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.

Phillies walk off winners thanks to a poor decision by Marcell Ozuna

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The Phillies’ bullpen, which has not been good as of late, gift-wrapped Monday’s game for the Cardinals. Starter Nick Pivetta was brilliant, fanning 13 while allowing two runs in 7 1/3 innings. But things unraveled after he left the game. Victor Arano took over for Edubray Ramos to start the ninth inning with the Phillies leading 4-2, but he allowed a one-out single and a double. After striking out Harrison Bader, Arano appeared to strike out Yairo Munoz for the final out of the game, but the ball trickled through the legs of catcher Andrew Knapp, allowing a run to score and the tying run to move to third base. Lefty Adam Morgan came in to face pinch-hitter Kolten Wong. Wong tied the game up, sneaking a single into center field.

In the 10th inning, Jake Thompson gave up the go-ahead run on a leadoff home run to Tommy Pham. It seemed like it was just going to be another one of those losses that have become increasingly common for the Phillies lately. But the Phillies’ offense didn’t go down quietly, even though it hadn’t put a runner on second base since the start of the second inning when J.P. Crawford doubled. In the bottom half of the 10th, Hoskins blooped a single into shallow left-center to start the inning. Hoskins moved to second base on a ground out from Odubel Herrera. Matt Bowman intentionally walked Carlos Santana, then struck out Jesmuel Valentin. That brought up Aaron Altherr, who replaced Nick Williams after Williams took a baseball to the face off of the right field fence. Bowman fell behind 2-1, then threw a 90 MPH fastball that Altherr lined into left field. Rather than keep the ball in front of him, Marcell Ozuna decided to dive for the ball to make the final out, but he missed. The ball trickled past him, allowing the tying and the game-winning runs to score, giving the Phillies a come-from-behind win.

On the list of people happy to see Ozuna miss that ball are Altherr (of course), Arano, Morgan, and Thompson. But perhaps no one was happier than manager Gape Kapler. The win might help take the heat off of him somewhat after another poor performance from the bullpen. When a team struggles, everyone wants a scapegoat and Kapler is an easy target. He has been all year, undeservingly.

Phillies radio broadcaster and former major league reliever Larry Anderson said after the bullpen meltown, “Not everybody can pitch in the ninth inning. And I know Gabe Kapler thinks they can, but they can’t.” Aside from Ramos and Seranthony Dominguez (who was unavailable after throwing 52 pitches between Saturday and Sunday in Milwaukee), no one in that bullpen has been reliable. The closer, Hector Neris, just got optioned to Triple-A. You work with what you have, and right now, Kapler doesn’t have a whole lot. Thankfully for him, he wasn’t punished with another loss thanks to Ozuna.