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Law geek corner: considering Barry Bonds’ obstruction conviction

May 12, 2011, 12:00 PM EDT

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

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.

  1. halladaysbiceps - May 12, 2011 at 12:16 PM

    Based on the court review, I think it’s pretty obvious he will walk at the end and the prosecution will not pursue the case further.

    Craig, as a side note, I heard your interview with the morning guys on WIP. Some good stuff. Roy Owsalt’s bulldozer love and Blanton’s “Cranky” arm.

    Also giving the Phillies some props. I commend you.

  2. tuftsb - May 12, 2011 at 12:17 PM

    Thanks, Craig.

    Are there grounds for appeal regarding Jusge Illston’s instructions as it relates to the obstruction of justice interpretation?

  3. getmetsmerized - May 12, 2011 at 12:18 PM

    I’m currently a rising 3L, and my first year Crim professor told us that it didn’t matter what the law said; all that mattered was how we felt about it. One time during class while we were reading a case, he yelled out, “You f**k me like my father!” thanks to his misreading of the facts of the case that made him think there was some sort of incest involved.

    Our final exam included a question asking us to read an excerpt from David Simon’s “The Corner,” and write about how the interrogation techniques of the police made us feel. I got one of the better grades in the class because I used the word “sh*t” during an in-class discussion and peppered my final exam with a smattering of f-bombs. He said he could really feel my passion.

    Then he got fired immediately after that semester, and no one has any idea why.

    • Mr. Jason "El Bravo" Heyward - May 12, 2011 at 12:42 PM

      Well at least he wasn’t a motherf@cker.

  4. clydeserra - May 12, 2011 at 12:34 PM

    Thanks for the link. It seems to me that the ASUA had a trail for Mr. Bonds in mind when he was being questioned. The question that stands out to me is the “what is your greatest achievement?” There is no reason to ask that unless you want to use it in your closing. Its not relevant to anything and without a defense attorney in the room no one would object.

    I like this take, I just wonder how an appeals court can deal with it.

  5. Charles Gates - May 12, 2011 at 12:38 PM

    The tyranny of good intentions.

  6. Jonny 5 - May 12, 2011 at 12:40 PM

    I would say this is setting a precedence I don’t like. That is if it isn’t overturned on appeal. But I also think it was a charge specifically used to punish Bonds for his crimes when the jury couldn’t come to an agreement on guilty beyond reasonable doubt for the other charges. “We know you’re guilty, there isn’t overwhelming evidence, so here’s what you get.” And while it may not actually hold water as noted above, it’s probably fair to say he did indeed attempt to mislead which I consider obstruction. We all know he was trying to save his, as well as others a$$es, he had to mislead to do so I think.

    • Charles Gates - May 12, 2011 at 12:44 PM

      You’re bordering really, really close to: mounting a legal defense is tantamount to obstruction of justice.

      • clydeserra - May 12, 2011 at 12:59 PM

        Well in that case the conviction is the one that would be extra-constitutional.

      • rebarratige - May 12, 2011 at 1:31 PM

        Or, alternatively: The court’s job is to enforce “fairness,” whether or not that involves enforcing the law.


    • dlevalley - May 12, 2011 at 12:58 PM

      So, if the prosecution can’t meet their burden of proof, but we all *know* he did and *really* don’t like the guy, the prosecutor should just tack on a lesser charge that the defendant isn’t guilty of but that will make everyone feel real good about the case?

      Sorry, that’s not the America I live in.

      • Jonny 5 - May 12, 2011 at 1:13 PM

        Dlevalley,That’s why I think it’ll be overturned in appeals court. I’m not saying it shouldn’t be either. But by the verdict that MUST be the America you live in. You may not wish to acknowledge it, and that’s fine too.

        Gates, Isn’t that the point of a legal defense? I mean usually there’s a guilty party, and for the guilty to be set free there must be some sort of “obstruction” or misleading of the court and jury. Or all guilty parties would be found guilty.

  7. Mr. Jason "El Bravo" Heyward - May 12, 2011 at 12:44 PM

    I plead the fizzith! The best defense a witness can take.

  8. BC - May 12, 2011 at 1:09 PM

    Nothing has come out in the proceedings that discusses whether Bonds is telling Anderson to go to jail rather than testify, and Bonds is paying him off? That would be grounds for obstruction based on withholding a witness, no? I don’t think anything like that has come out. And if it is going on, Bonds is smart enough to get the guy paid in cash under the table.
    Just another angle.

    • clydeserra - May 12, 2011 at 1:12 PM

      I would bet you have it backwards. Bonds’ answers may have been trying to protect Anderson.

      • jwbiii - May 12, 2011 at 2:02 PM

        Jeff Novitzky’s background is with the IRS. They are really good at following the money. If there was any payoff from Bonds, they would likely have found it and charged Bonds with that.

    • rebarratige - May 12, 2011 at 1:33 PM

      I think you answered your own question there – if it is happening, Bonds is obviously going to keep it so far under the table that it’s also under the floorboards. So, nothing comes out about it.

  9. solidzac - May 12, 2011 at 1:46 PM

    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.

    Not to bring him up twice in the same thread, but David Simon has written that he thinks this exact thing should be done in all cases involving non-violent drug offenders.

    • Craig Calcaterra - May 12, 2011 at 1:55 PM

      And while I love David Simon’s work and share his criticisms of the war on drugs and a lot of other topics, he’s wrong here.

      • solidzac - May 12, 2011 at 4:43 PM

        Any particular reason why? I’m the farthest thing from an authority as you can get, but Simon’s arguments – if I recall correctly being that it’s essentially the only way people can express their dissatisfaction with the war on drugs – were pretty persuasive to me.

      • Craig Calcaterra - May 12, 2011 at 4:46 PM

        Because it’s not true. There is a political process that still works in this country and that process, not the criminal justice system, is where political statements should be made.

        I get where he’s coming from. And I understand that he has lost faith in the process. But that doesn’t mean everyone else should.

      • rebarratige - May 12, 2011 at 5:43 PM

        Craig –

        What sort of evidence would you require in order to convince you that, with regard to the criminal law’s treatment of drugs and drug use, the political process is “broken”? What would have to be the case before you reached that conclusion? Serious question. I think arguments about whether or not politics “works” here or there break down because nobody bothers to define “working” and “not working” in any rigorous way.

      • solidzac - May 12, 2011 at 7:12 PM

        I’d like to make it clear that I would certainly think long and hard before I did something as drastic as undermine the legal process, but I can’t help but think of all the people who get sent to prison because they happened to have some drugs on them. I don’t know that, as a member of a jury, I could look a defendant in the eye and declare them guilty of a crime I don’t agree should even be a crime in the first place. And while I agree that the things need to be changed politically before anything of worth can really be accomplished, it’s a little bit like saying that Rosa Parks should have just sat where she was told and go home to write to her congressman about how unfair segregation was.

      • Craig Calcaterra - May 12, 2011 at 7:45 PM

        It’s probably worth unpacking this a bit. Simple possession cases rarely if ever lead to jury trials. They are their own problem and a problem that leads to greater ones, but when we talk of nullification as a social policy, understand that it would rarely if ever have an affect on the worst atrocities of the war on drugs, which is the criminalization of harmless behavior and the encumbering of otherwise honest people with criminal records that make their lives harder.

        I am all for changing this radically, be it via legalization of some drugs or, at the very least, decriminalization of the offenses related there to. Precious little has been done on these fronts, however. To the extent the process has been utilized, however, there has been some success and public opinion is changing in small but increasingly significant ways.

        When we get to talking about jury trials, however, we are typically talking about crimes that, while they may have drugs at the center, are more serious. Robbery. Assault.Worse. These are not the sorts of crimes I’m comfortable ignoring in the name of social justice.

      • solidzac - May 12, 2011 at 9:16 PM

        Simple possession cases rarely if ever lead to jury trials.

        I’m going to believe you on this one, as you’ve no doubt forgotten more about it yada yada yada, but I’ve heard of several instances of people (second hand all, friends of friends kinds of things) going to prison for years at a time for simple possession. Again, I’m going to assume you’re right and that a) those are the exception and b) they had criminal records beforehand.

        Finally, I’m pretty sure Simon only advocated nullifying specifically non-violent cases, so I always assumed that if robbery, assault, and worse were involved, he would (and would expect others to) withdraw their support for such an action.

      • Craig Calcaterra - May 12, 2011 at 9:26 PM

        To be clear: lots of people go to jail because of simple possession. It’s often on plea deals, though due to the threat of taking it to trial, or else it’s stuff that’s charged along with simple possession that gets to a jury. That shit is awful, and I don’t think it should happen. It’s not terribly common though for someone to be indicted and tried to a jury on such a charge alone.

        The real pernicious thing about possession beefs are that they give people records and then quickly turn into multiples, and then because of our dumbass “get tough on crime” culture, that turns into serious time and then lives are ruined and people become unemployable or are indoctrinated into a criminal lifestyle while in prison.

        We’re getting far afield here now, but yeah, I think we agree on the nature of the drug war. I just don’t think that there has been a serious effort to do much to stop it via political means yet, and I’d be loathe to advocate using the jury system to do it because of the damage you can do to the jury system in the process.

      • gwlaw - May 18, 2011 at 12:06 PM

        Craig, you didn’t explain jury nulification well, you’re missing key aspects. You should go buy and read the book that your professor wrote about it about two years ago, you’ll understand it better. The most important thing is that it is a right, has always been around, and is just another check on the system (a very strong system with few checks).

        Love, a current student who loves the professors you tried to make fun of and am glad they’re still here, making up one of the best faculties around.

  10. superpriebe - May 12, 2011 at 2:33 PM

    “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.”

    I’m not a lawyer, but I thoroughly enjoy reading the Bonds posts (and your other law-related posts in general). I’d say they’re among my favorite things to read on this blog. Keep ’em coming.

  11. genericcommenter - May 12, 2011 at 4:48 PM

    Professor b. *might* not be all that bad, especially if his view is being oversimplified to the extent I believe. I think jury nullification is a valid tactic in the case of unjust laws, and there is no doubt some laws are both unjust and applied disproportionately ( both in bringing charges/indictments and punishments) for different classes.

    • nixonotis - May 12, 2011 at 4:59 PM

      But then you’re a politician, not a lawyer.

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