At his jury trial last week, Barry Bonds was not found guilty of perjury for lying to the grand jury about whether he usedo; not found guilty of perjury for lying to the grand jury about whether he used human growth hormone; and not found guilty of perjury for lying to the grand jury about whether persons other than his doctor injected him. How, then, do you explain his obstruction of justice conviction?

A mistrial was reached as to each and every one of the perjury charges as the jury was unable to reach an anonymous verdict on those counts. But if the jury couldn’t reach an anonymous verdict that Mr. Bonds comitted perjury, what’s the basis for its obstruction of justice conviction?

Section 1503 of Title 18 of the U.S. Code defines the crime of obstruction of justice as – among other things – “whoever corruptly … endeavors to influence, intimidate, or impede any grand jury” or “corruptly … influences, obstructs, or impedes, or endeavors to influence, obstruct, or impede, the due administration of justice.”
Now, all of Barry Bonds’ criminal charges stem from his testimony to the grand jury in its investigation in 2003 into performance enhancing drugs. He was not accused of falsifying documents, destroying evidence, intimidating witnesses, or anything like that. Since the jury didn’t find Bonds guilty of perjury, it’s difficult for me to understand what the basis is for the conviction of obstruction of justice. The jury instructions given by Judge Illston instructed that to be guilty of this charge, Bonds could have “knowingly giv[en] material testimony that was intentionally evasive, false or misleading.” The jury didn’t find that Bonds gave testimony that was intentionally false or misleading, hence its failure to reach a verdict on perjury. Thus, the only possible basis for the conviction is that Barry Bonds’s testimony was intentionally “evasive.” Seriously? Is that a basis to find that a person obstructed justice?

For better or worse, witnesses and parties, often on their lawyers’ advice, are frequently evasive. For example, if asked whether something is true and part of it is true and part of it is false, the witness will reply false. (“Isn’t it true that you showed up at the birthday party drunk and with a black eye?” “No” [b/c it was an anniversary party]. Witnesses are under no obligation to help the examiner out by volunteering information or clearing up areas of testimony that might heretofore have been unclear. Here, when Bonds was asked “Did Greg ever give you anything that required a syringe to inject yourself with?”, and gave a meandering response, that was totally off point, i.e. “That’s what keeps our friendship. You know, I am sorry, but that – you know, that – I was a celebrity child, not just in baseball by my own instincts. I became a celebrity child with a famous father….”, the examiner should have told Mr. Bonds to answer the question actually put to him. To not do so and then accuse Mr. Bonds of obstruction of justice seems craven. The fact is that witnesses attempt to avoid uncomfortable subjects. It’s the lawyer’s job to demand that a witness stop dancing around the subject and answer the question.