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Exploring the sheer absurdity of the Bonds verdict

Apr 14, 2011, 8:24 AM EDT

Barry Bonds Convicted Of One Count Of Obstruction Of Justice Getty Images

Having slept on it, here’s one more thought about the Bonds verdict that simply blows my mind.

Yesterday when I reacted to the verdict, I noted the absurdity of Bonds being convicted on his rambling answer in “Statement C” as listed in Count 5 of the indictment. That “Statement C” was Bonds saying, in response to a question about receiving injections, that Greg Anderson was a friend of his and that Bonds was a child of a celebrity. It was four brief beside-the-point statements. And, importantly, Bonds did eventually say unequivocally that, no, he didn’t receive injections. Take that for what it’s worth, but it was a clear answer to a clear question.

I thought it was crazy that such a statement — which had nothing to do with Bonds’ steroids use and in no way actually prevented the prosecution from getting an answer to its question — could form the basis of an obstruction of justice charge. I had missed it the first time around, but apparently Bonds’ lawyers identified the absurdity of this during jury instructions too.  From the San Jose Mercury News’ play-by-play (go to the 9:31 AM update):

9:31 a.m.: Bonds lawyer strenuously objects to one jury instruction

Before the judge began instructing the jury, Dennis Riordan, one of Bonds’ lawyers, objected strenuously to the instruction on the obstruction of justice count against Bonds, which enables the jury to find him guilty based on four separate statements. Some of those statements appear loosely tethered to the allegations that Bonds lied to a federal grand jury in December 2003 about using steroids.

For example, one of the statements covers the following response to a question about whether Bonds had ever been given anything from trainer Greg Anderson that required a syringe.

“That’s what keeps our friendship,” Bonds replied in rambling fashion. “You know, I am sorry, but that–you know that–I was a celebrity child, not just in baseball by my own instincts. I became a celebrity child, with a famous father. I just don’t get into other people’s business because of my father’s situation, you see….”

Riordan argued that the jury could clear Bonds of allegations connected to steroids and injections and, under the instruction, convict him of a felony through that statement, at least in theory. Quoting Karl Marx and his famous statement that history repeats itself twice, first as tragedy and then as farce, Riordan said such a conviction would be “utterly a farce.”

The judge didn’t agree, of course. Nor did she agree with this over the past few years when she had the opportunity to strike that part of the charge and did not, despite striking many others from the indictment.  You’d have to ask her why she allowed this to remain, but it makes no sense that such a statement, on its own, could constitute obstruction of justice.

There is not a single case in the history of Anglo-American jurisprudence in which a witness, at some point, didn’t go off on a tangent that was at least momentarily non-responsive to a question.  As a lawyer, you’re trained to reel the witness back in and focus him or her on the question. In court, if it gets bad, you get the judge to order the witness to answer the question that was asked. In a deposition you rephrase or say “that’s nice, but that’s not what I asked, what I asked was …”  Indeed, getting a witness to answer the question asked when he doesn’t want to or simply is unable to is a basic skill every trial lawyer learns.

But apparently not in the Northern District of California. There, when a witness goes off on a tangent, the precedent is now set: you bring felony charges against him. And it doesn’t matter if he later did answer the question, like Bonds did, or if he cannot be found to have lied or have obstructed justice in any way apart from his brief tangent.

Man, I wish I knew back when I was practicing law that I could have difficult witnesses charged with felony obstruction. It would have made my life so much easier if I didn’t have to prepare good questions and work to elicit the information I sought through the application of trial advocacy skills.  Oh well. You live and learn.

(thanks to Moshe for the Merc’s play-by-play re: the jury instruction)

  1. Jonny 5 - Apr 14, 2011 at 8:55 AM

    Is this a case of “we know he’s guilty of lying under oath, we just don’t have the proof to say he did it beyond reasonable doubt, so we got him on the lesser catchall charge even though it doesn’t make much sense.”

    I’m pretty sure he did lie under oath, and I’m pretty sure the jurors feel the same way. But “pretty sure” isn’t enough to convict on perjury . But obstruction? ahhh it’s a smack on the wrist. There are grounds for appeal, which I hope doesn’t happen. This has cost us enough imo.

  2. tomemos - Apr 14, 2011 at 10:06 AM

    This gives pretty clear grounds for an appeal, doesn’t it?

  3. chrisny3 - Apr 14, 2011 at 11:39 AM

    Apparently there were 4 separate statements/passages of Bonds listed under the obstruction charge. The one on the injections is just one of them. Without knowing the other 3 statements in the charges and what all the jurors thought regarding all 4 statements, it is silly to paint the jury verdict as absurd. As for his injection statement, Bonds did eventually cough up the answer, but only after they had to pry it out of him. His evasiveness on this point, combined with his evasiveness on the other 3 statements is probably what he jury didn’t like.

    And, yes, Bonds will appeal this. He has the money to do so. But I think he will lose.

    • Craig Calcaterra - Apr 14, 2011 at 11:46 AM

      ESPN’s Mark Fainura-Wada reported yesterday that the guilty verdict was on Statement C. This is also being reported by the AP:

      The underlined part in the indictment, the crime he was convicted of, was this response in what was called Statement C in the jury instructions: “That’s what keeps our friendship. You know, I am sorry, but that — you know, that — I was a celebrity child, not just in baseball by my own instincts. I became a celebrity child with a famous father. I just don’t get into other people’s business because of my father’s situation, you see.”

      I believe their reporting is based on the jury verdict forms.

      • chrisny3 - Apr 14, 2011 at 12:07 PM

        So even if it was just on that statement, here is what the jury instructions was:

        “to be convicted, Bonds must be found to have “obstructed, influenced or impeded, or endeavored to obstruct, influence, or impede” the grand jury “by knowingly giving material testimony that was intentionally evasive, false or misleading.”

        IOW, regardless of whether or not the government eventually elicited an answer, his lengthy evasiveness prior to answering the questions was, according to the instructions given by the judge, obstruction.

        Blame the judge. Blame the law. But don’t blame the jury. I think they did their job quite well considering all things including the intense publicity in this case.

      • aaronmoreno - Apr 15, 2011 at 2:08 AM

        Why didn’t you bold “material” or “intentionally?” Are those not factors?

      • chrisny3 - Apr 15, 2011 at 9:48 AM

        aaron, because the bolded part was specifically relevant to the question posed here — how the jury could find Bonds guilty of obstruction even though he eventually answered the question.

        Of course in a broader context, I would think all parts of a judge’s instruction could be a factor.

  4. IdahoMariner - Apr 14, 2011 at 12:03 PM

    “Man, I wish I knew back when I was practicing law that I could have difficult witnesses charged with felony obstruction. It would have made my life so much easier if I didn’t have to prepare good questions and work to elicit the information I sought through the application of trial advocacy skills.”

    Word.

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