If you’re sick and tired of reading or hearing the name Barry Bonds, then this column isn’t for you. But if you’re interested in justice and protection from an abusive government, read on.
Bonds is in the news again because his 2011 conviction for obstruction is on appeal before an 11 judge panel of the Ninth Circuit Court of Appeals. In 2013 a three judge panel of the appellate court unanimously agreed with the District Court decision. But when Bonds’ attorneys appealed to the full court, a majority of the 28 judges thought a larger panel should hear the case.
The saga began in 2003 when Bonds testified before a grand jury investigating the illegal use of performance enhancing drugs in baseball. As a result of that testimony Bonds was indicted in 2007 on a number of criminal charges. The jury couldn’t reach a verdict on three charges of perjury but convicted Bonds of felony obstruction for giving a 234 word rambling response to a prosecutor’s question on whether his trainer, Greg Anderson, ever gave him “something to inject himself with.”
In order to convict Bonds, his non-response must have been an attempt to corruptly “obstruct, influence or impede the grand jury proceeding…by knowingly giving material testimony that was intentionally evasive, false or misleading.” Bonds’ digression was nothing of the sort. The guilty verdict on obstruction was most likely a compromise, intended to appease jurors who wanted to convict Bonds of perjury.
No one should blame the jury for wanting to convict Bonds of something. During the trial, Bonds’ mistress testified that he repeatedly abused her but he wasn’t charged with abuse. Bonds was the most polarizing, disliked player of his generation but being self-absorbed and an egomaniac isn’t a crime. Unfortunately for the government, neither is ranting about your childhood and friendship, the essence of Bonds’ wayward response that triggered the obstruction charge.
The prosecutor immediately followed up Bonds’ response with a similar question, to which Bonds responded, “No, no.” Furthermore, Bonds responded in the negative to similar questions later in his testimony. But because the government had to wait approximately one minute for an answer to the original question, Bonds is guilty of obstruction? That constitutes government run amok.
Judge Susan Illston sentenced Bonds to 30 days of home confinement, two years of probation, 250 hours of community service and a $4,000 fine, a slap on the wrist for an obstruction conviction but an absurdity considering that Bonds wasn’t guilty. But like the jurors, the judge also made compromises. She dismissed several counts against Bonds in the pretrial stage but allowed prosecutors to proceed on the obstruction charge, despite offering her opinion that the government was grasping at straws. After more than a decade and a waste of an estimated 50 million of our tax dollars, the Court of Appeals has an opportunity to right a wrong.
Oral argument in Bonds’ case was heard last Thursday. The judges’ questioning of attorneys suggested that they have doubts about the conviction. Several judges voiced skepticism about the verdict considering that the Court has previously ruled that it’s a prosecutor’s responsibility to pin down a witness who gives an evasive answer.
Judge William A. Fletcher in particular honed in on the crux of the case against Bonds, comparing the prosecution’s definition of obstruction with lawyers who evade questions in civil litigation with the intent to mislead. He asked the government’s attorney if such action would constitute criminal behavior. When she responded in the affirmative, Judge Fletcher then asked, “So how many San Francisco lawyers do you intend to put in jail? That is common behavior in civil litigation. Have you criminalized half the bar…I find your reading of the statute absolutely alarming…maybe all of the bar is in big trouble.”
Of course, questions addressed to counsel in oral argument don’t necessarily portend a decision one way or the other. Judges relish the give and take inherent in Socratic debate. On the other hand, for over an hour the Court served notice on the government that it was deeply troubled by the decision which, if it stands, would establish a precedent that potentially endangers all of us.
Here’s hoping that when the Court of Appeals decision comes down next year, the judges finally get it right and overturn Bonds’ conviction.