Confused Verdict Means Bonds Will Walk

(originally published April 14, 2011)

Don’t be surprised if Barry Bonds walks.

He did it 2610 times in his career including the postseason, and he may well do it again after Wednesday’s verdict in his Federal trial on perjury and obstruction of justice charges related to his grand jury testimony about steroids.

U.S. District Court Judge Susan Illston granted a mistrial because of a deadlocked jury on the three specific counts of making false statements under oath.  The jury found Bonds guilty on one count of obstruction of justice for making evasive or misleading statements in his testimony.

The three allegedly false statements the jury considered were that Bonds had never knowingly taken any steroids provided to him by his trainer, Greg Anderson; that he had never received injections from anyone other than a doctor, and that Anderson had never injected him or given him anything that required injection; and that he had never gotten anything he understood to be human growth hormone from Anderson.

The obstruction count declares that “Barry Lamar Bonds, unlawfully, willingly, and knowingly, did corruptly endeavor to influence, obstruct, and impede the due administration of justice, by knowingly giving Grand Jury testimony that was intentionally evasive, false, and misleading, that is: (a) The false statements made by the defendant as charged in [the specific perjury counts] of this indictment; and (b) Evasive and misleading testimony.”

So far so clear, if somewhat vague.

But trials don’t do “vague;” they require specific acts demonstrated and proven in specific ways.  (This is a good thing, by the way, however you may not like it in any single case.)

The government agreed in the case that the instructions to the jury for the obstruction charge would indicate that it must “agree unanimously as to which statement or statements constitute obstruction of justice.”  This is essential if the verdict is to be truly unanimous; if six jurors believe one statement to be an obstruction, while the other six select a different statement, they are not in unanimous agreement.  (I am grateful to the legal blogger Jack Townsend for this explanation; his blog often features clear writing and thinking on otherwise impenetrable subjects.)

So if the jury couldn’t come to a unanimous vote on any of the perjury counts, on what basis did it reach its conclusion about obstruction of justice?  The verdict reeks of compromise, especially with jurors acknowledging that the deadlock on the perjury charge about injections involved an 11-1 vote favoring conviction.

Judge Illston scheduled a hearing for May 20.  Bonds’s lawyers will argue that the obstruction count should be thrown out because there was no clear agreement on an underlying action.  Illston may well agree.  If so, the government’s best course will be to threaten a retrial on the perjury charges, with an eye toward negotiating a settlement in which Bonds accepts a lesser, non-felony charge.

Even if the obstruction count is upheld, it is distinctly possible Bonds will spend no time in jail.  In the earlier trials involving grand jury testimony about performance-enhancing drugs and the Bay Area Laboratory Co-operative (BALCO), Illston gave cyclist Tammy Thomas six months of home confinement and five years’ probation for perjury and obstruction of justice, and she sentenced former track coach Trevor Graham to one year of home confinement and five years’ probation for making false statements to a federal agent.

It will be difficult to send Bonds to jail for a less-specific charge.

The verdict was a disappointment to anyone hoping for a definitive decision on Bonds’s place in baseball’s steroid era.  Regardless of the verdicts of juries (to borrow a phrase from Kenesaw Mountain Landis and the Black Sox scandal), we are allowed to consider facts not put into evidence in a courtroom.  We are not obliged to ignore the evidence of our eyes, or the statistical aberration that is the Bonds career.

A hung jury is not a vindication; “innocent until proven guilty” is a legal concept, not a moral one.  Feel free to judge Barry Bonds however you like.

Lying to a grand jury is no small thing.  Neither is using public money to try to regulate through legal action a sport that chose not to regulate itself.  A confused, murky verdict is probably the perfect outcome for this whole, sorry mess.

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