A few reflections on the Barry Bonds verdict…
1. After the jury came back with a verdict of guilty on the obstruction of justice charge, Bonds’ lawyers made a motion for judgment “not withstanding the verdict,” in effect, asking the presiding judge to overturn the verdict of the jury. Rarely do judges grant such a motion, preferring instead to respect the jury’s decision. But if there was ever a case that cried out for such action, this is it.
The jury decided that Bonds’ response to the grand jury question, “Did Greg Anderson ever give you anything that required a syringe to inject yourself with?” was intentionally “evasive, false or misleading,” and Bonds “knowingly made the statement to keep the grand jury from accomplishing its task.” Bonds offered a rambling and unresponsive reply to the question, describing his relationship with Anderson and suggesting that he (Bonds) was a “celebrity child” because his father was also a Major League player. While the response may have been evasive, there was no evidence that it was “false and misleading.”
Furthermore, it’s impossible to see how Bonds’ response inhibited the government’s investigation of BALCO, the bay area laboratory that was a key manufacturing and distribution center for PEDs, which was the purpose of convening the grand jury.
2. The government may have obtained the verdict against Bonds due to its own incompetence. As someone who has presented cases before a grand jury, I know from experience that it isn’t unusual for witnesses to be unresponsive and evasive. It’s the responsibility of the questioner to keep the witness on track. In this case, the attorney should have instructed Bonds to respond to the question with a yes or no answer, but he failed to do so.
If you want to read examples of “evasive, false and misleading” responses “knowingly made to keep the grand jury from accomplishing its task,” check out President Bill Clinton’s responses before the grand jury to repeated questions about whether or not he had sex with Monica Lewinsky. Clinton’s testimony makes Bonds’ responses seem clear and concise by comparison.
3. If the government wants to get you, in all probability they will. Despite the fact that Bonds had a star-studded legal team – sometimes numbering as many as 13 “suits” in the courtroom at the same time - for which he undoubtedly paid a small fortune, to this point at least, he arguably “lost” the case. If the jury verdict stands – between motions and appeals, it will be months, perhaps years, before the case is final – Bonds will be a convicted felon for the remainder of his life, a status which will impose certain restrictions on his life and lifestyle.
4. Despite the jury verdict, the government “lost.” “We” spent millions of dollars, not to mention the time and effort that could have best been spent prosecuting real criminals, to pursue Bonds for what will end up being in excess of eight years, with the result being a conviction on only one count of the indictment. That spells loser in any language.
5. Because the government knows it lost, it will publicly suggest a retrial of the three counts of perjury on which the judge declared a mistrial. The feds may even threaten to charge Anderson with obstruction of justice for his repeated refusal to testify against Bonds. But the prediction here is that if the verdict is not overturned by the presiding judge or on appeal, the government will declare victory and slink away, shades of how we handled the end of the war in Viet Nam.
6. You can never predict with any degree of certainty how a jury will decide a case. The defense focused their efforts on the three counts of perjury and virtually ignored the obstruction of justice charge until they objected to the judge’s instructions to the jury on what constituted obstruction. Their rationale was that if the jury couldn’t convict Bonds of lying, they couldn’t convict him of obstruction. And it was that confidence – or carelessness - that ultimately tripped up their client.
7. In the end, Bonds was not convicted of perjury, nor was he convicted of using steroids, although there was little doubt he was guilty of both even before the trial began. The jury convicted Bonds of obstruction of justice. However, it seems more likely they came to the conclusion that Bonds is a jerk, something most people who have dealt with the homerun king can agree on. And although Bonds has plenty of company in that regard, being a jerk is not a crime. But most jerks don’t thumb their noses at the government and challenge the feds to come after them, as Bonds once famously did. Seven and a half years later, they got him, even if it wasn’t exactly how they thought it would work out.
Jordan Kobritz is a former attorney, CPA, and Maine Guides team owner. He is an Assistant Professor of Sport Management at Eastern New Mexico University, teaches the Business of Sports at the University of Wyoming, and is a contributing author to the Business of Sports Network. Jordan can be reached at firstname.lastname@example.org.