Bonds, baseball, and prosecutorial BS

|The Volokh Conspiracy |

Eugene already noted (here) the excellent decision last week by the en banc 9th Circuit to vacate Barry Bonds' conviction for obstruction of justice. To the extent we care about it at all (which is, for many people, not a very great extent), I suspect that we have all, by now, processed the Bonds baseball story, and are sick of hearing more about it. But having read through the various opinions in Bonds' appeal, I suddenly see that the Bonds story turns out to be a more interesting law story than it is a baseball story.

It's another example—Martha Stewart and Scooter Libby come immediately to mind, but there have been many others—of a high-profile defendant investigated for wrongdoing by the prosecutors at great length (and great expense), who is then charged not with the offense for which he/she was being investigated but instead for impeding the prosecutors—providing false information, or perjury, or obstruction of justice.

It's a very disturbing trend: "You didn't help us get information we need to send you to prison; turns out we can't actually charge you with anything else, but a charge that you got in our way will at least make it look like we weren't wasting time and taxpayer dollars"—and the Bonds case is a startling illustration of the phenomenon.

Here, in its entirety, is the basis for the charge of obstruction of justice: Before the grand jury, Bonds testified as follows:

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

Bonds: 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.

Bonds: 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.

That, I was rather appalled to discover, is it—the entire foundation for the criminal prosecution for obstruction of justice. [There were other obstruction of justice, and perjury, charges brought against Bonds in his criminal trial in the court below, but he had been acquitted of all of them except for this single obstruction charge, so it was the only thing remaining in his appeal to the 9th Circuit].

A rambling, non-responsive, almost-incomprehensible response, to be sure—but obstruction of justice?? The obvious response of the prosecutor should have been—"Mr Bonds, can you please answer the question: Did Greg ever give you anything that required a syringe to inject yourself with." And, in fact, as Judge Kozinski points out,

"Defendant was again asked about injectable steroids immediately following this exchange and a few other times during his testimony. He provided direct responses to the follow-up questions. For example, he was asked whether heever "injected [him]self with anything that Greg . . . gave [him]." He responded "I'm not that talented, no."

So how, exactly, was justice obstructed by his initial non-responsive answer? The prosecutors here should be ashamed of themselves for pursuing this case. Which is worse—taking PEDs so you can hit home runs, or using the power of the government to try to throw Barry Bonds in jail on the basis of that one evasive response to a prosecutor's question?!

And will all those who think this was a good use of the hundreds of thousands of dollars of YOUR TAXPAYER DOLLARS please raise your hands … I didn't think so. Was there really nothing more valuable to society they could have been doing than prosecuting Bonds here, on these facts?

And it's actually worse than that. Here's the relevant portion of the federal obstruction of justice statute (18 U.S.C. § 1503(a)):

"Whoever . . . corruptly or by threats or force, or by any threatening letter or communication, influences, obstructs, or impedes, or endeavors to influence, obstruct, or impede, the due administration of justice, shall be punished as provided in subsection (b)." (emphasis added)

Clearly, only acting "corruptly," or with "threats of force" or "threatening letters" can a conviction for obstruction of justice lie under this statute. But it turns out that the 9th Circuit has held that a defendant "corruptly" obstructs justice if he acts "with the purpose of obstructing justice." United States v. Rasheed, 663 F.2d 843, 852 (9th Cir. 1981).

It's a nice littlecircular bit of statutory interpretation; as long as you endeavor to impede the administration of justice with the purpose of doing so—i.e.. intentionally, as opposed to negligently or accidentally—you're violating the statute. (And, of course, there's the presumption that people intend to produce the results that are the foreseeable consequences of their actions). What happened to the requirement that you act "corruptly"—a higher standard than mere intentionality? Vanished into thin air. Nice for the prosecutors, not so nice for the rest of us.