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April 7, 2011

Is Barry Bonds going to have to worry soon about federal sentencing realities?

As detailed in this New York Times report, after more than a week of testimony in Barry Bonds’s perjury trial, "the jury was on the cusp of being able to discuss its opinions about the case" because following "closing arguments Thursday morning, jurors will begin determining Bonds’s fate [and a] decision could come as early as Friday."  The NYT piece notes that the Bonds defense team called no witnesses in defense; the pundits on ESPN and elsewhere have suggested that this decision was designed to signal to the jury that the defense believes the government has not proven its case beyond a reasonable doubt.

I have not followed the Bonds trial closely, so I am not in a position to make predictions about the timing or likely results of jury deliberation.  But I can and will express my own parochial interests in the outcome: I am rooting for an acquittal on all but the least serious charge against Bonds so that the case become another very high-profile setting for the media to give attention to the operation of the federal sentencing guidelines and the ugly persistent reality of acquitted conduct sentencing enhancements. 

I also love the idea of how lawyers on both sides might argue over whether Bonds' "history and characteristics" (and particularly his record-setting on-field achievements) are an aggravating or a mitigating sentencing factor under 3553(a)'s mandates.  (Of course, I am biased in my parochial interests by the fact that, as detailed here, Bonds' possible sentencing fate got me mentioned a few years ago on ESPN's Mike & Mike in the Morning radio show right after Bonds was indicted.  I already have foolhardy dreams of becoming a regular guest on Mike & Mike if a Bonds' sentencing proceeding is forthcoming.)

April 7, 2011 at 08:54 AM | Permalink

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Comments

"...pundits on ESPN and elsewhere have suggested that this decision was designed to signal to the jury that the defense believes the government has not proven its case beyond a reasonable doubt."

Baloney. The defense had to keep him off the stand for exactly the same reason it should have kept him from testifying before the grand jury, to wit, that it takes about ten seconds after he opens his mouth to figure out he's a liar.

Posted by: Bill Otis | Apr 7, 2011 10:45:37 AM

lol never mind the fact that the constitution REQUIRES the state prove it's case...not that he be required to get up and prove his!

Posted by: rodsmith | Apr 7, 2011 11:29:57 AM

i am just glad that our prosecutors pursue real villians like bonds and clemens, keeping the world safe for those who lie to congress or prosecutors about minor matters like war and deaths and torture.

Posted by: anon | Apr 7, 2011 12:11:05 PM

rodsmith --

"...never mind the fact that the constitution REQUIRES the state prove it's case...not that he be required to get up and prove his!"

Of course he's not required to; no one disputes that. The question is why he elects the option of silence instead of the option of testifying. And the answer is that his lawyer knows jurors can spot liars, so the very last thing he wants to do is have Bonds himself hammer in the last nail.

Posted by: Bill Otis | Apr 7, 2011 2:22:38 PM

. . . and maybe, just maybe, those very same jurors can spot when the government has just not met its burden of proof!

Posted by: alan chaset | Apr 7, 2011 9:43:15 PM

alan --

The operative word in your sentence is "maybe." Since neither of us attended the trial, it's kinda hard to say from a distance. However, when I was an AUSA, virtually the only reason the defense kept the client off the stand is that it knew he could not withstand cross examination, and wanted to prevent him from sealing his own fate.

Posted by: Bill Otis | Apr 8, 2011 8:46:43 AM

who knows bill MAYBE he elected to use what you call the "option of silence" becasue it's his RIGHT TO REMAIN SILENT! go figure an american willing to stand up for his RIGHTS!

again you like most da's seem to miss the point. it's not HIS JOB to prove his innocent. LEAGALLY under our constution UNTIL YOU PROVE HE'S NOT ....legally he's INNOCENT!

think we need a few million more willing to do that!

Posted by: rodsmith | Apr 8, 2011 2:38:17 PM

No, Rod, it's you who are missing the point. Of course, we have the Fifth Amendment to prevent a defendant from being forced into incriminating himself in a court of law. What I think you're missing is that, in the court of public opinion, we're free to infer that a defendant who declines to testify in his own defense has committed the crime in question even if such an inference wouldn't be allowed in court.

Posted by: alpino | Apr 8, 2011 8:19:02 PM

true you under that same constitution have every right to THINK he's guilty....but once you move it from your brain to the public in any matter you have now infrigned on HIS right UNLESS there's been a GUILTY verdict from the court! Since UNTIL then legally he's INNOCENT!

as for this!

"we're free to infer that a defendant who declines to testify in his own defense has committed the crime in question even if such an inference wouldn't be allowed in court."

UNLESS your doing it AFTER the trial and not where any possible juror can see it you'd be ok if on shaky ground since it would basically directly contradict that very right NOT to testify!

if done in the present of anyone who MIGHT become a juror then you have comitted the felony of jury tampering! LOL

Posted by: rodsmith | Apr 9, 2011 7:08:58 PM

Wow, this is too cool. I am very like it, Thank you for sharing, let me so happy!

Posted by: Big pony | Apr 11, 2011 6:06:18 AM

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