The Barry Bonds Prosecution: Keep Your Mouth Shut, Because You’re Not Going to Talk Your Way Out of It

For those still on the fence about Barry Bonds and Roger Clemens, I should lay my cards on the table now, and say that I’d vote them both into the Hall of Fame without a moment’s hesitation. If you play or love the game, and they’re not on your all-time top ten list for hitters and pitchers respectively, then you’re an idiot. I also think that the evidence is pretty strong that both of them used steroids in the later years of their careers.

For criminal lawyers, they’re also both object lessons in how people–especially powerful, dominant mess-with-me-and-I’ll-throw-a-broken-bat-at-you alpha males–can buy themselves a heap of trouble by trying to talk their way out of it. Both have now gotten out of that trouble, but only after years of headaches and legal proceedings, and presumably sizeable legal fees.

Bonds was in the news most recently last month when the Justice Department announced that it would seek Supreme Court review of the Ninth Circuit’s en banc decision overturning Bonds’ obstruction of justice conviction.

If you recall, Bonds was convicted on a single count of obstruction of justice based on the following answer he gave in grand jury testimony:

Q: Did Greg[, your trainer,] ever give you anything that
required a syringe to inject yourself with?

A: I’ve only had one doctor touch me. And that’s my only
personal doctor. Greg, like I said, we don’t get into each
others’ personal lives. We’re friends, but I don’t—we don’t
sit around and talk baseball, because he knows I don’t want—
don’t come to my house talking baseball. If you want to come
to my house and talk about fishing, some other stuff, we’ll be
good friends. You come around talking about baseball, you go
on. I don’t talk about his business. You know what I mean?

Q: Right.

A: 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. I just don’t get into other people’s business
because of my father’s situation, you see. 

That’s a classic case of what lawyers call a “non-responsive” answer. Powerful people like giving non-responsive answers when they don’t want to answer a question. My favorite recent example is Scott Walker’s answer to the question whether he would attend a gay wedding if invited. In most contexts, when you give a non-responsive answer, the questioner either asks the question again, or forgets about it. In fact (give it a try) sometimes if your answer is rambling enough, you can fool the questioner into imagining that you answered the question.

When you’re talking to law enforcement, however, there’s a third option: charge you with obstruction of justice. The “Q” in the above transcript is a federal prosecutor. His job is to get answers, mostly answers that people don’t want to provide. Yet he didn’t follow up on Bonds’ answer to pin him down. Instead, he finished the questioning, let Bonds go home, then charged him with a felony, obstruction of justice, for giving that non-responsive answer.

The charge was pretty unremarkable at the time. As my colleagues and I will discuss in future posts, the federal criminal statutes covering statements to law enforcement are incredibly broad. But the Ninth Circuit, in its decision reversing Bonds’ conviction, has not said “enough.” The decision, available here, is a fantastic and accessible read. It holds that charging Bonds with obstruction for non-responsive testimony was unconstitutional, because the statute would be vague and overbroad if applied to that testimony.

And the decision’s reasoning hints at much wider applications in the future. The court holds that obstruction must have a “materiality” component, meaning that the statement or action charged must be “capable of influencing the decision of the decision-making body.” And it sends a very strong signal that it is highly dubious of attempts to apply the concept of obstruction to litigation conduct.

So clients in the western states can breathe a little easier about being evasive when talking to the feds. But not too much easier: you can still be charged if your blather was material- that is, reasonably likely to influence the investigation. That’s why the right answer is always the one that you masters of the universe know but can’t quite bring yourselves to follow: just zip it. If you are in a position in which federal agents are asking you uncomfortable question that you’d like to evade, then you need a lawyer.

In future posts, my colleagues and I will discuss other examples, including Dennis Hastert and Roger Clemens, and we’ll discuss the implications of the Bonds case for the unfortunately common law enforcement tactic of “fishing for false statements.”

Caleb Mason

Caleb Mason is a partner with Brown White & Osborn LLP. He is a former federal prosecutor, and handles a wide variety of civil and criminal litigation. He has authored numerous scholarly publications on criminal and constitutional law, and is a frequent media commentator on criminal-justice issues. He was recently appointed to the Police Commission for the city of Claremont, California.
Caleb Mason