The Weekend In Phony Prosecutions -- Part II

This one isn't actually that new, but just came to my attention this weekend due to an article in the New York Law Journal that appeared on August 4.  The precipitating event:  the conviction of baseball player Barry Bonds was reversed by the Ninth Circuit Court of Appeals, en banc.  The per curiam opinion of the full court actually came down in April.

You undoubtedly know who Barry Bonds is -- a famous baseball player, holder of the Major League record for most career home runs -- and you probably have the impression that he was convicted for illegal drug use.  But that would be wrong.  Actually, he was convicted for "obstruction of justice."  Whatever you may think about whether Bonds used drugs and whether or not that was OK, the circumstances of this conviction are rather outrageous.  The reversal came some twelve years  after Bonds first got caught up in the maw of the criminal justice system.

First, a little background.   Prosecutors in the Northern District of California began investigating allegedly illegal drug use in Major League Baseball as long ago as 2003, focusing on certain players whose records seemed too good to be true.  In 2003 they sought Bonds' testimony before a grand jury, and to secure it, they granted him immunity.  So from the get-go there was not going to be a prosecution of Bonds for the underlying wrong, if indeed it was a wrong.  They gave up on that in order to chase the alleged purveyors of the drugs.

But Bonds thought he could trust the prosecutors who had granted him immunity.  Big mistake!  Multiple years after Bonds' grand jury testimony, in late 2007, he was indicted for a collection of charges (with four thousand federal crimes to choose from, they never indict on just one charge), all of which arose out of his grand jury testimony and not out of alleged illegal drug use.  There were four charges of perjury for allegedly false statements to the grand jury, and one charge of obstruction of justice, supposedly based on some seven answers given by Bonds in his grand jury testimony.  Then the case didn't go to trial for over three years, due to pre-trial skirmishing that included an appeal by the prosecutors.  At trial in 2011, the jury hung on all the perjury charges, and convicted on the one obstruction charge, although finding only one of the seven challenged answers to be "obstructive."  The trial judge denied post-trial motions, and a panel of the Ninth Circuit affirmed the conviction.  And then finally we come to the en banc reversal in 2015. 

So what was Bonds convicted of?  Here is the statute, 15 U.S.C. Section 1503:

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).

And here is the one question and answer given by Bonds before the grand jury that the trial jury found to be "obstructive."  The bold portion is what was alleged to constitute the "obstruction":

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

A: 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.

 A: 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.

And that, my friends, is what constitutes a federal crime, at least in the eyes of these prosecutors -- not to mention the trial judge and the initial panel of the Ninth Circuit.  Could it be that maybe Bonds didn't quite hear the question clearly?  Personally, I read that and the only conclusion I can come to is that the prosecutors intended all along to charge Bonds with something -- anything -- and their grant of "immunity" was a scam from the outset and wasn't worth the paper it was printed on.  (The court's opinion doesn't reveal what the other six allegedly obstructive answers were, but given that the jury exonerated Bonds on all of them, one would have to conclude that they were even flimsier as a basis for a charge than the one that led to the conviction.)

The court's decision is a very brief per curiam statement, followed by multiple concurring opinions by several judges setting forth somewhat different bases for the ruling.  From the concurring opinion of Judge Kozinski:

Stretched to its limits, section 1503 poses a significant hazard for everyone involved in our system of justice, because so much of what the adversary process calls for could be construed as obstruction. Did a tort plaintiff file a complaint seeking damages far in excess of what the jury ultimately awards? That could be viewed as corruptly endeavoring to “influence . . . the due administration of justice” by seeking to recover more than the claim deserves.  So could any of the following behaviors that make up the bread and butter of litigation: filing an answer that denies liability for conduct that is ultimately adjudged wrongful or malicious; unsuccessfully filing (or opposing) a motion to dismiss or for summary judgment; seeking a continuance in order to inflict delay on the opposing party; frivolously taking an appeal or petitioning for certiorari—the list is endless.

And he goes on for quite a while from there.  To put it another way, if the prosecutors are going to be using the "obstruction" statute the way they used it here, you can't ever say anything safely to a prosecutor.  Grant of immunity?  Worthless.   One arguably non-responsive answer and we will tie up your life in the criminal justice system for the next twelve years.

Grants of immunity are typically used by prosecutors to overcome a witness's assertions of Fifth Amendment rights and compel testimony.  The theory is that with a grant of immunity you no longer have a legitimate fear of prosecution and can be forced to testify.  But with cases like this out there, is that theory really valid any more?