Thursday, September 1, 2011

Bonds’ Obstruction Conviction Expands Prosecutorial Power

Judge Susan Illston, the presiding judge in the Barry Bonds case (United States v. Bonds, (N.D. Cal., CR 07-00732), last week upheld the single conviction in the case, for obstruction of justice before the grand jury. The jury was hung in Bonds’ favor on the other three counts accusing Bonds of perjury.

Bonds gave a long, rambling answer to a prosecutor’s question whether his trainer Greg Anderson had ever given him anything requiring a syringe to inject himself with. His answer included a seemingly irrelevant and arguably evasive discussion of his being a "celebrity child with a famous father." That response provided the basis for the obstruction charge.

Bonds’ attorneys contended in a post-trial motion, among other things, that later in the same grand jury session Bonds directly answered a question that was essentially the same, and thus his arguably evasive earlier response was not ultimately material. The judge disagreed, finding that, viewing the evidence in the light most favorable to the government, "defendant endeavored to obstruct the grand jury by not answering it when it was first asked." 

[D]efendant repeatedly provided nonresponsive answers to questions about whether Anderson had ever provided him with injectables, resulting in the prosecuting attorneys asking clarifying question after clarifying question, and even once resulting in one prosecutor interrupting another who was about to move on to a new topic in order to clarify defendant’s mixed responses. An evasive answer about an issue material to the grand jury is not necessarily rendered immaterial by the later provision of a direct answer, even if that direct answer is true.

 Prosecutors already have the power to seek indictment of those grand jury witnesses who they believe are "obstructing" by giving evasive, nonresponsive answers. The opinion enhances that already virtually boundless but rarely used power. By allowing an indictment of a witness who later gives a direct and true answer (although the court here did not concede that the answer was true), the court essentially broadened "obstruction" to include dilatory responses.

Witnesses before the grand jury, and at trials, hearings and depositions – whether ordinary citizens, arguably culpable celebrities, or federal agents – often hem and haw at first when asked difficult questions (even when they, unlike grand jury witnesses, have counsel present). Often these initial responses require "clarifying question after clarifying question." That’s called cross-examination. To determine whether a witness committed obstruction of justice in the grand jury by the amount of questioning by the prosecutor makes the crime dependent on the skill of the examiner. The less skilled the examiner, the more likely he or she will need to ask many "clarifying" questions, and thus the more likely the responses will be deemed criminal.

If this conviction is upheld, prosecutors (especially those frustrated by their inability to prove the suspected substantive crimes) might be emboldened to seek more indictments for obstruction of justice against uncooperative witnesses who do not initially give direct, responsive answers, even if upon further examination in the grand jury session they eventually do. That is a troubling possibility. 


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