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.

Cardinals walk off on controversial double by Yadier Molina

SAN FRANCISCO, CA - SEPTEMBER 15:  Yadier Molina #4 of the St. Louis Cardinals reacts after he was called out on strike against the San Francisco Giants in the top of the six inning at AT&T Park on September 15, 2016 in San Francisco, California.  (Photo by Thearon W. Henderson/Getty Images)
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Update (11:09 PM EDT):

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From unlucky to lucky, the Cardinals maintained their position in the National League Wild Card race with walk-off victory over the Reds on Thursday night.

The Cardinals went into the top of the ninth with a 3-2 lead over the Reds, but saw the game tied when Scott Schebler dribbled a two-strike, two out ground ball down the third base line. It seemed as if the baseball gods had turned their backs on the Cardinals.

In the bottom of the ninth against reliever Blake Wood, Matt Carpenter drew a one-out walk. Randal Grichuk then struck out, leaving all of the Cardinals’ hopes on Yadier Molina. Molina went ahead 2-0 in the count, then ripped a 95 MPH fastball to left field. The ball bounced high and over the left field fence for what seemed like an obvious ground-rule double. Carpenter motored around third base and scored the winning run.

The Cardinals poured onto the field in celebration and the umpires walked off the field. Manager Bryan Price wanted to have the play reviewed, but when he went onto the field, the umpires were nowhere to be found. Price chased after them but to no avail. As the Cardinals left the field and the stadium emptied, the Reds remained in the dugout. The Reds’ relievers were left in a bit of purgatory, standing aimlessly in left field after exiting the bullpen. Finally, the game was announced as complete over the P.A. system at Busch Stadium. The results are great if you’re a Cardinals fan, but terrible if you’re a Mets or Giants fan.

As Jon Morosi points out, the rules clearly state that the signage above the fence in left field is out of the field of play. The umpires got it wrong.

Price, however, also took too long to speak to the umpires. Per Derrick Goold of the St. Louis Post-Dispatch:

If this happened between two teams playing a meaningless game, it would’ve been a lot easier to swallow, but Thursday’s Reds-Cardinals game had implications on not only the Cardinals’ future, but the Mets’ and Giants’ as well.

Freddie Freeman’s hitting streak ends at 30 games

ATLANTA, GA - SEPTEMBER 28:  First baseman Freddie Freeman #5 of the Atlanta Braves hits a single in the sixth inning to extend his hitting streak to 30 games during the game against the Philadelphia Phillies at Turner Field on September 28, 2016 in Atlanta, Georgia.  (Photo by Mike Zarrilli/Getty Images)
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Braves first baseman Freddie Freeman went 0-for-4 during Thursday’s win against the Phillies, snapping his hitting streak at 30 games. It marked the longest hitting streak of the 2016 season. Freeman’s streak of 46 consecutive games reaching base safely ended as well.

The longest hitting streak in Atlanta Braves history belongs to Dan Uggla, who hit in 33 consecutive games in 2011. Tommy Holmes hit in 37 straight for the Boston Braves in 1945.

During his hitting streak, Freeman hit .384/.485/.670 with 11 doubles, seven home runs, 27 RBI, and 26 runs scored in 136 plate appearances. That padded what were already very strong numbers on the season. After Thursday’s game, Freeman is overall batting .306/.404/.572 with 33 home runs, 88 RBI< and 101 runs scored in 677 plate appearances.