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The Bonds jury foreman essentially admits he didn’t pay attention to the grand jury testimony

Apr 14, 2011, 8:50 AM EDT

Jury Box

He didn’t admit it in so many words, but here’s what he said to Gwen Knapp of the San Francisco Chronicle regarding Bonds’ “did you ever get injected by anyone” testimony that formed the basis of the obstruction of justice charge:

Jury foreman Fred Jacob later described the panel’s reaction to that nonsense as: “Come on, you’re just telling stories here. Just say yes or no.”

And here’s Bonds’ testimony before the grand jury regarding being injected by anyone besides team doctors and personal physicians:

Now, you can say that’s a lie (I tend to think it was), but the jury didn’t think so. If they did, they would have and should have convicted him of perjury. But they did not.  They instead took the position that Bonds was “telling stories” and not “just saying yes or no.”  Except he said no. A straight “no” to a straight question.  And yet the jury found this to be obstruction.

This is proof positive that the jury just punted here.  They decided to “do justice” rather than follow the evidence. I’m not OK with that. You shouldn’t be either.

  1. manute - Apr 14, 2011 at 9:04 AM

    Craig, isn’t is the questioner’s job to pin him down? So much of the transcripts I’ve seen show imprecise questions, rambling answers and no follow up. At least on the TV, the prosecutors sift through the BS and reformulate the question with such precision that the witness can’t wriggle his or her way out. To a layman, the questioning seems as rambling and clumsy as Bonds’s answers.

    • Craig Calcaterra - Apr 14, 2011 at 9:05 AM

      Absolutely. But the thing here is, on this point — on the very point that the jury claimed Bonds was feloniously evasive — the prosecutor DID pin him down and Bonds gave a straight answer. It may have been a lie — although the jury didn’t agree — but it wasn’t evasive. He said “no” to a yes or no question.

      Someone has to explain to me how that is obstruction of justice.

      • manute - Apr 14, 2011 at 9:11 AM

        Will the judge toss it? Will it hold up on appeal?

      • florida727 - Apr 14, 2011 at 11:15 AM

        Craig, it’s NOT obstruction of justice. Just as you stated in your article, the jury bailed out (no pun intended). Whether it was lying or not, a DEFINITIVE yes or no response to a DEFINITIVE yes or no question, cannot be interpreted as “obstruction of justice”. How much more absolute can you ask for? The question required a one-word answer, and the answer was ONE WORD… no.

        The problem most prosecutors have, IMO, is what ‘manute’ alluded to… no follow up. Why? Because they’re too busy preparing to ask their next question and not genuinely paying attention to the present answer. They have a “game plan” of questions they want to ask, in sequence, and they don’t implement enough flexibility to inject an appropriate, subject-specific follow-up question.

  2. dodger88 - Apr 14, 2011 at 9:05 AM

    Would Bonds have grounds for appeal? Should he appeal?

    • churchoftheperpetuallyoutraged - Apr 14, 2011 at 9:39 AM

      [Standard preface that i'm not a lawyer] but would appealing open Bonds up to being convicted on perjury? As Craig mentions above, it’s probable that he lied when he said no. Would that be in play if he appealed?

    • Jomolungma - Apr 14, 2011 at 10:57 AM

      Yes, he can and will and should appeal. While the appeal will probably raise a few points, I think the most critical will be the question of whether the basis for the obstruction charge is legally sufficient. However, even before that there will be a hearing to determine whether the judge should toss the guilty verdict entirely. The judge could, for a variety of reasons, including an inconsistent verdict and a failing in the indictment to either sufficiently or clearly allege a crime. This process isn’t over by a long shot and, in the end, if Bonds’s conviction holds up I can’t imagine he’ll get more than 6 months in jail and likely just probation.

  3. heynerdlinger - Apr 14, 2011 at 9:27 AM

    I think the explanation here is that the jury as a whole decided that *something* happened that was illegal, but that they couldn’t agree that any of the statements constituted perjury. Whether that’s because of one or two hold-outs on the jury or not, I don’t know, but it seems perfectly consistent with the prosecution’s argument that Bonds is a bad guy and needs to be punished for *something*, even if they can’t explicitly get him for the steroids.

    This reminds me of the Louise Woodward case in Boston about twelve years ago. In that case, the jury basically made up evidence because they weren’t given a choice (the prosecution charged her with first degree homicide, but provided little evidence that it was premeditated, then tried to sneak in a lesser charge after testimony was complete. The defense refused to allow consideration of the lesser charge, and the jury convicted on the only charge they were offered.) Afterward, the jurors basically said the same thing as the Bonds juror, that they didn’t think it was premeditated but they thought *something* happened and didn’t want to let the defendant just go free.

    • heynerdlinger - Apr 14, 2011 at 10:48 AM

      Sorry, my poor memory misremembered the greater charge as first degree homicide, when in fact it was second degree homicide which would have required a minimum 15-year sentence.

      The result in the Woodward trial was the judge essentially nullified the jury’s verdict by reducing it to a lesser charge of involuntary manslaughter, which probably best fits the evidence in the case anyway. She was sentenced to time served.

  4. Walk - Apr 14, 2011 at 9:54 AM

    I think that jury just wanted to go home. They had already spent one weekend recessed, hope thats the right term. Craig you have described the situation as a punt a few times and i think that is an apt description, they really have punted it to the judge to let him do what he will. The jury seems ok with the fact bonds had to have broke some law some time so lets let the judge pick. Shameful, i believe he perjured himself, but i pray that i never have a jury like that.

  5. teambringitstrong - Apr 14, 2011 at 10:11 AM

    He hits it high, he hits it deep and its not coming back.

  6. mytigh - Apr 14, 2011 at 10:16 AM

    As an experienced trial lawyer, I can attest to two things:
    1. It is easy to ask imprecise questions
    2. If you are looking for endorsement of a statement, which the Prosecutor was attempting, you need to add a qualifer to the statement or a “yes” or “no” response is always imprecise. For example, the Prosecutor meant to ask the following question: “It is true then, that only a licensed physician has injected you?” “No” to that question denies the statement. “Yes” affirms it. While everyone in the room probably understood Bonds’ “no” to be an affirmation of the Prosecutor’s statement, it is difficult for a second jury to convict him of perjury on this answer. If you understand this fact, the jury’s verdict in the criminal case makes sense.

    • LPad - Apr 14, 2011 at 10:59 AM

      That’s a very good point. Without the follow up, it is very hard to prove that it was a willful lie and not an unintentional one.

    • thumper001 - Apr 14, 2011 at 11:56 AM

      When I read excerpts from the transcripts, what you mention above, in your succinct post, is a repeated problem for this set of investigators. Their questions lack scope, clarity; and seriously, a level of gravatas on par with what should be required for convicting a US citizen of criminal behavior, IMO.

      Is this type of questioning indicative of an overall weak case in your experience? Or, is it par for the course now, in this age of the public being bombarded with one “Law and Order” type show after the other (where rules are continuely bent to fit the wanted emotional outcomes)?

      Anyway, really appreciated your post for hitting on the scope issues with the questions asked of Bonds…

      [Note: there seems to be an interesting line drawn in the 11-1 verdict, where the one held out because the government could only produce ONE witness to their claim (Anderson took the contempt charge here repeatedly). Isn't the "requires 2 witnesses to make a fact" rule, pre-1976 law (last major judical reform)? If it still applies, will the defense use this issue as a point of law in their motion to have the conviction set aside at the hearing in May?]

  7. leez34 - Apr 14, 2011 at 10:21 AM

    Craig, are you against all forms of jury nullification?

    • Craig Calcaterra - Apr 14, 2011 at 10:27 AM

      I am sympathetic to those who advocate for nullification when it comes to a host of charges like non-violent drug offenses, etc. But ultimately I can’t agree that nullification is the way to go. I think the risks to the legal system are too great from using it to make an otherwise political point.

      I had a crim law professor at GW who was one of the earlier nullification advocates — Paul Butler. I heard his arguments loud and long. But I never could buy them.

  8. chrisny3 - Apr 14, 2011 at 11:22 AM

    “Now, you can say that’s a lie (I tend to think it was), but the jury didn’t think so. If they did, they would have and should have convicted him of perjury. But they did not. “

    This is nonsense. The jury was in overwhelmingly in favor of convicting Bonds on the injection count, 11-1. So, the jury did think it was a lie. But because of the system, which I support, it had to be unanimous and it wasn’t. Just one holdout prevented a conviction on that count.

    Moreover, the foreman did NOT admit he didn’t pay attention to the grand jury testimony. Apparently he was one of the 11 in favor of convicting Bonds on the injection count. (It was a female juror who was holding out.) I think his reaction and comment, while focusing on the injection part of Bonds’ testimony, had more to do with Bonds overall GJ testimony.

    This was NOT a case of jury nullification. I actually think the jury did quite a good job overall, following the judge’s instructions and the law.

  9. Craig Calcaterra - Apr 14, 2011 at 11:35 AM

    “This is nonsense. The jury was in overwhelmingly in favor of convicting Bonds on the injection count, 11-1.”

    Chris, for as someone who is usually fixated on one’s precision, surely you realize that a jury in a criminal trial acts a unanimous unit. If the jury votes 11-1 for conviction in a criminal trial, the jury by definition has not decided. They did not, as a unit, agree that the defendant was guilty. “One holdout away” from a conviction is like someone being “almost pregnant.” Someone is either convicted or they weren’t.

    “Moreover, the foreman did NOT admit he didn’t pay attention to the grand jury testimony.”

    The man said he wanted a yes or no answer to a specific question. The defendant gave a no answer in testimony that was read to him and placed into evidence. To still contend, then, that the defendant did not provide a yes or no answer is, by definition, not paying attention to the testimony, be it intentionally by disregarding it, or unintentionally, but not remembering it. In either case, the man didn’t do his job.

    You accuse people of spin all the time. You are spinning this like a freakin’ figure skater.

    • chrisny3 - Apr 14, 2011 at 11:53 AM

      “…surely you realize that a jury in a criminal trial acts a unanimous unit…Someone is either convicted or they weren’t”

      Of course. And if you bothered to read my whole comment you would have read: “So, the jury did think it was a lie. But because of the system, which I support, it had to be unanimous and it wasn’t. Just one holdout prevented a conviction on that count.” They tried their best to convict him of perjury on the injection count but couldn’t convince the single holdout. The point being, contrary to your interpretation, most of the jurors including the jury foreman did believe he lied on the injection count. Your interpretation would have made more sense if they had been split 1-11 in favor of acquittal on that count. Or even something like 3-9.

      “To still contend, then, that the defendant did not provide a yes or no answer is, by definition, not paying attention to the testimony, be it intentionally by disregarding it, or unintentionally, but not remembering it. In either case, the man didn’t do his job.”

      There were 3 other passages/statements included under the obstruction charge. I’m sure that Bonds evasiveness in all those passages was what convinced the jury to convict. Not just the injection statement. For you to focus almost entirely on that statement seems like spin and sour grapes. Craig, you’re spinning like a top.

      • Craig Calcaterra - Apr 14, 2011 at 12:03 PM

        I offered no “interpretation.” I said the jury did not agree that Bonds committed perjury. That is a fact. The jury did not agree that he had committed perjury. If they had, he would have been convicted. Your weighing of juror votes to get a sense of the jury’s mood is interpretation. And given that a jury convicts, acquits, or is hung, but never “leans,” your interpretation is erroneous.

        And we know that the statement in question on obstruction is Statement C, the one about Bonds’ answer to involving his “celebrity child” testimony. It is being widely reported as such by both the Associated Press, Fainura-Wada and others. The jury form required the jurors to specify the statement in the obstruction charge. This was the statement they specified.

      • chrisny3 - Apr 14, 2011 at 12:17 PM

        Craig, you certainly are offering your interpretations here. You’ve said things like the foreman didn’t pay attention to the grand jury testimony and that the jury engaged in nullification. That is definitely subjective opinion.

        My saying the jury was very heavily leaning in favor of conviction on the injection count is fact.

        About the obstruction count, you are right that they convicted on Statement C. I just read some articles which confirm that. However, what you are overlooking is the judge’s instructions to the jury which state:

        **…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.”**

        In other words, it’s erroneous to conclude that even if Bonds eventually answered the question, the jury couldn’t find that he obstructed the process. In the judge’s instructions, his mere attempt to do so was enough to find him guilty. So, blame the judge. Blame the law. But don’t blame the jury. They actually did a good job in following the law here.

      • Craig Calcaterra - Apr 14, 2011 at 12:32 PM

        You called my statement “the jury didn’t think so” “Nonsense.” That statement of mine was not an interpretation. That’s what set this off. And yes, your statement that the jury was leaning one way is a fact. But it’s an entirely irrelevant one given how juries work. It in no way changes what the jury, in fact, did, which was to fail to reach a verdict.

        As for the charge, I would argue that the jury ignored the “materiality” component of that. I would also argue that if it is obstruction of justice to dodge a question, be redirected by the prosecutor and then answer it, every single case that ever was would result in obstruction prosecutions.

      • chrisny3 - Apr 14, 2011 at 12:45 PM

        Well, if you’re talking about the jury as a whole, then it is incorrect to say that they “didn’t think so” in regards to Bonds lying about the injections. To be precise, then, there was no definitive decision either way. No “yes.” No “no.” They were hung.

        And if you break it down how they were thinking individually, as I was doing, then you’d have to admit that they were overwhelmingly leaning toward a conviction on the injection charge and overwhelmingly believed he lied. But since that is not how the system works and it requires unanimity of opinion, he wasn’t convicted on that charge.

        But either way, to characterize the jury as believing he didn’t lie about the inject is what I think is “nonsense.”

  10. lbehrendt - Apr 14, 2011 at 11:42 AM

    Craig, I’m a lawyer who has served on exactly one jury. It was a relatively simple case, a civil case, not a high publicity case. We had to render a verdict and declare the amount of damages. After we announced our verdict, there was no press corps interviewing us to ask us how we reached our decision … but the attorney for the plaintiff tried to interview as many of us as he could. This is what I’ve learned:

    Don’t take too seriously anything a juror says after a jury decision. At best the juror is telling you half the truth. Mostly, the juror is tired and wants to go home.

    • chrisny3 - Apr 14, 2011 at 12:20 PM

      Mostly, the juror is tired and wants to go home.

      Bingo. After 4 days stuck in a small room with 11 other strangers and no doubt having to deal with contentious discussions and some yelling during that time, he probably just wanted to get out of there. Their nerves were probably on end by that time.

      • Craig Calcaterra - Apr 14, 2011 at 12:28 PM

        How is that, then, the jury doing “the best they could?” as you claim they did. “Just wanting to get out of there” is not part of their description. A jury shouldn’t settle on a charge for convenience and to end a difficult discussion.

      • BC - Apr 14, 2011 at 12:40 PM

        Unfortunately it seems like 75% of America would rather have major dental surgery than serve on a jury. I’ve been called and gone through the voi dire process a couple times, but never served. I’d actually look at it as a challenge and new experience. Unfortunately, most people simply don’t give a rats a– about jury duty and want to punt at the first chance.

      • chrisny3 - Apr 14, 2011 at 12:51 PM

        Craig … “just wanting to get out of there” means at the point a reporter is sticking a microphone in their face. They probably don’t even want to give interviews at that point but are being gracious.

        I’m sure up to the point they sent out a note to the judge saying they were deadlocked, the main thing on their minds was to get the verdict right.

    • lbehrendt - Apr 14, 2011 at 1:18 PM

      Craig, on this point, what chrisny3 said. I felt that my duty as a juror ended once we’d announced the verdict. I did not feel that I had any duty to describe to anyone HOW we’d reached our decision. (I personally felt some obligation as an attorney to explain to the plaintiff’s attorney why his case had gone sour … but this obligation went only so far.) As an aside, my 11 fellow jurors worked harder and more diligently to reach the right decision than any committee, board, panel or tribunal I’d witnessed before or have witnessed since.

      As for the “charge for convenience” point … fair point. But you can’t expect a verdict to express the opinion of 12 adults without a certain amount of give-and-take, compromise and “I can go along with that”. When a jury has to agree on multiple points, the business of give-and-take may result in one point being decided in a way that does not neatly jibe with the others. If what you want is a verdict that is logically consistent and represents the 100% unqualified opinion of every juror, you’re going to end up with a lot of hung juries.

  11. sanzarq - Apr 14, 2011 at 11:43 AM

    You would hope that trained lawyers for the prosecution or defense would be able to skillfully a adroitly solicit testimony just like Perry Mason used to do on the long running Classic TV show. Unfortunately, that is apparently rarely the case, at least from my personal perspective. I’ve been privy to witness quite a few trials and have sat in my seat, squirming at the ineptitude of most lawyers. Maybe I should have trained to be one.

    In any event, after reading several of these columns, I’m of the opinion that the Judge should vacate the Guilty verdict, primarily because it is clearly a misinterpretation of applicable law. Further, I think the Government should abandon any further pursuit of Bonds, because they’ve totally botched this go-round. Bonds has already been judged in the court of Public Opinion, which certainly seems sufficient at this point.

    • cggarb - Apr 14, 2011 at 12:29 PM

      I’ve been privy to witness quite a few trials and have sat in my seat, squirming at the ineptitude of most lawyers. Maybe I should have trained to be one.

      You’d definitely have a different perspective if you had practiced law. There are a LOT of lousy lawyers, but things look a lot easier from the sidelines. Same as baseball, acting, or anything else.

      Perry Mason gets a “gotcha” answer every week for the same reason that the Hickory High basketball team shot 95% from the field in Hoosiers. It’s dramatic fiction.

  12. austinamerican - Apr 14, 2011 at 11:44 AM

    Hard to believe that anyone could possibly not think this lying disgrace for a major league baseball player is not guilty. They have testimony from the person who injected him, who plead guilty and did time for it, but they can’t seem to convict the real criminal of anything but obstruction? Our legal system is a joke, and the jury system is a bigger joke. Combine incompetent prosecutors with ignorant and self serving jurists and you get these kinds of decisions.

    Our whole nation looks like a bunch of ignorant asses when this kind of travesty is allowed to be called justice. No wonder these prima donna personalities have no fear of repercussions from their actions, all they have to do is hire some descent lawyers and they will walk with no problem.

    I bet if the legal teams had been reveresed, Bonds would be on his way to prison for at least a couple years. The real proof is, no major league baseball team would have him on their roster, even though was supposedly the best home run hitter in the history of the game. I feel very badly for Hank Aaron and all the great and honest players who are having their accomplishments reduced by cheaters like Bonds, and from the looks of most reports, most of the major league players today.

    Bonds and cheaters like him are the reason I no longer watch baseball after nearly 50 years of playing and enjoying the game. I just cannot stand to watch cheaters get rewarded.

    Message to the commissioner… Do something about the way some players are disgracing the memory of a great game, or pay the price. Real Americans will not stand for cheating.

    • 80blackbart - Apr 15, 2011 at 3:02 PM

      Your game is not what you think it was. Get over yourself, there have been cheaters as long as baseball has been around.

  13. lbehrendt - Apr 14, 2011 at 12:17 PM

    Craig, I’ll leave you with two final thoughts about how juries behave, and how they should behave.

    Juries tend to simplify cases. Juries tend to react to the people in the process that they liked, and disliked.

    I’ve served on one jury, for a case involving tort liability and damages in a car accident. My jury pretty much agreed on three things: (1) the big corporate defendant was liable, (2) the plaintiff should have gotten the hell out of the defendant’s way, and (3) the doctor who testified on how he’d treat the plaintiff’s injuries scared us half to death, and we didn’t want that nice plaintiff to have too much money to pay that nasty doctor.

    I’ve been to law school too, Craig. I know that our verdict didn’t make much sense. But it was fair, and I felt it was reasonably true to the facts and the law. The verdict did not exactly match up with any single juror’s idea of how the case should be decided — I, for one, would have awarded higher damages. But it was close enough, a classic decision by committee if you like that analogy. I was OK with where we ended up.

    In the Bonds case, the jury seemed to agree on two things: (1) Bonds’ testimony before the grand jury was intentionally dissembling, evasive and disrespectful of the process, and (2) the witnesses for the prosecution were not trustworthy (or were related by blood to untrustworthy witnesses). I think they also came out of the process disliking just about everyone they encountered in the process, which is pretty much the same reaction I got from the media covering the trial.

    The jury’s verdict surprised me too. On reflection, I don’t think it’s a terrible verdict. I think the Bonds jury felt that Bonds went into the grand jury with the intent to evade and mislead, and that he succeeded in his task. I haven’t briefed the question, but I think this finding is sufficient to support an obstruction of justice conviction. At the same time the jurors weren’t willing to convict on counts that relied too heavily on the government’s witnesses. That’s OK too.

    If the result is not as logically consistent as we like, so be it. The gist of the result is OK with me: there was something wrong with the way Bonds testified to the grand jury. If you’re called before a grand jury, then (putting the matter of self-incrimination to one side) it’s important to tell the truth to the best of your ability. Bonds didn’t do that, and he’s going to be punished. I’m OK with that.

    • cggarb - Apr 14, 2011 at 12:26 PM

      The problem is that the system is not designed to reach “close enough,” “seems fair,” or “sounds right” verdicts.

      We have very precise rules of evidence — because jurors are ONLY supposed to consider what they see and hear in the courtroom.

      We have very precise jury instructions, over which there’s plenty of argument — because jurors are supposed to apply THAT specific bit of law (and nothing else) to ONLY the evidence they saw and heard in the courtroom.

      Unfortunately, most jurors think the way yours do. I both won and lost jury cases where the decision was based almost entirely on a “we didn’t like her” or “we thought he did something wrong” feeling — sometimes in direct contravention of the evidence or instruction. It happens more than it should, and that’s a big reason I don’t try cases any more.

      It’s like building elaborate model cities, then turning them over to two-year-olds to destroy.

      • lbehrendt - Apr 14, 2011 at 1:40 PM

        cggarb, the evaluation of how juries work should include a component of “compared to what”. If you’re trying to decide where to locate your nuclear power plant or whether to start a war in Iraq, perhaps you should not convene a jury to decide (though note that our alternate means for making these decisions reached some pretty awful results). But if you’re talking about a decision where my personal fate is at stake, liable or not liable, guilty or not guilty … PLEASE put my fate in the hands of a jury. I think that’s the place where I have the best chance to see justice.

        The American Mind has been hard at work the last 100 years, trying to find a better way than juries to reach decisions in legal disputes. We now have legal decisions reached by administrative agencies, and privately by arbitration panels. For certain kinds of cases, there may be better ways to reach decisions … but if you’ll pardon my saying so, based on my experience arbitration panels and administrative agencies often reach rotten decisions.

        Juries are what they are. They are not trained legal experts, and to a certain extent they’re going to wander off-message. In my experience, they reach results that are pretty close to right, most of the time. Agreed, in a vacuum, that’s not nearly good enough. But in comparison to the alternatives available to resolve legal disputes, juries are pretty damn good, and from this comparative point of view I think the Bonds jury reached a fair decision. FWIW, and IMHO, YMMV, etc.

  14. BC - Apr 14, 2011 at 12:35 PM

    This just completely screws up the appeals process. In which direction, I’m not sure.

  15. fouldwimmerlaik - Apr 14, 2011 at 1:01 PM

    Actually, I am OK with anything that puts Barry Bonds in jail. Cool.

  16. iamevilhomer2011 - Apr 14, 2011 at 2:32 PM

    It seems to me that Bonds does admit to other people injecting him (“other doctors from surgeries…sure, there are other people that have stuck needles in me…”) but he said no to the question as to whether the people that stuck needles in him were “…individuals like Mr. Anderson or any associates of his.”

  17. seeingwhatsticks - Apr 14, 2011 at 7:56 PM

    I think it’s more surprising that 11 of the 12 jurors apparently were willing to convict on the perjury charges than it is that the 1 juror held out given the lack of physical evidence and the poor credibility of every one of the government’s witnesses. After 7 years the government went after someone for perjury and obstruction when their testimony didn’t hinder the original prosecution at all, and they did so without any physical evidence and based solely on the accounts of a string of characters just as shady as Bonds. I believe Bonds lied, but from everything I’ve read and heard the government got nowhere near proving that Bonds lied “beyond a reasonable doubt.”

  18. gwenknapp - Apr 19, 2011 at 12:22 AM

    Craig,
    This is Gwen Knapp of the Chronicle. I am deeply troubled that Mr. Jacob’s quote was distorted to make it seem as if he did not do his work on the jury diligently.
    The passage you cited was part of a 114-page edited transcript of Bonds’ grand-jury testimony. It was not the passage cited in the guilty verdict. Nor was it representative of Bonds’ answers to difficult questions throughout the testimony. He frequently ducked the questions with irrelevant story-telling.

    The jurors agreed on this point. Mr. Jacob’s quote, in context, offers no reason to suspect that he did not properly apply himself to the task of judging Barry Bonds’ forthrightness as a BALCO witness. My story did not offer reason to suspect that, either.

    In the interest of decency, I would ask that you do your own reporting, rather than referencing mine inaccurately, when you wish to smear someone.

    • Craig Calcaterra - Apr 19, 2011 at 6:12 AM

      From the tone of your comment I am of the impression that you read this one post from my commentary on the Bonds case and no other. If that is not the case, apologies. If it is the case, please know that I have been, in some form or another covering the Barry Bonds case since 2003. I am an attorney with 11 years of experience and I have read and studied the entirety of Bonds’ grand jury testimony in its entirety multiple times since it was made public and have analyzed just about every aspect of this case for legal publications and, more recently in my opinion writing for NBC.

      While the quote from your article is cited, my view of the job the jury did in this case is not based on that isolated quote. Likewise, my view of the verdict on the obstruction charge is not viewed on the isolated quote from Bonds’ testimony that I block quoted (nor should the jury have limited itself to the part quoted in Statement C of the indictment to determine whether Bonds was evasive). I agree that Bonds was evasive through much of his testimony. I’ve written extensively that it seems that he should have been found guilty of perjury on the injection count. That he ultimately gave a “no” answer to the one question that the jury foreman said he did not give a “yes or no” answer to is troubling to me.

      I would also note that I am not alone among legal commentators in believing that the jury’s conclusion in this case to be bizarre and possibly subject to be set aside by the judge when she considers the matter next month, or at the very least subject to a righteous appeal. That the jury could find no perjury yet found obstruction with respect to a question that was in fact answered was unexpected and puzzling to say the least. That the foreman himself later stated that the question was not answered is likewise bizarre. Based on my experience with the jury system, with the breakdown of the jury votes on the perjury charges and based on this result, it is my belief that the jury came to a compromise verdict. Which, while permissible given the latitude a jury is granted under the system, does not represent a rigorous exercise of their power and discretion in the criminal justice system either.

      Finally, I take issue with your claim that I am attempting to smear the jury foreman or that I took his statements out of context. You quoted the man twice. Once with respect to the verdict. If that quote was not representative of his views on the matter, I am not the one taking him out of context. You are. Because if there was more nuance to his post-trial statement that communicated something other than that he believed that Bonds did not answer a question that he clearly did based on his grand jury testimony, it was not to be found in your report.

  19. gwenknapp - Apr 19, 2011 at 10:02 AM

    Craig,

    First of all, the assertion that Mr. Jacob was quoted improperly in my story is ludicrous. Most of the column is devoted to explaining that Bonds was convicted for being evasive. Just before the quote, I described the specific evasion for which he was convicted. Mr. Jacob’s quote was completely on point. Bonds was telling stories in that passage rather than answering a question. He told stories throughout the testimony. That’s what Mr. Jacob said in the quote.

    You can certainly quibble with the judge’s instructions to the jury, since she allowed that particular passage to be put up for a vote. You can fairly quibble with the jury’s definition of “evasive.”

    But you cannot honestly say that Mr. Jacob was not paying attention to the grand-jury testimony because of his response to the question put before him in the jury room, or because of the way he was quoted in my story. Any attempt to interpret his comments in that manner represents a willfull disregard for the facts and an overzealousness to attack anyone who disagrees with your point of view.

    I read other posts of yours after the trial. I did not reply to them, even though I found them misinformed and based on opinions that were formed without much regard to evidence in the case. But since we’re on the subject: How could an attorney rail about McGwire not being charged with obstruction?
    He did not have immunity, so he could refuse to answer questions. Bonds had immunity for anything he might have admitted to the grand jury, so he had to answer questions. Surely, you had to know that.
    I am well-aware of the other legal experts you cite. That citation was one of many irrelevancies in your reply. I did not take issue with your interpretation of the outcome. It is worth noting, however, that the one legal expert who actually attended the trial on a regular basis, Lester Munson, saw the verdict as valid.

    I accept your apology for misstating that I did not read your prior posts. But you really owe me an apology for willfully distorting my work. More than that, you owe Mr. Jacob an apology.

    • Craig Calcaterra - Apr 19, 2011 at 10:14 AM

      “But since we’re on the subject: How could an attorney rail about McGwire not being charged with obstruction?”

      I did no such thing. I noted that Bonds’ dissembling was similar to McGwire’s in its nature — answers not responsive to the questions he was asked — not their legal effect.

      Nor did I distort your work. If what Mr. Jacob said in your article is not representative of his actions as a juror, he distorted it. If how you quoted him is not representative of what he said to you, you distorted it. I am taking what he said about Bonds’ testimony and comparing to the actual substance of Bonds’ testimony. Those things don’t match up and that’s what forms the basis of my opinions here.

      I’ll also note that if you are citing Lester Munson for legal expertise with respect to this case, it is you, and not I, who are off base. His analysis, dating back to the prosecution’s appeal several years ago and on through the verdict has been roundly criticized, and for good reason. I’d have you further look at his work with respect to the Duke lacrosse case and other matters before you hold him up as an authority.

      But you are right about one thing. This is my opinion. I’m sorry you disagree with it, but I don’t expect everyone to agree.

  20. gwenknapp - Apr 19, 2011 at 5:05 PM

    Your own words:
    <<<>>>

    How is that not about the legal effect?

    Munson showed up in court and followed the case every day. You and the so-called legal experts who criticized him did not. It doesn’t matter how many of you there were, or how loudly you brayed.

    I am not going to explain again why you distorted my work and Mr. Jacob’s words. That you did so should be perfectly clear to anyone with a brain or conscience.

    You have been reckless with the truth and demonstrated malice toward Mr. Jacob because he did not support your point of view.
    I have never written to anyone in the media this way before, but for both ethical and legal reasons, I needed to be on the record in my opposition to your baseless accusations against this juror.

    • Craig Calcaterra - Apr 19, 2011 at 5:16 PM

      Your invocation of “recklessness” with regard to the truth and “malice,” along with your reference to your “legal obligation” suggests to me that you are claiming that I have defamed either you or Mr. Jacob or both. I have done neither. I have juxtaposed Mr. Jacobs’ words as they were reported by you with the record in this case and found a disconnect that many others who have observed this case have noted.

      If, as you claim, you are done trying to explain why you take issue with my piece, I welcome it. If, rather, it is your intent to escalate this further, I suggest we take it off the comments page and discuss the matter over email.

      Otherwise, I will at this point thank you for what, this unfortunate interchange notwithstanding, I thought was your excellent reporting during the trial, and I will bid you good day.

  21. gwenknapp - Apr 19, 2011 at 5:23 PM

    For some reason this part of your own words disappeared from my previous post about legal effect.

    One more quickie: The Barry Bonds “I was the son of a celebrity” non-answer was no different than Mark McGwire saying “I’m not here to talk about the past” before Congress. In fact, McGwire’s was worse, because he never did answer the questions put to him. Bonds did.

    No one thought to bring obstruction charges against McGwire. Hurm.

    • Craig Calcaterra - Apr 19, 2011 at 5:46 PM

      And if you continued to read on, you’ll see that the comparison is in the interests of comparing their legacy in the game and status as a pariah, not as a means of suggesting that McGwire should also have been charged. Indeed, I wrote extensively at the time of his testimony and last year when he went public about the whole affair that I believe McGwire was wise to testify the way he did.

      But there is a legal point to be made in the Bonds-McGwire comparison, and it is about materiality. No one in Congress was truly misled by McGwire’s curious and somewhat dissembling testimony. Likewise, no one on that grand jury should have, in my view, been misled by Bonds’ rambling, especially as it related to the injection questions which he eventually answered.

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