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.

Report: Braves not expected to pursue Bryce Harper

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Thanks in part to a rebuilding effort that got ahead of schedule, the Braves in 2018 had their best season in five years, finishing 90-72 and winning the NL East. They were stopped in the playoffs by the Dodgers, falling in five games in the NLDS. Outfielder Ronald Acuña Jr. won the NL Rookie of the Year Award and Brian Snitker won the NL Manager of the Year Award. Veteran outfielder Nick Markakis even got some down-ballot love in NL MVP voting, finishing 18th behind teammates Freddie Freeman (fourth) and Acuña (12th).

Markakis is now a free agent and there happens to be a very talented and still-young outfielder available in free agency this offseason who could replace him and then some. He goes by the name Bryce Harper. You might have heard of him. David O’Brien of The Athletic initially said to not be surprised if the Braves became players in the Harper sweepstakes, but quickly retracted it as a source he trusts assured him the Braves are not, in fact, in on Harper and added that he thought there would be no way Braves ownership (Liberty Media) would sign off on a 10-year deal.

Since being taken over by Liberty Media in 2007, the Braves’ Opening Day payroll has been in the $60 million to $137 million range, according to USA TODAY Sports. On average over that period of time, the Braves have had the 18th-highest payroll among the 30 major league teams. The Braves increased payroll to a franchise-record $137 million on Opening Day in 2017, but cut that all the way back to $83 million in 2018, dropping their rank in baseball from 13th to 27th. In April, the Braves disingenuously played service time games with Acuña, then an uber-prospect who was undoubtedly major-league ready, in order to cheaply get another year of team control over him.

Jeff Schultz of the Atlanta-Journal Constitution wrote in March this year that Liberty Media has $42 billion in assets. This corporation is not hurting for cash. Yet the Braves cried poor in order to bilk taxpayers of $400 million to fund the totally unnecessary new ballpark that moved the Braves’ home from Atlanta to Cumberland (Cobb County). The stadium is not as easily accessible by way of bus or subway, hurting a lot of the Braves’ poorer fans and those who live in the city, sans car. As Meris Lutz of the Atlanta Journal-Constitution reported last year, Cobb County found itself in a $30-55 million budget shortfall, even after “raiding $21 million in rainy-day funds to plug a gaping hole in the 2018 budget.” Liberty Media, of course, doesn’t lose anything from this.

The Braves were one of 13 teams in baseball to see an attendance increase from 2017 to ’18, seeing over 50,000 more fans go through the turnstiles. Braves ownership had said that a spike in revenue — from increased attendance as well as from leasing offices and retail space — would lead to increased payroll. Instead, the Braves’ payroll was cut by approximately $54 million and now the organization has reportedly already taken itself out of the running for Harper, unarguably the best free agent outfielder to hit the open market in quite some time. Adding a talent like Harper (or Manny Machado) would solidify the Braves’ legitimacy in the NL East and it would, at minimum, be a show of good faith to Braves fans, whose tax dollars are on constant display during all 81 home games in Cobb County.

This is in stark contrast to Phillies owner John Middleton, who recently said, “We’re going into this [offseason] expecting to spend money. And maybe even be a little bit stupid about it.” He added, “We just prefer not to be completely stupid.” This confirms what everyone already knew: the Phillies are major players for elite free agents Harper and Machado. Heck, they might even get both. Either player could exceed the record for the largest contract in baseball history, currently held by Yankees outfielder Giancarlo Stanton, who signed a 13-year, $325 million contract with the Marlins in 2014.

This past season, the Phillies fell flat on their faces in the second half while the Braves continued to press forward with a better-constructed team. The Phillies didn’t have an Acuña or a Freddie Freeman and their minor league system still doesn’t quite match up with the Braves’. Sniping Harper from the Phillies would seem almost critical, then. Or at least keeping up with the Phillies by signing other free agents to fill the gaps left by Markakis and others.

Sadly for Braves fans, it seems like Liberty Media got what it wanted, largely on the taxpayers’ dime, and is happy to keep the Braves near the bottom-third of the league when it comes to payroll. If the Braves finish behind the Phillies in 2019 and beyond, fans and the players will have only ownership to blame.