As you may know if you’ve read this, I practiced law for nearly 20 years before taking a break and becoming a baseball blogger. I’ve tweeted some about the Barry Bonds trial, but have intentionally avoided blogging about the Bonds trial because my focus now is baseball, not the law. I also know and worked with one of Bonds’ main lawyers–Cris Arguedas–who deserves her fantastic reputation and then some.
But when I read the “legal analysis” by ESPN’s Lester Munson on the jury’s resolution–or better yet, non-resolution–of the charges against Bonds, I had no choice but to pen a response. Munson’s so called “legal analysis” is so full of factual, legal and constitutional errors that it’s hard to believe any reputable news organization would publish it. Shame on ESPN for doing just that.
Munson’s first misstep:
The unanimous verdict that Bonds was guilty of obstruction of justice is a major triumph for federal agent Jeff Novitzky and prosecutors Jeff Nedrow and Matthew Parrella.
Really? A major triumph? Novitzky testified at the trial that he spent countless nights rummaging through BALCO’s garbage looking for evidence of steroids production, distribution and use. He also oversaw the raids on several drug labs which had performed the “anonymous” tests on all Major League Baseball players before steroids were banned by the league. Novitzky flexed his federal investigatory muscle so far and for so long just so the government could eventually prove that Bonds answered questions evasively? As Jayson Stark (also of ESPN) wrote after the verdict was read: “So let’s get this straight. The only thing we’ve learned about Barry Bonds is that he was evasive? The government could have assembled a panel of distinguished baseball writers to convict him on that charge like 15 years ago.” It’s not a major triumph for Novitzy and the prosecutors. It’s an embarrassment.
Munson then turns centuries of criminal law on its head:
The defense team was not victorious on even one of the four counts of the indictment. In a case that many observers expected Bonds to win, he and his lawyers went 0-for-4. There were jurors who wanted to convict Bonds on all four counts, but the jurors were unanimous only on the obstruction of justice count.
A bedrock principle of criminal law is that the prosecution bears the burden of proving beyond a reasonable doubt that the defendant committed the crime with which he was charged. And in federal court, the jury must unanimously agree that the defendant is guilty; if not, the government has not met its burden and the defendant cannot be convicted. The defendant has no obligation whatsoever to prove anything. All the defense has to do is persuade just one juror that the defendant did not commit the crime. On three of the four counts, the defense did just that. By my count, the defense went 3-for-4, a much better day than the government had. They only went 1-for-4.
Munson also attacks the defense team for doing their job and doing it well:
A close look at the history of the Bonds prosecution shows that the enormous efforts by the Bonds legal team added years to the process. The lawyers filed hundreds of pages of papers known as “motions in limine.” These motions demanded that Judge Illston issue her rulings on trial evidence in advance of the trial. The Bonds lawyers wanted evidence suppressed even before it was presented.
In an ordinary case, there may be one or two motions in limine. The Bonds lawyers filed at least 12, each of them meticulously briefed and argued, and each of them causing trial delays.
As Munson well knows–but failed to tell you–is that courts have strict rules about what kinds of information and documents can be admitted into evidence and seen, read or heard by the jury. These rules have been in effect for decades and are used in every state and federal trial in the country. The purpose of these rules is to ensure that the information and documents seen, read or heard by the jury are reliable–meaning that there is a factual basis for the evidence and that the evidence is truthful and credible. The Bonds defense team did not seek to “suppress” evidence. They simply asked Judge Illston to decide before the trial started that certain information, documents and testimony were not reliable, and should therefore be excluded from the trial. On many of these defense requests, Judge Illston–following these basic and long-standing rules–agreed and excluded several pieces of unreliable evidence.
Further, the fact that the defense filed twelve of these motions in limine was entirely within the norm for a federal criminal case. Indeed, as Munson suggests, in an ordinary case, the defense may only file one or two such motions. But federal criminal cases are not ordinary cases and this one certainly was not.
Finally, in his closing, Munson eviscerates the Fifth Amendment to the United States Constitution:
Any citizen who is caught up in a federal investigation is obligated to tell the truth when federal agents show up to ask questions. It is a fundamental duty of citizenship, and it is the foundation of any federal investigation.
Wrong. When federal agents “show up” to ask questions of citizens about a federal investigation, the agents have a constitutional duty to tell these citizens if they are suspected of committing a crime, and if so, to tell these citizens that they have the right to remain silent and to be advised by a lawyer. It’s called the Fifth Amendment right against self-incrimination. Granted, by the time Bonds testified to the grand jury, the government had given Bonds immunity, meaning that he would not be prosecuted for buying or using steroids if he testified truthfully to the grand jury. The government did not prove that Bonds testified untruthfully to the grand jury. The jurors found only that Bonds’ response to one question was evasive–not that it was false or untrue. And hard questions remain for Judge Illston and the Court of Appeals as to whether that Bonds’ “evasive” response was sufficient for a conviction for obstruction of justice.
I don’t know Munson nor do I know anything about his law practice. But I suggest that if you are suspected of committing a crime, you should hire an attorney who understands criminal, evidentiary and constitutional law better than Lester Munson apparently does.