In the coming months, Barry Bonds’ defense team will be pursuing a legal attack on his obstruction of justice conviction that many legal experts say raises credible questions about the validity of this week’s jury verdict.
At the same time, prosecutors will be behind closed doors, seriously weighing whether to keep the heat on the home run king by retrying him on three perjury charges left on the table undecided by the jury.
The perjury case against Bonds is clearly headed for extra innings.
With the ink still drying on the jury’s Wednesday verdict, legal experts say Bonds’ lawyers have fodder to attack his conviction for obstructing justice in his December 2003 testimony before a federal grand jury because of questions about the jury instruction.
But experts also say federal prosecutors may put Bonds on trial again on the deadlocked counts, particularly on one charge in which the vote was 11-1 in favor of convicting the slugger for lying to the grand jury about being injected by anyone other than a doctor.
Regardless of any fatigue over the eight-year legal odyssey, current and former prosecutors say the government may want to preserve that hammer as long as the obstruction conviction remains up in the air. And one lawyer knowledgeable about the prosecution’s current reasoning said flatly of the 11-1 jury vote on the one perjury count, “Typically, that gets retried.” Former San Francisco U.S. Attorney Joseph Russoniello, who left office last year, said he would retry all three counts.
“If it were up to me, given that one of the counts was 11-1 for conviction, I’d try them all again,” Russoniello said. “I wouldn’t want to put all my eggs in one basket with the obstruction charge.”
U.S. Attorney Melinda Haag issued a statement saying her office will review the verdict and make a decision soon. U.S. District Judge Susan Illston has scheduled a May 20 hearing, when she may decide the defense’s bid to set aside the obstruction conviction.
There are experts who say prosecutors should take the conviction and “Guilty” headlines and consider the case a win.
“If I’m U.S. Attorney today, do I feel good about this verdict? Heck, yeah,” said McGregor Scott, Sacramento’s U.S. attorney from 2003 to 2009. “In the absence of some compelling shift in evidence, it’s very difficult for me to envision the U.S. attorney retrying this case on the remaining three counts. The U.S. attorney can today say, ‘We won.’ ”
After more than three days of deliberations, the jury also deadlocked on two perjury counts related to Bonds’ allegedly lying to the grand jury about using steroids or human growth hormone, leaning in favor of acquittal on those charges.
But the jury convicted Bonds of obstructing justice because of evasive, rambling answers to a direct question about whether former personal trainer Greg Anderson gave him “anything that required a syringe to inject yourself with?” In the specific statement outlined in the jury instruction, Bonds did not answer the question, instead veering off into a speech about being “a celebrity child.” In interviews after the verdict, jurors said they convicted Bonds of obstruction because he repeatedly failed to answer the question. “That particular statement was overly evasive,” Nyiesha, one of the jurors, said outside court.
But defense lawyers insist the jury instruction improperly carved out an exchange between Bonds and prosecutor Jeff Nedrow that resulted in Bonds being convicted for one vague answer, and not for anything related to steroids, injections or performance enhancing drugs. Dennis Riordan, one of Bonds’ lawyers, called such a conviction a “farce.” Among other things, defense lawyers point to the fact that Bonds was asked the same question later in his grand jury testimony and indeed answered the question about whether he injected himself, replying at one point, “I’m not that talented, no.” Prosecutors are expected to argue that the jury had the entire transcript to consider as evidence, but nevertheless concluded Bonds obstructed justice. But legal experts say the jury instruction was so specific that it may have been flawed.
“There’s a lot of hay to be made in those jury instructions,” said Rory Little, a Hastings College of the Law professor.