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Appeals court to reconsider Barry Bonds’ obstruction of justice conviction

Jul 2, 2014, 8:55 AM EDT

Closing Arguments Delivered In Barry Bonds Trial Getty Images

Barry Bonds has already done his time — if you can call 30 days in his mansion “time” — but he is still seeking to have his conviction for obstruction of justice arising out of the BALCO investigation overturned. He just got an assist in that regard from the 9th Circuit Court of Appeals, which has agreed to re-hear his appeal.

Originally a three-judge panel rejected his appeal, but appellants have a right for an en banc rehearing — in which the entire panel of judges determine whether to reconsider — and a majority of the 28-judge panel granted his petition. That vacates last September’s decision against Bonds and gives the entire panel a chance to weigh-in.

At specific issue is whether it’s OK for prosecutors to get an obstruction of justice conviction based on statements that were not held to be perjury. Which is what happened in this case. You may recall that Bonds, under oath gave a long, rambling answer about whether he had ever been injected with drugs, famously going on about how he was “a celebrity child” before finally answering in the negative. The prosecution basically double-charged Bonds for that statement, first with perjury and then with obstruction. The jury decided that was not perjury and acquitted him on that count. They did, however, hold that it was obstruction. The 9th Circuit apparently wants to reconsider whether that’s kosher.

As we noted at length at the time of the conviction, the idea that Bonds’ answer, however rambling it was, constituted obstruction of justice, is a joke. Bonds may have riffed for a few moments, but soon after he directly answered a yes-or-no question with a “no.” A “no” that the jury decided was not a lie. There aren’t many criminal cases in the history of Anglo-American jurisprudence in which a testifying target of a grand jury investigation did not, at least for a moment, try to fudge his way out answering a question. One of the first things you’re taught in law school is that it’s your job as the lawyer to rein the witness in and get him to answer. The prosecutor eventually did that here. And then the prosecutor decided to literally make a federal case out of the fact that a witness rambled for a minute, calling it obstruction of justice. The jury, it’s worth noting, thought it was a joke too, but they felt their hands were tied.

Good for the Ninth Circuit for reconsidering a conviction which was clearly bogus and a charge which was designed as nothing more than a face-saving throw-in for a prosecution that was doomed from the very moment it became clear that the prosecution did not have sufficient evidence to go forward but decided to do so anyway.

The rehearing will take place in September. If it’s successful for Bonds, he’ll have beaten every charge thrown his way. At least as far as the law is concerned.

  1. yahmule - Jul 2, 2014 at 9:05 AM

    Didn’t he already have to serve a month of mansion detention for that charge? How are they ever going to give this man those 30 days of his life back?

    • Old Gator - Jul 2, 2014 at 9:12 AM

      By barring him from his mansion for 30 days, I would think.

    • SocraticGadfly - Jul 2, 2014 at 9:19 AM

      Good thing he didn’t flip a bat, let alone do something to get on Craig’s #disrespecting list.

  2. dlf9 - Jul 2, 2014 at 9:10 AM

    Does anyone recall the order of the different charges on the jury verdict form? This sure seems like the jury reached a compromise deciding he was guilty of something and just picked one nearly at random. I thought the evidence of perjury regarding the denial of ever having received an injection by someone other than the team physicians, team trainer, and personal physicians / nurses was pretty strong (three corroborating witnesses, IIRC) but the others, including the one where he was actually convicted had nothing other than Novitzky’s imagination by the time it got to court.

    • jkcalhoun - Jul 2, 2014 at 12:30 PM

      The jury didn’t pick a charge at random in order to throw the People a bone. On the obstruction count, they were instructed by the judge to consider only a portion of Bonds’ response, but — and this is the subject of one of the articles Craig provided a link to — some jurors felt afterward that if the entire response had been considered, they would not have voted to convict.

  3. clydeserra - Jul 2, 2014 at 9:14 AM

    surely out he’s cleared, he’ll make the hall of fame.

  4. Francisco (FC) - Jul 2, 2014 at 9:32 AM

    Comments about Craig being a steroid-loving-cheating-apologist in 5…4…3…2…1…

    • yahmule - Jul 2, 2014 at 9:55 AM

      Craig, you steroid-loving-cheating-apologist, what’s up with being such an apologist for steroid-loving cheaters?

    • rossjcook - Jul 2, 2014 at 9:58 AM

      I would oblige your countdown with such a screed, but I could never do it with a straight face.

  5. primeny711 - Jul 2, 2014 at 10:35 AM

    Are we (taxpayers) still paying that IRS guy to waste time persecuting PED users?

    • jwbiii - Jul 2, 2014 at 12:58 PM

      Also the Justice Department.

  6. doctorrustbelt - Jul 2, 2014 at 10:40 AM

    I wonder if barry bonds ever paid greg anderson for lying for him?!?

    • Kevin S. - Jul 2, 2014 at 11:30 AM

      Greg Anderson never lied for him. He went to jail for refusing to testify against him.

    • Craig Calcaterra - Jul 2, 2014 at 12:57 PM

      And if you don’t think the feds have been (or at least were, for a very long time) watching Anderson for any evidence that Bonds paid him off, you’re crazy.

  7. pete2112 - Jul 2, 2014 at 11:03 AM

    I can’t think of anything worse when it comes to PED’s and players like Bonds who basically got away with murder when it comes to cheating and then has the nerve to try and have his conviction thrown out even after he essentially was given a slap on the wrist.
    He’s never getting into the HOF, so just admit it to everyone once and for all. Besides, it can’t get much more obvious by just the way you look now as compared to what you looked like your last season playing. Most players fill out and get bloated after playing but you do the opposite. Hmmmm

    • shawndc04 - Jul 2, 2014 at 11:38 AM

      >>then has the nerve to try and have his conviction thrown out <<

      Sorry, but he has the right (and I'm sure that you would exercise it were you convicted of something), to have a conviction reviewed by an appeals court, and apparently enough judges agree that anen banc/p> treatment is warranted.

      • pete2112 - Jul 2, 2014 at 12:21 PM

        Sure. I suppose you believe he played clean his entire career and that he would never do anything to obstruct an investigation to prove that he lied. I’m sure Bonds would have your back too if the situation was reversed.

      • jkcalhoun - Jul 2, 2014 at 12:34 PM

        He used steroids. He nevertheless has the right to appeal his conviction for obstruction of justice. Clear enough?

      • pete2112 - Jul 2, 2014 at 12:40 PM

        Hey jkcalhoun: He’s guilty. Is that clear to you?

      • jkcalhoun - Jul 2, 2014 at 12:51 PM

        I’m aware that jury found him guilty of obstruction of justice, yes. That’s kind of what we’re talking about. But thanks for the reminder anyway.

    • Craig Calcaterra - Jul 2, 2014 at 12:59 PM

      Barry Bonds was not on trial for taking PEDs and cheating. He was on trial for his grand jury testimony. If you can’t see the difference between those two things let me know so I can be sure not ever live in a jurisdiction in which you may appear on a jury one day.

  8. barrybondsisthealltimehomerunking - Jul 2, 2014 at 11:07 AM

    Keep you fingers crossed guys, I appreciate all the support.

  9. ramrene - Jul 2, 2014 at 11:25 AM

    >If it’s successful for Bonds, he’ll have beaten every charge thrown his way. At least as far as the law is concerned.

    In the court of public opinion I find Mr. Bonds guilty of taking steroids for most of his career. I also find that a person’s head does not naturally grow 3-hat sizes during their playing career then shrink those same 3-hat sizes after they quit playing. I further find Mr. Bonds’ responses not credible when asked if he knowingly took steroids.

    I find Mr. Bonds guilty on all charges and as such assign him a permanent and lifetime ban from Baseball’s Hall of Fame. Further, when anyone discusses any of his career statistics they will do so by assigning an asterisk and/or use the phrases “PED user” or “cheat/cheater”.

    May God have mercy on your soul Mr. Bonds.

    • blabidibla - Jul 2, 2014 at 12:13 PM

      I find you guilty of has assed commentary, imaginary hat sizes, and no factual statements of any kind.

    • skerney - Jul 2, 2014 at 2:29 PM

      Barry Bonds only used PED’s from 1997-2004. That is beyond dispute according to the authors of Game of Shadows. By 1997 Bonds was already a Hall of Famer.

      • ramrene - Jul 2, 2014 at 3:08 PM

        And as a PED user we’re supposed to give him the benefit of the doubt? Not a chance. Game of Shadows can only confirm to 1997. Whose to say he wasn’t taking before then?

        As to his HOF before then. Not a chance. He was only a 25hr/30 steals a season player with Pittsburgh. Far from HOF numbers had he kept on that pace.

        Factoring out his PED usage from his career statistics is eye opening. He’s not even a 500 HR guy without his “Clear & Crème”.

      • jkcalhoun - Jul 2, 2014 at 3:25 PM

        As long as we’re counting, it was after 1998 that Game of Shadow alleged that he started using, when he was 34 years old and had already hit 411 home runs and had stolen 445 bases. With a career BA of .290 and SLG of .556.

        His numbers, through his official age 33 season (he was 34 by the end of it), are better than the career number of Hall of Famers Jim Rice, Tony Perez, and a bunch of others, with a better defensive reputation to boot, as he had won 7 Gold Gloves.

        Not as good as Mantle or Aaron through age 33, but much closer than you claim. I think it’s very likely that his remaining career would have been more like Aaron’s than Mantle’s had he not used steroids and that he would have easily finished with an extremely strong Hall of Fame case.

      • ramrene - Jul 4, 2014 at 1:10 PM

        To really understand how much PED’s helped Bonds and his numbers you need a way to factor it out of his cumulative career totals. I wonder if it could be done???

        I wonder if we took the statistics from the top-5 power hitters who DID NOT play during the steroid era (that way we could know the numbers are pure and not influenced by PEDs) and say… broke down a player’s career into 3-segments… the beginning of, his prime, his decline. Then let’s say we averaged those 3-segments individually i.e. the average of those player’s beginning of their career, the average of their career primes, and the average of their declines to get a ratio which could be applied to Bonds career statistics allowing us to extract the outliers which would leave us his performance enhancement.

        I wonder if it could be done???

        It can, and I did. Figuring out how much of Bond’s career statistics were outside the norm of the average of the top-5 (non steroid era) power hitters of all-time proved difficult and eye opening at the same time.

        The dude, would not have been a HOF’er based on his (non PED) career arc.

      • skerney - Jul 4, 2014 at 2:27 PM

        Oh my god you’re a scientist. I wonder if could be done???

      • jkcalhoun - Jul 7, 2014 at 1:08 PM

        The dude, would not have been a HOF’er based on his (non PED) career arc.

        So show us your projection and its rank among current Hall of Famers, so we can see what you did.

        Meanwhile, have a look at Bill James ranking of Bonds in 2001 edition of The Bill James Historical Baseball Abstract, which by virtue of when it was written excludes his PEDs years excepting 1999 and 2000. At that point in his career James has him ranked 3rd among left-fielders all-time, behind Ted Williams and Stan Musial, ahead of 9 other left fielders elected to the Hall of Fame by the BBWAA and 9 more left fielders elected by the “Veterans Committee”.

        There’s a reasonable argument that that’s not too bad a PEDs-free assessment of him. While he gets credit for two of his “enhanced” seasons, neither of which was characterized by the incredible cartoon numbers he recorded from 2001-2004, he’s credited with nothing at all after age 35, when, with a normal decline, he have been capable of hitting like Harold Baines with a better OBP, for a few years anyway.

        Here’s what Bill James wrote about him then:

        Probably the second- or third-best hitter among the 100 listed left fielders (behind Williams and perhaps Musial), probably the third-best baserunner (behind Henderson and Raines), probably the best defensive left fielder.

        So your assessment is different, I guess. Let’s see how you went about it.

  10. happytwinsfan - Jul 2, 2014 at 11:38 AM

    In other legal news:

    The average time spent in prison by people after being wrongfully convicted and later conclusively exonerated by post conviction DNA testing is 13.6 years

    http://www.innocenceproject.org/know/

  11. jimmyt - Jul 2, 2014 at 12:25 PM

    I’m pretty certain he lied but out court system is what it is. I think OJ did it too but…

    • Craig Calcaterra - Jul 2, 2014 at 1:02 PM

      I think he lied. I also think the government knew long, long before taking him to trial that they did not have sufficient evidence to prove that he did and thus never should have attempted to do so.

  12. pete2112 - Jul 2, 2014 at 12:34 PM

    What is it with all of you Bonds apologists? Are you all really this naive? Just so I’m clear, you actually think Bonds never took steroids knowingly and that his late career home run totals had nothing to do with this?? Is it just bonds you think is innocent or is it anyone who has been accused of taking PED’s?

    • jkcalhoun - Jul 2, 2014 at 12:59 PM

      None of this is about whether anyone thinks Bonds knowingly took steroids. It’s all about whether his conviction on the count of obstruction of justice should stand. If you think that any punishment for Bonds is better than none, then you would not want the 9th Circuit Court to overturn the verdict. However, if you’re more interested in how the law is to be applied when citizens are called to testify before grand juries, you’d be less interested in extra-legal justifications for Bonds’ federal comeuppance.

      Really, it’s naive to think that this case is still being heard for any reason that has anything to do with steroids.

      • pete2112 - Jul 2, 2014 at 1:21 PM

        Listen, I totally understand this is not about whether Bonds took steroids or not, but at the end of the day we wouldn’t be here talking about this is if Bonds had just admitted to the facts rather than perjuring himself during his testimony followed by his obstruction. I understand you’re looking at this strictly from a legal standpoint and that he does indeed have the right to appeal his conviction, but I disagree with you in the sense that steroids are what started all of this for him which has led him to this point.

        Also, I’m not talking about every other persons right and ability to appeal their convictions, rather I’m talking about Bonds himself and how he ended up in this situation. He chose to lie and cheat his way into the record books and I just have a hard time when someone like him or Clemens believe their own lies.

    • fifthstarter - Jul 2, 2014 at 1:10 PM

      You’re bad at law. You should probably not comment on legal proceedings in the future.

      • pete2112 - Jul 2, 2014 at 1:24 PM

        Fifthstarter: Thanks for the very good advice. You must be a legal scholar yourself.

      • fifthstarter - Jul 2, 2014 at 1:31 PM

        I am not, which is why I usually refrain from criticizing judges or lawyers when it comes to legal matters.

        But even I can tell that Barry Bonds’ felony is for obstruction of justice, not for taking PEDs, so anyone’s opinion on that matter is immaterial. That you seem unable to discern the difference is mildly embarrassing to watch.

      • pete2112 - Jul 2, 2014 at 1:34 PM

        Well you’re obviously not reading my posts. Yes I understand this is not about steroids…. Got it. Thanks again for the legal advice. Do you have a number I can call if I get into an accident?

      • fifthstarter - Jul 2, 2014 at 1:36 PM

        You’re either lying now or you’re incredibly bad at expressing yourself.

        I didn’t offer any legal advice. You seem very bad at reading comprehension as well.

      • pete2112 - Jul 2, 2014 at 1:46 PM

        You’re all class.

    • shawndc04 - Jul 2, 2014 at 1:21 PM

      Try rereading the posts that disagree with you. It’s really not that difficult to understand. He was not charged with using PEDs. He was convicted of obstruction, which he is appealing. This appeal is not, repeat, not about the use of steroids.

    • clydeserra - Jul 2, 2014 at 2:31 PM

      you kinda seem like a Know nothing.

      So when you get convicted of something. Doesn’t matter what, really, anything will do. No matter you didn’t commit the crime you of which you were convicted, you shouldn’t appeal because I, some guy on the internet, thinks you are a jerk.

      You ok with that?

  13. jwbiii - Jul 2, 2014 at 1:12 PM

    I am not an attorney but I have sat on several (3) juries. If our legal system convicted every witness who babbled for a minute or two before answering a simple question of a felony, there would be no witnesses and out legal system would grind to a halt.

  14. musketmaniac - Jul 2, 2014 at 1:32 PM

    give it a rest. How many times are the same six people going to say the same shyt. Move on

  15. shyts7 - Jul 2, 2014 at 2:16 PM

    Hate to tell you Craig, but, from your article, you come off as surprised that the prosecution charges like this. This goes on all the time. Prosecutors throw as much against the wall and then hope something sticks. They couldn’t convict him of Perjury because he said he didn’t “knowingly” take roids. (Like anyone buys that argument) but they could convict him of the Obstruction charge, most likely since he impeded the investigation by not really answering the question completely. Too much money has already been spent on this case. Let it go. Bonds has served his “time” (If you want to call it that). He is not like an average Joe that a conviction could hurt his job opportunities in the future. This is nothing more than the egotistical Bonds wanting to prove he is right, when in fact everyone knows he took roids and lied about it. He may win his case (I don’t think he will but he may), but what will it accomplish. His time is served. Federal money has been wasted. If the case was still going on, I would say he may or may not have a legitimate complaint, but the case is finished. LET IT GO! This is nothing more than an egotistical power play.

    • clydeserra - Jul 2, 2014 at 2:53 PM

      there are several collateral consequences to being a convicted felon.

      restricted travel, gun ownership, licensing. Coaching his kids teams, etc.

      If you had the money to follow up, you would. And should on a case such as this

    • jkcalhoun - Jul 2, 2014 at 2:58 PM

      Although the public may be thoroughly weary of the case, it may yet matter to Bonds whether he remains a convicted felon.

      And not necessarily only because of his ego. He might want to be allowed vote in federal elections, for example. He might want to regain the right to own and use a firearm.

      He may also want to gain the right to tell the prosecutors to shove their flimsy prosecution up their federal backsides, but this other stuff isn’t trivial. Felony is serious business.

      • shyts7 - Jul 3, 2014 at 4:47 PM

        Do you really think Bonds gives a damn about voting? I kind of doubt it. He might want his gun rights, but, it a lot of states, after a certain period of time, non-violent felons (such as Bonds) can petition to get their gun rights back. Don’t know the process in California so I can’t comment on that.

        This whole thing is based on Bond’s ego, plain and simple. Bond’s was, is, and always will be an egotistical *ss that is more concerned with being #1. As I said before, do you honestly think this has virtually any effect on Bond’s future earnings? I for one hope his attorney’s bleed him dry, sort of like they did OJ. Yeah he may get acquitted of the charge, but, what

        As I said before and I will say it again, if this was the average person, they would of been convicted of the perjury.

      • jkcalhoun - Jul 3, 2014 at 5:46 PM

        I have no idea what motivates Bonds. And I doubt that you have any better idea than I.

        What I do know is that I agree with what others have said: if I had been convicted of a felony, and I had the means and a reasonable chance to overturn the conviction, I would definitely do so. And I suspect that you would too. And we would both reject anyone’s asinine claim that we were doing it solely to assuage our egos.

        if this was the average person, they would of been convicted of the perjury.

        If this was the average person, and the same evidence had been available and no more, the prosecution would never have gone to trial.

        If this was the average person, Jeff Novitsky would never have dived in the dumpster to dig up the evidence they had.

        Whatever. Al though he is clearly not the average person, he has the same rights we have and is exercising them. I say good for him, because the recognition of such rights when they are exercised is good for all of us.

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