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Meanwhile, in an alternate universe where the Barry Bonds prosecution was “a triumph” for the prosecution

Dec 19, 2011, 8:12 AM EDT

lawsuit gavel

ESPN’s legal expert Lester Munson has been in love with the Barry Bonds prosecution for several years now. Specifically, the Barry Bonds prosecutors as well as the feds behind the BALCO investigation. And it has led to some pretty wacky analysis of that case on his part.

He was wildly incorrect about earlier evidentiary rulings. And he wasn’t merely mistaken about them. He was so awfully mistaken about them that it was clear to anyone who understood the issues that, the moment he wrote what he wrote, his take was simply incoherent. He likewise responded to the Bonds verdict in a manner that was so far outside of the mainstream that multiple legal experts thought he was smokin’ banana peels.  It’s one thing to simply have a different opinion about a case and its dynamics, but Munson’s takes have been the stuff of an alternate universe.

That trend continued late Friday night when Munson did a Q&A about the Barry Bonds sentence.  I don’t know what your take is on the prosecutors and the federal agents who spent nearly a decade and hundreds of millions of dollars going after a tiny drug operation with a tiny client list, but here’s Munson’s take:

… the prosecutors — who occasionally stumbled — rallied brilliantly at the conclusion of the Bonds trial and obtained the conviction for obstruction of justice and were one vote shy of a conviction for perjury. This outcome, even with the light sentence, is a triumph for investigative agent Jeff Novitzky and prosecutors Jeff Nedrow and Matt Parrella.

A triumph? Rallied brilliantly? It was originally an indictment of more than a dozen counts. They got whittled down to four. They whiffed on the three biggest of those and the fourth one stands an excellent chance of being overturned on appeal because it was clearly counter to the evidence. And what’s that stuff about “one vote shy of a conviction for perjury?”  A jury’s verdict is a pass/fail test. The prosecutors failed it. Close counts for nothing.

Of course, Munson doesn’t think this is an unmitigated triumph. He acknowledges that it didn’t all go perfectly. Why?

The problem that led to the conviction on only one count and a deadlocked jury on three counts of perjury was not the quality of the work of the agents and prosecutors. The problem was the refusal of Bonds’ personal trainer, Greg Anderson, to testify against him. For reasons that are not yet known, Anderson went to jail twice instead of offering evidence against Bonds. Anderson’s refusal to testify prevented the prosecutors from connecting Bonds to positive drug tests and other compelling evidence of Bonds’ use of steroids.

No, Anderson wasn’t there and, yes, things would have been totally different if he had been, I’m sure. But the unavailability of that evidence was a known fact for years before trial. Yet the prosecutors pushed on anyway. They pushed on knowing that they could not make an essential part of their case. This was awful tactical and legal judgment, yet Munson absolves the prosecutors totally. He makes it sound like they got blindsided.

All of that makes Munson sound like an apologist for the prosecution. But don’t worry, he’s not just an apologist. He is a cheap-shot artist, at least when it comes to the judge:

Q: The jury concluded that Bonds obstructed the investigation of the grand jury. Why wouldn’t the judge support the crime-fighting efforts of the grand jury by sentencing Bonds to the penitentiary?

A: The federal judge who presided over the Bonds trial is Susan Illston. She is a San Francisco Democrat and a bit of an enigma … It was one of many decisions made in the course of the BALCO prosecutions that indicated Judge Illston just didn’t get it … It was clear throughout the Bonds trial that Illston would rather be doing something else. The federal sentencing guidelines suggest a term of 15 months in prison. Illston ignored the guidelines and told Bonds he would be confined for a month in his mansion.

In other words, Munson is saying that Ilston was politically-motivated, dumb or simply didn’t care about her job. If one of the prosecutors in this case said these things they’d be in front of Judge Ilston on contempt charges. I don’t know if Munson still has an active legal license (UPDATE: He doesn’t, and for good reason), but lawyers are held to higher standards than others when it comes to criticizing judges and no officer of the court should ever be heard to say such things about a federal freaking District Court judge.

And decorum aside, on the merits, he’s just wrong. Lawyers who have practiced before Judge Ilston have a wildly different opinion of her.  And “sentencing guidelines?”  They are just that: guidelines. An important part of the judge’s job is to, you know, judge. Munson neglects to mention that Ilston followed the report and recommendation of the probation office to the letter. She took all information at her disposal into account before she sentenced Bonds. Munson would have her do something … less.

He then goes on to slam Ilston’s overall sentencing practices, wondering why so many of the BALCO figures got light sentences, and why the attorney who leaked the grand jury testimony to the “Game of Shadows” authors got two years. I suppose it’s possible Munson just doesn’t realize that perjury and obstruction are far less serious crimes than the leaking of grand jury testimony by an attorney in a case. But that interpretation — that he’s simply ignorant of the law — doesn’t exactly flatter Munson any more than one in which his take on this was a product of him being an anti-steroid zealot.

But that’s pretty par for the course with Munson. His take on this case has, from the beginning, been colored by his views on PEDs and the personalities involved. And that’s fine for anyone else who wants to opine on all of this. But Munson is supposed to be providing legal analysis of this stuff, and that analysis has been way, way off the mark as a result.

The only possible explanation for it is either rank incompetence (which I do not believe, because I’ve admired his handling of other sports-related cases in the past) or that his judgment is seriously clouded by his views of steroids in sports. He doesn’t like Barry Bonds. Great. No one really does. But the difference is that Munson has allowed that view to paint such a wildly misleading picture of the legal landscape in which that case resides, and in doing so, he has done a disservice to his readers.

  1. drmonkeyarmy - Dec 19, 2011 at 8:20 AM

    Craig,
    You could have quit after the phrase “ESPN legal expert” and I think most of us would have assumed he was a clown.

    • skids003 - Dec 19, 2011 at 8:24 AM

      Or just “legal expert.”

      • brohancruyff - Dec 19, 2011 at 10:23 AM

        Or “ESPN.”

    • Old Gator - Dec 19, 2011 at 4:14 PM

      Isn’t there a Munson doing trip and fall in Palookaville?

  2. jrgallo - Dec 19, 2011 at 8:25 AM

    Get ‘em Craig!

  3. churchoftheperpetuallyoutraged - Dec 19, 2011 at 8:35 AM

    The federal sentencing guidelines suggest a term of 15 months in prison. Illston ignored the guidelines and told Bonds he would be confined for a month in his mansion

    I’m going to repeat this because it bears repeating:
    Leonard Little, who in ’98 killed a woman while driving drunk and later was arrested again for DWI in ’04, Donte Stallworth who killed a man in the early morning hours after drinking all night, and Ray Lewis who pled guilty to obstruction of justice when his friends killed two men, all served less COMBINED time than the prosecutors wanted Bonds to serve.

    • Francisco (FC) - Dec 19, 2011 at 8:46 AM

      I’m reminded of the reality disconnect in other areas of interest. For the longest time, I’ve seen more people concerned about the levels of nudity shown in TV citing children, but they’ll happily let the kids watch all sorts of violence on the tube…

    • JBerardi - Dec 19, 2011 at 9:18 AM

      Josh Lueke, rapist, continues to have a career in professional athletics. He’s not the only one.

    • kellyb9 - Dec 19, 2011 at 9:23 AM

      Of course, there’s also Plaxico Burress who was arrested for wearing sweatpants to a night club. All jokes aside, there’s a complete disconnect between justice with rich people and justice with us normal folks. I guess if you have enough money to throw at your problems, they’ll eventually go away.

      • JBerardi - Dec 19, 2011 at 9:32 AM

        Barry Bonds is rich, but he’s not “above the law” level rich. He just wasn’t guilty of (almost) anything they charged him with. The corporation running those “look how awesome the gulf coast is now!” ads on the football game you watched yesterday? That’s what being above the law looks like.

      • Kevin S. - Dec 19, 2011 at 11:09 AM

        Not sure how you can claim money can buy your way out of legal issues in the same post you mention Plaxico Burress, who got the book thrown at him likely because he was a professional athlete.

      • cur68 - Dec 19, 2011 at 2:56 PM

        PB got the book thrown because he ignored legal advice: take the plea deal. Instead he went to court, was found guilty of doing exactly what they said he was guilty of and, boom, went to jail. If Martha Stewart had taken a plea deal she also wouldn’t have gone to jail. Hubris.

      • churchoftheperpetuallyoutraged - Dec 19, 2011 at 3:23 PM

        RE: Burress, wasn’t there mandatory sentencing regardless of whether he took a plea deal or not?

      • Kevin S. - Dec 19, 2011 at 4:22 PM

        If he took a plea deal, presumably it would have been to a lesser charge. Although who knows what would have happened had Bloomberg not turned the incident into a political grandstanding ploy.

  4. Jonny 5 - Dec 19, 2011 at 8:53 AM

    The prosecution failed it’s citizens in a miserable fashion. Over 100 million dollars of our tax dollars spent chasing a petty drug user. Why? His celebrity. The Federal gov’t broke more laws than Bonds imo. After the Feds learned the testing agencies for MLB would challenge the subpoenas in a court of law, they raided the facilities to rob them of this chance to lawfully challenge them. They illegally leaked players names. They intimidated Anderson’s wife in an attempt to make him talk. This all sounds worse to me than a man trying to keep from self incriminating himself.

    • JBerardi - Dec 19, 2011 at 9:17 AM

      Yeah, but the Feds didn’t rob aging baseball writers of their favorite statistical binkey… isn’t that the real crime here? I mean, not in the legal sense, but in the “whhhhhaaaaaaaaaaa, I don’t like Barry Bonds and I’m a whiny baby, someone do something about it!” sense. I think we can all agree that’s what’s important here.

      • churchoftheperpetuallyoutraged - Dec 19, 2011 at 9:41 AM

        Statistical binkey, i’m totally stealing that!

      • Jonny 5 - Dec 19, 2011 at 10:03 AM

        Good one Berardi!! LOL!

  5. hittfamily - Dec 19, 2011 at 8:56 AM

    Why would a baseball forum hold a Q and A session? If people have questions, shouldn’t they just google it.

    • Alex K - Dec 19, 2011 at 9:57 AM

      Get over it.

    • paperlions - Dec 19, 2011 at 10:11 AM

      Because there are some questions that are easily answered with a quick search, and there are some that are not. Telling the difference between the two types of questions is not difficult. For example, if you google asshat, you will see that it means “One who has their head up their ass. Thus wearing their ass as a hat.” See, that is a very specific bit of information that most people would realize could be easily found in a few seconds.

      You are an asshat.

  6. jwbiii - Dec 19, 2011 at 8:58 AM

    “I don’t know if Munson still has an active legal license’

    No.

    After his admittance to the Illinois State Bar in 1976 and practicing law for 13 years, it appears Munson, facing multiple charges of misconduct occurring during a time he was already on probation by the Ilinois Bar, voluntarily agreed to discontinue practicing law. As a mitigating factor in his misconduct, Munson pointed to his alcoholism. In its 1991 decision to suspend Munson’s law license because of his continued misconduct while on probation, the Disciplinary Commission wrote:

    “On September 30, 1986, Respondent was suspended from the practice of law for three years and until further order of the Court, and this suspension was stayed and Respondent was placed on probation for three years with conditions. In re Munson, No. 85 CH 57, M.R. 4029. Respondent’s misconduct included his neglect of three client matters as well as misstatements regarding the status of two of the client matters. Respondent’s misconduct was attributable to his alcoholism.”
    .
    “In October 1989, Respondent discontinued practicing. Respondent has no current intention to return to the practice of law.”

    http://liestoppers.blogspot.com/2007/03/lester-munson-legal-expert.html

    “I’ve admired his handling of other sports-related cases in the past”

    I trust that the Duke lacrosse case was not one of them.

    • churchoftheperpetuallyoutraged - Dec 19, 2011 at 9:11 AM

      It might have been on his old website, but i’m pretty sure Craig tore Munson a new one due to Munson’s comments on that case

      • churchoftheperpetuallyoutraged - Dec 19, 2011 at 10:19 AM

        Here’s a previous article from 2/27/09:

        http://www.hardballtimes.com/main/shysterball/article/a-contrary-view/

        And the Duke Lacrosse Case had to do with Selena Robert’s handling of the case, which isn’t relevant to this so I won’t link it.

  7. JBerardi - Dec 19, 2011 at 9:24 AM

    Geeze. 8 am on a monday morning and Craig is already in full #beastmode.

  8. deathmonkey41 - Dec 19, 2011 at 9:36 AM

    And on a completely-related note, this is just reason 1,208,378,472 of why people don’t want to pay taxes to the government.

    • danandcasey - Dec 19, 2011 at 10:24 AM

      Everyone seems to be forgetting the $4000 fine that Bonds has to pay — that is money in the government’s pocket.

    • JBerardi - Dec 19, 2011 at 3:23 PM

      Ah, another good Patriotic American. We want to be the greatest country in the world, but not if we have to pay money for it. If America could buy it’s government at Wal-Mart, it would. Then it would complain when it breaks in a month.

  9. jkcalhoun - Dec 19, 2011 at 9:47 AM

    Craig’s link to the response to Mr Munson’s analysis of the verdict at Hanging Sliders appears to be broken. I think the article he wanted to link to this one.

    • hangingsliders - Dec 19, 2011 at 10:19 AM

      That’s it. When I redesigned my blog, the links changed. Thanks!

      • churchoftheperpetuallyoutraged - Dec 19, 2011 at 10:21 AM

        Dumb question as IANAL, but when my brother was waiting on his results from the Bar, we joked with him calling him a lawyer and he got super offended, saying we couldn’t refer to him as one until he passed. Doesn’t that work in reverse? If Munson can’t practice law per his agreement with the IL Bar Association, can he still call himself a lawyer (refering to the back and forth posted on your website)?

      • jwbiii - Dec 19, 2011 at 10:51 AM

        He calls himself a “legal expert,” despite often displaying his lack of expertise. I guess his employers believe him.

      • churchoftheperpetuallyoutraged - Dec 19, 2011 at 6:18 PM

        @jwbiii

        Here’s his tagline at the bottom of the espn report
        Lester Munson, a Chicago lawyer and journalist who reports on investigative and legal issues in the sports industry, is a senior writer for ESPN.com.

  10. giant4life - Dec 19, 2011 at 10:26 AM

    I do not know how much this witch hunt cost…..but it had to be monumental…..This was biggest waste of money in baseball…….well, except for the signing of Barry Zito.

  11. anderson1953 - Dec 19, 2011 at 1:35 PM

    As one commenter already noted, Munson’s coverage and commentary on the Duke Lacrosse case really was in the category of outright malpractice. The guy literally got everything wrong, including making a prediction that the three players would be pleading out after prosecutor Mike Nifong got caught lying in court.

    He continued to attack them and repeat false accusations. And ESPN continued to employ him afterward? The guy is a blubbering fool!

    • jkcalhoun - Dec 19, 2011 at 2:37 PM

      I believe that he wrote for CNN-Sports Illustrated regarding the case involving the Duke lacrosse team. He apparently doesn’t write for them anymore, and ESPN.com is his current gig.

      Nice pick-up, ESPN.

  12. tuftsb - Dec 19, 2011 at 1:39 PM

    http://durhamwonderland.blogspot.com/2007/03/sports-reporters.html

    Lester Munson and the Duke Lacrosse Case…..

    Craig, can we submit your resume for the ESPN job?

  13. buffalomafia - Dec 19, 2011 at 2:19 PM

    Why do pro athletes & actors/actresses from Hollywood get to beat the law?

    Now Bonds will get a job with ESPN’s Baseball Tonight & make millions!

    Know wonder why this country is so Fu$!@d up!

    • churchoftheperpetuallyoutraged - Dec 19, 2011 at 2:29 PM

      Wait, how did Bonds beat the law? Or are you just ranting?

    • JBerardi - Dec 19, 2011 at 3:27 PM

      Are you aware that not being liked by you isn’t a federal offense? Just because you hate Barry Bonds doesn’t mean there’s a legal case against him.

  14. buffalomafia - Dec 19, 2011 at 2:43 PM

    Listen here church Bonds is guilty hands down! If you or I would have gotten caught we would be doing time & our court date & sentencing would have been swift!

    • churchoftheperpetuallyoutraged - Dec 19, 2011 at 2:50 PM

      Guilty of what?

      • Kevin S. - Dec 19, 2011 at 2:55 PM

        Being allowed to ramble on for ninety seconds without interruption before finally answering a question, obviously.

      • Alex K - Dec 19, 2011 at 3:20 PM

        Being a jerkface and robing aging baseball writers of their favorite statistical binkey (Thanks for the absolute gold JBerdardi!)?

  15. anderson1953 - Dec 19, 2011 at 3:49 PM

    You or I would not have been dragged into a federal grand jury hearing with a prosecutor’s intention of trying to set a perjury trap. I’m sorry, but even though Bonds is an ass, nonetheless this is a bogus case.

    I would urge all of you who think that Lester Munson is anything but a lying fool to read the totality of his Duke lacrosse coverage. Even today, the guy insists that Nifong had a strong case and somehow the defense managed to trick everyone. For example, when Reade Seligmann was able to show conclusive proof that he was nowhere near the party when he supposedly was raping Crystal Mangum, most people took a hard took at what Seligmann presented.

    However, Munson started screaming about “obstruction of justice.” Here is a guy who did not get one thing correct in his coverage; not one thing. And he works as an “expert” for ESPN? Where do they get these fools?

  16. tuftsb - Dec 19, 2011 at 4:08 PM

    There’s a reason that they say attorneys practice law. It’s pretty obvious that most lawyers – despite a degree and courtroon expereince – aren’t yet good enough at their profession.

  17. tuftsb - Dec 19, 2011 at 4:11 PM

    http://www.azlyrics.com/lyrics/ledzeppelin/rambleon.html

    Dedicated to Barry…

  18. garlicfriesandbaseball - Dec 19, 2011 at 4:23 PM

    The “obstruction of justice” charge was a joke to begin with. The prosecutors decided Bonds was “vague” in one of his answers and that’s what lead to this charge. It’s almost impossible to defend against this charge. I don’t get how the jury could not find him guilty on all the other charges but then find him guilty of this one. The way I see it is, the only way justice can be obstructed is if the jury is unable to come to a decision because of it. See “Bonds and Steroids” http://wp.me/pV4Gn-Qi

  19. buffalomafia - Dec 19, 2011 at 4:28 PM

    There isn’t any evidence that steroids make u a better player! MLB really went after the top guys? What about the other 250 players that tested possitive? You never really hear there names mentioned. Bonds, McGuire, belong in Hall of Fame!

    • mojosmagic - Dec 19, 2011 at 4:58 PM

      That is a false and stupid statement. Why do you think they took steroids? For their health? So their balls would shrink?

      • Kevin S. - Dec 19, 2011 at 6:49 PM

        Players do all sorts of stupid shit because they think it might help them, whether it actually does or not. See: Phiten necklaces, deer antlers, not stepping on the base line, rally thongs, etc.

    • churchoftheperpetuallyoutraged - Dec 19, 2011 at 5:04 PM

      Holy crap what are you ranting about? You still haven’t answered my question about what Bonds is guilty of. And where the hell did you get 250 players testing positive? Are you talking about the list of 103 people that failed in ’03? The list that’s federally sealed and leaking the info would break federal laws?

    • jwbiii - Dec 19, 2011 at 5:05 PM

      There’s no investigator or DA who wants Paxton Crawford’s scalp (just to pick a name at random) on his wall.

    • jwbiii - Dec 19, 2011 at 5:12 PM

      church, The number of players who have been suspended is closer to 500.
      http://bizofbaseball.com/index.php?option=com_content&view=article&id=996&Itemid=85
      Of course, most of them are teenage DSL pitchers.

      • churchoftheperpetuallyoutraged - Dec 19, 2011 at 5:23 PM

        @jwbiii

        But those names are reported, as you’ve shown they are on a website. No clue what buffalo is referring to as every single time a player fails a test I see an article on espn about it.

  20. WhenMattStairsIsKing - Dec 19, 2011 at 4:50 PM

    I really appreciate having a baseball writer with a strong legal background. Thank you for the analysis, Craig. One of the main reasons I’ve been following your work for several years now!

  21. diditforthelulz1 - Dec 19, 2011 at 5:18 PM

    This guy reminds me of the Black Knight from The Holy Grail…”Your arms off!” “no it isn’t”

  22. buffalomafia - Dec 19, 2011 at 5:40 PM

    Hey Church! Bonds is guilty of steroids use.

    Second, why didn’t MLB go after Bud Selig? He knew what was happening & did not say a word because MLB was making millions of dollars & the fans were coming back to baseball?

    It’s like me being a drug kingpin & 200 people are my sellers & they get caught & the drug boss doesn’t? Selig is just as guilty?

    Regardless of Bonds steroid use he belongs in thevHOF?!

    • Alex K - Dec 19, 2011 at 5:58 PM

      He wasn’t on trial for steroid use. He was on trial for perjury and obstruction of justice.

      • churchoftheperpetuallyoutraged - Dec 19, 2011 at 6:17 PM

        Pretty much what I was getting at. Hook line and sinker.

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