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April 13, 2011

Barry Bonds convicted of obstruction, jury deadlocked on perjury counts

Looks like Barry Bonds now does need to start worrying about federal sentencing realities, as the early report from the courtroom indicates a split verdict including a conviction on obstruction of justice. Let the 3553(a) analysis for defendant Bonds begin!

UPDATE This SI.com column by Mike McCann has this to say about Bonds' sentencing situation:

Bonds will likely be sentenced in four to six months. In the months leading up to the sentencing hearing, the U.S. Probation Office will author a "Presentence Investigation Report" which will recommend a sentence.  Bonds' lack of criminal record will work in his favor. His refusal to plead guilty, however, will count against him. Sentencing guidelines suggest that he could receive a sentence of 18 to 30 months, though those guidelines are permissive and Judge Illston will reserve the right to impose a sentence outside that range.

During the sentencing hearing, Bonds will have an opportunity to speak and offer an apology -- or to insist on his innocence. Friends and family of Bonds may also speak on his behalf at the sentencing hearing, or they can provide letters asking for leniency.

Bonds may be fortunate that Judge Illston is sentencing him. Judge Illston presided over two other BALCO-related perjury trials in which the defendants -- track coach Trevor Graham and cyclist Tammy Thomas -- were convicted, with Graham convicted on perjury and Thomas convicted on both perjury and obstruction of justice. Illston sentenced each to home confinement (Graham for one-year; Thomas for six months). While Illston could distinguish Bonds as more culpable than Graham and Thomas and more deserving of time in prison, Bonds should take some comfort in knowing Illston's sentencing in the Graham and Thomas cases.

Even if "only sentenced" to home confinement, Bonds would still experience substantial restrictions on his freedom. He would likely have to wear an electronic monitor at all times and could only leave his home with approval by his supervising officer. Home confinement, however, sure beats prison.

If Illston sentences Bonds to prison, she could opt for a sentence similar to that received by track star Marion Jones, who, pursuant to a guilty plea, was sentenced to six months in prison, two years of probation and community service.

Recent related Bonds posts:

April 13, 2011 at 05:56 PM | Permalink


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If he didn't lie how can he obstruct justice?

And like Sen. Jon Kyl's lie, why couldn't Bonds just say he didn't intend any factual statements?


Posted by: George | Apr 13, 2011 8:45:41 PM

George --

Bonds had the right to say anything he wanted, but declined to take the stand.

Posted by: Bill Otis | Apr 13, 2011 9:08:21 PM

Mr. Bill, the point is that Sen. Jon Kyl, a lawmaker, lied on the floor of congress in his official capacity and yet lawmakers made a law making it very illegal to lie to law enforcement. There is something pretzelated about that. One is free speech and the other is a crime.

Posted by: George | Apr 13, 2011 11:07:01 PM


For what it is worth, any law that purported to make lies by members of Congress while on the floor a crime would be extremely suspect, even setting the first amendment aside. Even normal torts like slander and defamation can't lie in that situation due to the speech and debate clause.

Now, I don't think the clause stretches as far as some would, such as to protecting congressional offices but I would think anything that actually happens on the chamber floor is pretty clearly covered by that provision.

Posted by: Soronel Haetir | Apr 14, 2011 2:13:54 AM

Because the lawyer profession is a criminal cult enterprise, history's most powerful criminal syndicate, because its rules have no validation or worse, involve supernatural church based doctrines, because crime should involve a harm to others (what is the harm to others in this case?), this proceeding is the real crime. Because the lawyer profession is in out of control insurrection against the constitution, because the police is an agency of the lawyer profession, there is no obligation to be truthful. There may be a duty to mislead, to stymie, to frustrate these internal enemies of our besieged nation. The Supreme Court has upheld misrepresentation by the police resulting in induced criminality by lawyer victims. It is fair even though illegal to lie to the police.

Because the jury proceeding is a ridiculous, anti-scientific, Medieval garbage procedure, the verdict has no validity.

This is a vile feminist witch hunt of the productive male by a cult criminal trying to get a name in the paper. It is reminiscent of the Martha Stewart case, where the lawyer gotcha on lying to the FBI was the only remaining matter to pursue.

As a taxpayer, I want the prosecutor fired, and the judge removed. These self-serving incompetents and lazy government workers likely spent $millions on this case. Meanwhile illegal alien gangbangers are beheading people that offended them.

As to repetitiveness. It is the lawyer that repeatedly engages in these wasteful shenanigans.

Posted by: Supremacy Claus | Apr 14, 2011 8:22:39 AM

soronel sorry but that's bull hockey! if what they are saying is a lie and fraud outside that chamber...guess what IT'S THE SAME INSIDE IT.

this criminal stupidity that these ordinary citizens somehow become gods who can say and do what they want once they take office is idiotic and stupidity.


They work for US


after all i ask all you lawyers just HOW can i as an employeer give an EMPLOYEE the right to do something I CAN'T LEGALLY DO!

sorry it's a non-starter.

Posted by: rodsmith | Apr 14, 2011 11:14:04 AM

Actually, it is, literally, a "starter" because it like it or not, the speech and debate clause has been in the constitution from the beginning of the country... like judicial immunity it is probably structurally necessary even if it leads to occasional problematic outcomes at the margins.

Hey, Mike McCann, how dare you say that Bond's "refusal to plead guilty . . . will count against him." That would be unconstitutional! It's just that, by his decision to go to trial, he foregoes a sentencing break that is given to virtually all people who don't exercise that right. That's completely different. Pay no attention to the man behind the curtain!

Posted by: Anon | Apr 14, 2011 12:26:57 PM

Soronel, of course free speech is paramount on the Senate floor, but it appears to be a distinction without a difference or without that much difference. As usual, TalkLeft has helpful details.

It would appear to me that Sen. Kyl's lie was potentially far more harmful to far more people than Bonds' ramblings that were not lies.

Posted by: George | Apr 14, 2011 3:49:12 PM


Reading that link:

Given the instruction I can certainly understand why the jury was able to convict on that statement. By not answering the question asked I would definitely say that qualifies as either impeding or attempting to impede by means of evasion. Now they just had to determine that his reason for doing so was to obstruct justice (and not for instance because he misunderstood the question).

Over all I would say that looks pretty solid.

And again, congressional freedom from liability for things said on the chamber floor predates the 1st amendment. If it were bad enough the chamber could use its power of expulsion but we both know that's not going to happen.

Posted by: Soronel Haetir | Apr 14, 2011 4:27:43 PM

Soronel and Anon are correct about the Speech and Debate Clause.

Sen. Kyl has absolutely nothing to do with the Bonds prosecution. For those who think otherwise, the place to register complaints is Eric Holder's in-box.

Posted by: Bill Otis | Apr 14, 2011 5:36:28 PM

Mr. Bill: "Sen. Kyl has absolutely nothing to do with the Bonds prosecution."

Right. I should have blamed Obama to make you happy and I'm obviously registering my complaint here.

Soronel, you beg the question and argue he was convicted because the law says he could be convicted. Yeah, that was my point. Then I suggest a rambling revolution as a form of civil disobedience. If lawmakers can lie and it is free speech then we can ramble.

Mr. Bill has a head start on us.

Posted by: George | Apr 14, 2011 6:36:02 PM

George --

"I should have blamed Obama to make you happy and I'm obviously registering my complaint here."

Actually, I have supported Obama -- and you have opposed him -- when he said that the death penalty is warranted in some cases. Whether he actually believes this I don't know, but that's what he said.

You can register complaints anywhere you choose, but this site has no prosecution authority and Eric Holder does.

Posted by: Bill Otis | Apr 14, 2011 7:38:22 PM


This is not an issue of free speech. You keep trying to say that it is an issue of lawmakers having free speech when we do not. The first amendment is separate and distinct from the speech and debate clause. If you don't like the clause, start contacting people to try to amend the constitution. Until then, realize that legislators do in fact have privileges that the rest of us do not.

I disagree strongly with nearly every policy that Sen. Kyl advocates. Except AEDPA and the death penalty, I can't think of one controversial area of policy where we agree. However, as long as he makes his statements on the floor of the Senate, he is protected by the constitution. And we are not granted that same privilege unless you are an anonymous federal legislator.

Posted by: dda2b | Apr 14, 2011 8:02:46 PM

If giving evasive, non-responsive answers to questions to mislead a jury is obstruction of justice, then nearly every law enforcement officer who's been cross-examined in a jury trial could be indicted.

Posted by: C.E. | Apr 14, 2011 9:14:02 PM

Thank you, C.E., for succinctly making the point. The point is common sense in terms of hypocrisy, not the free speech constitutional question, although there could be an equal protection issue brewing out of this. Why shouldn't a citizen be able to lie like a congress critter (or be non-responsive like law enforcement) without fear of arrest?

Indeed, if the government did not object to Bonds' non-responsiveness, wasn't that waived? It would be if the defendant failed to object.

Posted by: George | Apr 14, 2011 10:22:03 PM

It would need to be a different statute if it were a petite jury as the one Bonds was convicted under appears to only cover conduct before a grand jury. (And there is, of course, no cross examination in front of a grand jury)

Posted by: Soronel Haetir | Apr 14, 2011 11:05:54 PM


Also,I may be wrong on this, but my understanding is that grand jury proceedings don't have a judge present, so there wouldn't even have been anyone for them to make an instant objection to or have it ruled on.

Certainly with a judge present a witness can be ordered to answer the question that was asked. (The witness may be free to refuse, depending on circumstances).

Posted by: Soronel Haetir | Apr 14, 2011 11:09:52 PM

George --

"Why shouldn't a citizen be able to lie like a congress critter (or be non-responsive like law enforcement) without fear of arrest?"

Because the criminal justice system, and grand jury investigations in particular, depend on being able to demand, and get, the truth. Would you prefer indictments based on something OTHER than truth?

Posted by: Bill Otis | Apr 14, 2011 11:32:17 PM


"Actually, it is, literally, a "starter" because it like it or not, the speech and debate clause has been in the constitution from the beginning of the country... like judicial immunity it is probably structurally necessary even if it leads to occasional problematic outcomes at the margins"

You seem to be missing the point.

There is nothing in that statement of mine that says you cant' have all the speech and debate you want!

where the devil is ..is in the details

you can get up and debate to your hearts content! JUST don't lie!

you can give up and offer testimony on whatever sparks your fancy....JUST DONT' LIE!

You can be a senator or congresman all you want and can get up and pander to the cspan cameras 24/7 JUST DON'T LIE!

sorry once you do that those "speech and debate" protections are GONE you have comitted a felony!

i'm pretty damn sure if you could ask the ORIGINAL people who wrote that rule they would be amazed to think anyone would be dumb enough to think it covered LIES and FRAUD!

Posted by: rodsmith | Apr 15, 2011 1:10:50 AM

i repeat!

"sorry once you do that those "speech and debate" protections are GONE you have comitted a felony!"

AFTERALL isn't that what they are trying to hammer bonds for!

again my EMPLOYEES can't do something i can't!

Posted by: rodsmith | Apr 15, 2011 1:12:43 AM

Soronel, you keep letting the government off on a technicality. The bottom line is do you agree with me and Mr. Bill that prosecution witnesses should be charged when they are evasive or non-responsive because they are obstructing justice by avoiding the truth?

In other words, do you think the government should have to live up to its own standards?

Posted by: George | Apr 15, 2011 1:33:12 AM


Not only do I think government witnesses should be prosecuted for perjury, even the edge cases, I think they should be executed upon conviction.

And Rod, given the language used in the eh speech and debate clause "... and for any Speech or Debate in either House,
they shall not be questioned in any other Place." I would say that is exactly the outcome the framers envisioned. Members of the legislature are answerable to their chamber for any breech on the chamber floor and to no other body. Remember, that particular provision came about against a backdrop that was even less speech friendly than the modern UK. Criminal and civil libel and sedition laws abounded. Yet even at that time members of parliament had a nearly identical privilege. Which is why you would (and may still, I am not sure) see challenges to an MP to repeat their words outside (where they could then face normal legal process).

Posted by: Soronel Haetir | Apr 15, 2011 2:03:24 AM

that may be true soronel but once those congress critters started demanding individual testify under oath and face criminal punishment for what they say in those chambers...

sorry they fall under the same rules....in that SAME CHAMBER.....they changed the rules they n eed to obey them!

Posted by: rodsmith | Apr 15, 2011 1:54:03 PM

I beleive that Bonds ahould get a minimun of 10 years prison time. This would send out a positive message to our youths. Don't use drugs and don't lie. House confinment is a joke

Posted by: andy | Jul 25, 2011 11:08:13 AM

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