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.

Aaron Judge’s record strikeout streak ends at 37 games

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For the first time in a month and a half, Aaron Judge went an entire game without striking out, ending his record streak at 37 games. Judge had an RBI single and three walks in Tuesday night’s 13-4 victory over the Tigers.

Judge went 1-for-4 with a solo home run and zero strikeouts in a 9-4 loss to the Brewers on July 7. Between July 8 and August 20, Judge would strike out in all 37 games, breaking the record previously held by Adam Dunn, who struck out in the first 32 games of the 2012 season. If one counted streaks extending into multiple seasons, Dunn held the record at 36 games as he struck out in his final four games in 2011 as well.

After Tuesday’s performance, Judge is now hitting .284/.417/.594 with 37 home runs, 81 RBI, and 93 runs scored in 525 plate appearances on the season. He’s had a particularly rough second half, as he entered Tuesday with a .684 OPS since the All-Star break, a far cry from his 1.139 OPS before the break.

Video: Adrian Gonzalez doubles for his 2,000th career hit

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Dodgers first baseman Adrian Gonzalez was able to get a ground ball past Pirates first baseman Josh Bell for a double leading off the top of the sixth inning of Tuesday night’s game. He would come around to score later in the inning on a Corey Seager single, breaking a 1-1 tie.

The double gave Gonzalez 2,000 hits for his career. He is the 282nd player in baseball history and the 11th active player to reach 2,000 career hits. Gonzalez also has 300 home runs, making him one of 94 players with at least 300 dingers and 2,000 hits.

Gonzalez, who was recently activated from the disabled list, entered Tuesday’s action hitting .247/.295/.330 with one home run and 25 RBI in 201 plate appearances on the season.