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.

Derek Norris signing with the Rays

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Yahoo Sports’ Tim Brown reports that Derek Norris is signing with the Tampa Bay Rays.

Norris was released by the Nationals nine days ago, made redundant by the Nats’ signing of Matt Wieters and by everyone sliding down a notch on the depth chart below him. Norris hit only .186/.255/.328 with 14 home runs and a .528 OPS for the Padres in 2016.

Still, there always seems to be a place for a backup catcher. For Norris that place is Tampa Bay.

The Braves are banning outside food. And they’re probably lying about why they’re doing it.

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Here’s a thing a lot of people don’t realize: there are a lot of ballparks that allow you to bring in outside food.

Not all of them, but a lot do. They don’t publicize it, obviously, because they want you to buy their expensive food, but if you go to the concessions policy page on most team’s websites, you can get the scoop. It often lists “soft-sided coolers” under “permitted items,” which is code for “yes, you can bring your own food in.” Some may specifically limit THAT to sealed plastic water bottles, but for the most part, if you can bring soft-sided coolers into the park, that means it’s OK to bring in grandma’s potato salad and a few sandwiches. They may check your coolers, of course, to make sure you’re not bringing in alcohol or whatever.

The Atlanta Braves have always allowed food into the ballpark. But thats going to change in shiny new Sun Trust Park. The AJC reports that the Braves have announced a new policy via which ticket holders will not be allowed to bring in outside food. Exceptions will be made for infant food and for special dietary restriction items.

Which, OK, it’s their park and their rules. If they want to cut out the PB&J for junior and force you to buy him a $9 “kids pack” — or if they want you to forego grandma’s potato salad to buy that pork chop sandwich we mentioned yesterday — that’s their choice. Everything else about the Braves new stadium has been about extracting money from fans, so why not the concessions policy too?

My beef with this is less about the policy. It’s about their stated reason for it:

The changes are a result of tighter security being put into place this season throughout the league, said the Braves spokesperson.

This, as the French say, is horses**t.

We know it is because not all teams are prohibiting outside food. If there are tighter security measures across the board, other teams are implementing them without the food restriction. Even the Yankees, who take security theater to extreme heights as it is, are still allowing fans to bring in their own food.

The Braves, I strongly suspect, are using these measures as an excuse to cut down on competition for their concessions. Which, like I said, go for it. Just be honest about what you’re doing and stop blaming “tightened security” for your cash grab.