May 12, 2011, 12:00 PM EST
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.
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