Wednesday, April 13, 2011

A Legal Primer: The Curious Conviction of Barry Bonds

Barry Bonds has been convicted of obstruction of justice, but the jury could not agree on the three perjury charges. As a result, the defense and prosecution agreed to a mistrial on the remaining counts.

Charges Against Bonds & What Happened

Let's first remind ourselves of the charges against Bonds. There were 3 counts of perjury and 1 count of obstruction of justice:

- Two of the 3 perjury counts related to Bonds knowingly lying he took steroids and PEDs.

- The 3rd count (which is Count 2 in the indictment), however, referred to Bonds' denial that Anderson injected him. So this count, unlike the other 2, didn't require that the prosecution show that Bonds was injected with steroids. The prosecution just needed to show that Bonds was simply injected (who cares with what) and that he knowingly lied about it.

So what does this all mean?

(a) The jurors couldn't unanimously agree that Bonds knowingly lied about taking steroids and PEDs, or that he lied about simply being injected. That means that all the charges involving steroids, needles and PEDs failed.

(b) The jurors did unanimously agree that Bonds obstructed justice by giving evasive and misleading testimony. This may have been a compromise as we know on Count 2 the jurors voted 11 to 1 that Bonds was guilty.

Overall, Bonds was not convicted for lying under oath but rather was convicted for being misleading and evasive under oath.

What's Next

Bonds' defence team has requested that U.S. District Judge Susan Illston throw out the obstruction of justice conviction. To conclude that Bonds should be convicted felon on the basis that he was misleading rather than having lied is not something that will sit well with the defence. There is a hearing scheduled for May 20 to start this process.

Is Bonds Going To Jail?

If Bonds had been convicted on all counts, U.S. sentencing guidelines provide that he would have been facing 15 to 21 months in jail, although Judge Illston had the discretion to modify that.

Assuming the obstruction of justice conviction sticks, it is unlikely that Bonds will serve time in jail. This was not a violent crime. As well, Bonds has no prior convictions.

Bonds could get community service and maybe a fine.

Will The Prosecution Retry Bonds?

It's open to the government to retry Bonds on the counts that resulted in a mistrial. While it can retry Bonds, it's unlikely it will - even if the obstruction of justice conviction doesn't stick. 

This has been a a long and expensive trial for the government. There will be significant pressure to direct tax dollars elsewhere (you had your shot, now move on). The state of California is also heavily in debt, and the optics of another expensive kick at the can won't go over well.

As well, this case suffers from obvious weaknesses, including witnesses who lack credibility, Greg Anderson's refusal to testify and questionable evidence.

So unless the prosecution uncovers highly compelling evidence, which does not seem likely, retrying Bonds is an unlikely scenario.

How Did Bonds Get Off?

The prosecution struggled with its case. Bonds' trainer refused to testify thereby resulting in the exclusion of potentially compelling evidence in the form of drug ledgers and calendars that allegedly chronicled Bonds' drugs, doses and cycles. As well, the prosecution's key witnesses, Kim Bell, Steve Hoskins and Dr. Arthur Ting, contradicted each other's testimony and came across as lacking credibility.

Does This Mean Bonds Didn't Do Steroids?

No. The Barry Bonds trial was not a referendum on whether he did steroids. Rather, the issue was whether the prosecution made its case such that each juror believed beyond a reasonable doubt that Bonds was lying when he said he didn't knowingly take steroids and PEDs.

Put another way: it wasn't about any one person's personal belief that Bonds took steroids, but rather whether the prosecution proved he did and lied about it. The jurors could have believed Bonds did steroids but were nevertheless not convinced the prosecution made out its case.

Roger Clemens is warming up in the bullpen.

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