Meanwhile, in an alternate universe where the Barry Bonds prosecution was “a triumph” for the prosecution
Dec 19, 2011, 8:12 AM EST
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.
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