Baseball Crank
Covering the Front and Back Pages of the Newspaper
April 13, 2011
BASEBALL/LAW: Not Buying Bonds

So the verdict has come down in the Barry Bonds trial, and while the jury was unable to reach a verdict on three counts of perjury, they convicted Bonds of one count of obstruction of justice based on his grand jury testimony regarding whether he was given steroids or HGH by his trainer, Greg Anderson, or allowed Anderson or others besides his doctor to inject him. As with the Manny Ramirez story, this is yet another example of how baseball news has been unable to escape the hangover of the PED scandals.

While I recognize that perjury in a grand jury setting is a huge red flag for any prosecutor, I ultimately think this case was a waste of resources by the Justice Department; it's hard to see how the whole steroids ring was that major a law enforcement priority to begin with, or Bonds' testimony that crucial to it, that it was really going to be a useful exercise to pour enormous resources into a public trial of the man. (For background, some thoughts here and here on what makes up a serious enough case of perjury to be worth prosecuting). And that's coming from a guy who's hated Bonds for nearly 25 years now.

But while I'm skeptical of the prosecution, the jury verdict isn't as nonsensical as some people are making it out. Here's what the judge apparently told the jury about the charges. Unlike the perjury statute, on which I did some work in law school, I am not that well-versed in the caselaw under 18 USC 1503, the obstruction statute; according to a summary on the Justice Department's website, obstruction can include the following:

Giving false denials of knowledge and memory, or evasive answers...or false and evasive testimony...False testimony may be a basis for conviction, ...however, false testimony, standing alone, is not an obstruction of justice.

(Citations omitted; it doesn't seem from the cases cited that the Supreme Court has yet laid out a definition of obstruction other than to require a very specific intent in false-statements-to-investigators cases). Here, the judge charged the jury in the perjury counts that they needed to find the following elements:

1. The defendant testified under oath before a grand jury;

2. The testimony described above was false;

3. The testimony was material to the grand jury before which he testified; and

4. The defendant knew that the testimony described above was false and material to the grand jury before which he testified.

A statement was material if it had a natural tendency to influence, or was capable of influencing,the decision of the grand jury to which it is addressed.

By contrast, the obstruction charge:

In order for the defendant to be found guilty of Count 5, the government must prove each of the following elements beyond a reasonable doubt:

1. The defendant corruptly, that is, for the purpose of obstructing justice,

2. obstructed, influenced, or impeded, or endeavored to obstruct, influence, or impede the grand jury proceeding in which defendant testified,

3. by knowingly giving material testimony that was intentionally evasive, false, or misleading.

A statement was material if it had a natural tendency to influence, or was capable of influencing, the decision of the grand jury.

The government alleges that the underlined portion of the following statements constitute material testimony that was intentionally evasive, false or misleading. In order for the defendant to be found guilty of Count 5, you must all agree that one or more of the following statements was material and intentionally evasive, false or misleading, with all of you unanimously agreeing as to which statement or statements so qualify:

1. The Statement Contained in Count One
2. The Statement Contained in Count Two
3. The Statement Contained in Count Three

In short, if the jury found that Bonds' statements were intentionally evasive or misleading, they could convict even without being convinced that they were outright false. That's a significant difference, and would seem to justify the jury in convicting on an obstruction charge on the same facts on which they were unable to convict on perjury. The statement he was convicted on was Statement C in the charge:

Q: Did Greg [Anderson] ever give you anything that required a syringe to inject yourself with?

A: I've only had one doctor touch me. And that's my only personal doctor. Greg, like I said, we don't get into each others' personal lives. We're friends, but I don't - we don't sit around and talk baseball, because he knows I don't want - don't come to my house talking baseball. If you want to come to my house and talk about fishing, some other stuff, we'll be good friends, you come around talking about baseball, you go on. I don't talk about his business. You know what I mean?...

Q: Right.

A: That's what keeps our friendship. You know, I am sorry, but that - you know, that - I was a celebrity child, not just in baseball by my own instincts. I became a celebrity child with a famous father. I just don't get into other people's business because of my father's situation, you see...

Presumably, the jury may have felt that Bonds was misleading or evasive by deflecting this question with a denial that he'd had anybody inject him, without explicitly denying what he was asked - whether Anderson gave him something to inject himself with. Which is a common-sense enough reading of that testimony. At least under the perjury statute, it's not a crime to give a literally true answer that evades the question, the lesson of which - hammered home to most lawyers - is that you need to keep asking until the witness is pinned down. As I said above, I'm not really sure if this is the law under the obstruction statute, but it's safely within what the judge told the jury, so you can't fault them for following instructions.

Posted by Baseball Crank at 6:27 PM | Baseball 2011 • | Law 2009-13 | Comments (4) | TrackBack (0)
Comments

The lack of conviction on the perjury charges could just mean some on the jury weren't able to understand the evidence. Many jurors want thing to be clear cut and extremely obvious. Thing is evidence is not always one simple item that proves guilt all by itself. Instead you need to piece things together. In a he said she said type affair it is easy for a jury to get confused about the meaning of reasonable doubt.

Posted by: largebill at April 14, 2011 1:27 AM

It's beyond a reasonable doubt. It does have to be clear cut. Do I believe Barry Bonds knew he was taking steroids? Given everything, yes. Problem is, a jury can only consider evidence introduced at trial. And when you have a witness state she heard Barry & Greg discuss something (how did that get past hearsay?) and her husband had a falling out with Barry, it's not beyond a reasonable doubt that she may be (intentionally or not) distorting a discussion.

My real problem is that, yes this was a rambling answer. But if it was so important to the investigation and potentially a chargeable offense, I don't think the DA should get off by letting the question be unanswered. The DA should have pressed more on Barry's answer, continued evasion might result in criminal charge, but are we going to charge everyone who goes before a grand jury and gives a rambling answer that the DA may later find inadequate?

Posted by: rbj at April 14, 2011 8:55 AM

What terrible lawyering by the US Attorney's office. Very similar to the inept questioning of Bill Clinton by Ken Starr and his team.

I still don't really see how the jury could have concluded that this answer "had a natural tendency to influence, or was capable of influencing, the decision of the grand jury." The grand jury was investigating BALCO. At most, Bond's answer was irrelevant to that proceeding and, if the questioner was so bad a lawyer as to fail to pin down a responsive answer, it seems awfully unfair to be convicted.

Roger Cossack said on ESPN this morning that he thiks there is a good chance the judge will kick this verdict. Without knowing anything about the judge, I'd tend to agree.

Posted by: Magrooder at April 14, 2011 2:53 PM

another problem is that the original question is vague and confusing.
"Did Greg [Anderson] ever give you anything that required a syringe to inject yourself with?"
The true, literal answer that Barry or any defendant should give to that question is "No."--- because nothing, not even heroin, can be given to someone and 'require' that person to use a syringe to inject yourself with it.
Conversely, read a different and possibly more literal way, the answer would be 'yes'-- 'everything' that could be given for the purposes of injection 'requires' a syringe.
then again, maybe people inject themselves with tools other than syringes. i don't know.

the point is the question is awful on many level. barry can simply claim he misunderstood it and answered it as well as he could.
in fact, his answer, referencing doctors---when there was no reference to doctors in the question could lead a trier of fact to conclude that barry was in fact confused.

in any case, it looks like the jurors basically wanted to convict barry on something and considered this result a satisfying 'compromise'. as this is a predictable result and as the judge's inclusion of this obstruction charge is probably improper, the defense could appeal on the basis of a prejudicial action by the judge. that's probably not necessary, but if i was crafting the appeal, i would include it as a subtle means of pressuring the court.

Posted by: norm depalma at April 17, 2011 3:26 PM
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