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Legal experts weigh in on Barry Bonds’ post-trial strategy

Apr 15, 2011, 2:35 PM EDT

Closing Arguments Delivered In Barry Bonds Trial Getty Images

A lot of people have been asking in the comments recently about whether the somewhat inexplicable jury verdict against Barry Bonds will be overturned, vacated, appealed, whatever. I’m not a criminal procedure expert so the specific mechanics relating to a trial judge’s ability to set aside a jury verdict are a little amorphous to me, and NBC doesn’t pay me enough to go hit the law library to figure it out. Not that I’d really want to anyway.

My sense, though, is that it’s a really tall order to have a verdict set aside — it’s certainly the case in civil trials, and I would guess that it’s harder in the criminal sphere — but that Bonds’ appeallate avenues are wide open and pretty, um, appealing given the bad jury instructions that were given on obstruction of justice and the unusual and, in my view, incoherent he-didn’t-perjure-himself-but-he-did-obstruct-justice outcome of the trial.

Today the New York Times tracks down people who know more about this stuff than I do and tries to hash it all out.  Worth noting — though they’re obviously biased — is that Bonds’ own attorneys considered the verdict the other day to be pretty good news all things considered. They they think that Judge Illston will vacate the conviction on May 20th and that Bonds will go free (you know what I mean).  Other legal experts believe that such optimism is “reasonable” but that appeal may be a more sure route to success:

Bradley Simon, a former federal prosecutor who specializes in white-collar criminal defense, said the defense might say that Bonds’s evasive statements to the grand jury did not rise to the level of obstruction of justice. He said that it was one of the arguments that make a strong case and that the issue might set off an appeal that would last for years.

“I think there’s a reasonable chance the judge will agree with the defense, but even if she doesn’t dismiss it, they have a really good appellate question,” Simon said. “No matter how you look at it, this is a great result for the defense because they have an issue that calls the conviction into question.”

I don’t think he means “great result” in terms of the conviction being great. I think he means things are set up well for appeal purposes, even if an acquittal would be preferable.  But hey, what do I know?

But even if I don’t know anything, my gut tells me that contrary to what one of the other experts says in the article, this case doesn’t seem likely to settle with a plea.  I am highly skeptical that the prosecution will go through a retrial of the other counts, and barring that as a legitimate threat, they have nothing to offer Bonds (i.e. they’re not going to come off of him admitting to one count). Bonds, in contrast, has to believe that he’s got a great shot on appeal.  As such, my guess is that this either ends with the judge setting this aside in May or after a lengthy appeal.

  1. Millard Baker - Apr 15, 2011 at 2:58 PM

    So, you mean real legal experts are disagreeing with Lester Munson’s assertion that the verdict was a “major triumph” for the government? :-)

  2. clydeserra - Apr 15, 2011 at 3:37 PM

    If the other counts were not guilty on perjury and guilty on obstruction, they would be inconsistent and the judge might be able to set it aside. But they weren’t, there was no verdict on the other counts. It is a good issue on appeal, but the Judge will not do anything about it.

  3. lbehrendt - Apr 15, 2011 at 3:52 PM

    Craig, let’s make it clear that what we’re talking about here — the technical term is a “judgment notwithstanding the verdict” — is a very rare event. It requires the judge to say that no reasonable jury could have reached the verdict in question. The example usually trotted out is this: if the jury convicts on a charge where no evidence was presented, then a judgment notwithstanding the verdict is appropriate.

    I know you understand: to get a judgment notwithstanding the verdict, you need an extraordinary case where the jury has gone so far afield that it’s appropriate to let the judge decide the case instead. You need something more than the jury doing something that the judge disagrees with, or even strongly disagrees with. A judgment notwithstanding the verdict means that we’re going to toss one of our most sacred principles out the window: namely, that criminal cases should be decided by juries and not by judges.

    There’s another factor involved. Before the case goes to the jury, the defense made a motion for a “directed verdict”, which in essence is a motion that the case should be dismissed by the judge without letting the case reach the jury. I’m not an expert here and my memories of law school and bar exams are a bit hazy, but I think the grounds for a directed verdict are the same as the grounds for a judgment notwithstanding the verdict. Also, motions for directed verdicts are easier to get, since they don’t require the judge to say that the jury was wrong — in essence, we prefer not giving the jury the chance to be wrong over telling the jury that they were wrong after the fact. In any event, Judge Illston denied the motion for a directed verdict. That may not bode well for the defense effort to obtain a judgment notwithstanding the verdict.

    I wouldn’t bet the family farm on this verdict being reversed.

    • Craig Calcaterra - Apr 15, 2011 at 3:59 PM

      Oh, I agree. I know that it’s the case with JNOV and civil trials. Wasn’t sure if it was the same standard with criminal trials. Seems like a tall order. I think they stand a way, way better shot with an appeal on the jury instructions.

      I guess the only hope here on that would be the judge deciding that it was patently unreasonable for the jury to say that Bonds materially misled and evaded when he actually gave a straight answer to the question at issue.

      But yes, not likely.

      • Kevin S. - Apr 15, 2011 at 4:17 PM

        If that was the case, wouldn’t the judge have thrown out the charge to begin with?

      • clydeserra - Apr 15, 2011 at 4:34 PM

        Judges don’t like to throw things out if there is ANY evidence. They usually deny the mid trial motion to dismiss (or reserve judgement) and hope the jury does the dirty work.

      • lbehrendt - Apr 15, 2011 at 5:49 PM

        Craig, agreed. Kevin, yours is the point I was making … though we have both directed verdicts and judgments notwithstanding the verdict for a reason. It’s possible to have the second without the first. Clyde is right; the judge could pass on the directed verdict, hoping that the jury will acquit. Or, the judge might look at the jury’s specific verdict and say, there WAS a verdict you could have reasonably reached that would have convicted the defendant but this isn’t the one!

        Another option is that the judge will allow the verdict to stand, knowing that no matter what she does the matter is going to be resolved by the Court of Appeals in any event.

        Wait … did I just agree with everyone? What was it I ate for lunch?

    • anxovies - Apr 15, 2011 at 7:09 PM

      I agree. It’s been over 30 years since I took criminal cases but I can’t imagine a judge issuing a jnov in this case. No judge is going to stick his or her neck out like that unless the jury does something really bizarre, especially with the attendant publicity. A big win for Bonds. I’m not a fan of Bonds or steroids, but I wonder why the government is wasting its time on steroid use in professional sports. Any harm is self-inflicted and the penalties in the various leagues are severe enough to deter most athletes from using, Manny excluded. Don’t see many 60 homerun hitters lately. I guess the rationale is that steroids filter down to the colleges and high schools, A similar rationale led to criminalizing recreational drugs like marijuana, and that worked out well, didn’t it?

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