Appeals court to reconsider Barry Bonds’ obstruction of justice conviction

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Barry Bonds has already done his time — if you can call 30 days in his mansion “time” — but he is still seeking to have his conviction for obstruction of justice arising out of the BALCO investigation overturned. He just got an assist in that regard from the 9th Circuit Court of Appeals, which has agreed to re-hear his appeal.

Originally a three-judge panel rejected his appeal, but appellants have a right for an en banc rehearing — in which the entire panel of judges determine whether to reconsider — and a majority of the 28-judge panel granted his petition. That vacates last September’s decision against Bonds and gives the entire panel a chance to weigh-in.

At specific issue is whether it’s OK for prosecutors to get an obstruction of justice conviction based on statements that were not held to be perjury. Which is what happened in this case. You may recall that Bonds, under oath gave a long, rambling answer about whether he had ever been injected with drugs, famously going on about how he was “a celebrity child” before finally answering in the negative. The prosecution basically double-charged Bonds for that statement, first with perjury and then with obstruction. The jury decided that was not perjury and acquitted him on that count. They did, however, hold that it was obstruction. The 9th Circuit apparently wants to reconsider whether that’s kosher.

As we noted at length at the time of the conviction, the idea that Bonds’ answer, however rambling it was, constituted obstruction of justice, is a joke. Bonds may have riffed for a few moments, but soon after he directly answered a yes-or-no question with a “no.” A “no” that the jury decided was not a lie. There aren’t many criminal cases in the history of Anglo-American jurisprudence in which a testifying target of a grand jury investigation did not, at least for a moment, try to fudge his way out answering a question. One of the first things you’re taught in law school is that it’s your job as the lawyer to rein the witness in and get him to answer. The prosecutor eventually did that here. And then the prosecutor decided to literally make a federal case out of the fact that a witness rambled for a minute, calling it obstruction of justice. The jury, it’s worth noting, thought it was a joke too, but they felt their hands were tied.

Good for the Ninth Circuit for reconsidering a conviction which was clearly bogus and a charge which was designed as nothing more than a face-saving throw-in for a prosecution that was doomed from the very moment it became clear that the prosecution did not have sufficient evidence to go forward but decided to do so anyway.

The rehearing will take place in September. If it’s successful for Bonds, he’ll have beaten every charge thrown his way. At least as far as the law is concerned.

Battle of the Aces: Max Scherzer takes on Clayton Kershaw tonight

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I hope you don’t have any plans tonight at around 10PM Eastern time, because that’s when we get a pitching matchup for the ages as Max Scherzer will take on Clayton Kershaw at Dodger Stadium. When they meet tonight it will be the first time two pitchers with three or more Cy Young Awards have matched up since 2006. That year, and in 2005 and 2000, Roger Clemens faced Greg Maddux. In 2001 Clemens faced Pedro Martinez.

Kershaw won his hardware in 2011, 2013 and 2014, with an MVP award in 2014 to boot. Scherzer collected trophies in 2013, 2016 and 2017. Each has started the 2018 season in Cy Young form. Kershaw is 1-2, but that record is due to poor run support. He has a 1.73 ERA and has struck out 31 batters and has walked only three in 26 innings. Scherzer is 3-1 with a 1.33 ERA and a whopping 38 strikeouts to only 4 walks in 27 innings.

This will be the third time that Kershaw and Scherzer faced each other if you include the playoffs. The first meeting was a decade ago when both were rookies. They most recently faced off in Game 1 of the 2016 NLDS, way back when Scherzer only had one Cy Young Award to his credit. Kershaw beat Scherzer in that playoff game and the Dodgers beat Scherzer’s teams in the two regular season matchups, with neither guy setting the world on fire. As so often happens in baseball, the hype hasn’t been matched by reality.

Still, there’s always a chance it will. And even if, in the end, this turns into a slugfest, the first couple of innings should at least give us some hope of something good. I’ll be watching.