’s your right.

I want to get to know Aroldis. I think he could be a very significant member and he’s got the potential, yes, to throw the last out of the World Series. And if he does, I promise you I will embrace him.”

Report: Padres working on trading Andrew Cashner

ST. LOUIS, MO - JULY 21: Starter Derek Norris #3 of the San Diego Padres pitches against the St. Louis Cardinals in the first inning at Busch Stadium on July 21, 2016 in St. Louis, Missouri.  (Photo by Dilip Vishwanat/Getty Images)
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Jon Morosi of FOX Sports and MLB Network reports that the Padres are working to trade starter Andrew Cashner. He notes that a deal may be consummated before he takes the hill for Tuesday’s start in Toronto against the Blue Jays. The Marlins, Orioles, and Rangers have had reported interest in Cashner.

Cashner is 4-7 with a 4.79 ERA and a 61/27 K/BB ratio in 73 1/3 innings. He missed over three weeks between June 11 and July 2 due to a strained neck.

The right-hander is earning $9.625 million this season and will be eligible for free agency after the season.