Barry Bonds' team of lawyers today filed their motion to overturn the jury's conviction on the single count of obstruction of justice. Whatever you might think about the core perjury charges on which the jury deadlocked, particularly the "nobody stuck me with a needle other than a doctor" charge--and put me in the category of people who thought he should have been convicted of this charge--that the afterthought "obstruction" charge will not stand.
Technically speaking, the motion argues for entry of a judgmen of acquittal on the count because the jury could not, as a matter of law, convict someone of obstruction based on what was charged and what Bonds said. The motion asks alternatively for a new trial.
The motion itself provides an excellent summary of the argument. Why paraphrase? Here are the two key paragraphs of the introduction:
Unable to prove Mr. Bonds guilty of lying under oath to the grand jury, the government has convicted him of felony prolixity. The government concedes that "Statement C," the "celebrity child" comment which resulted in the Count Five conviction, was not false. Rather, the government contends Statement C was unresponsive, and thus was evasive and illegal. But unauthorized rambling is not a federal crime. There is no legal authority for the proposition that truthful but "evasive" statements, much less a single statement, can constitute obstruction of justice. In the history of § 1503 prosecutions, no one has been convicted based on facts remotely resembling those upon which the obstruction verdict rests. To allow Mr. Bonds’s conviction to stand would impermissibly expand § 1503, and also violate the terms of his immunity agreement.
Moreover, even if some "truthful but evasive" statements could constitute obstruction, Mr. Bonds’s "celebrity child" statement was not evasive. The "celebrity child" statement was, at worst, a digression — a bit of meandering from the question that was explicitly encouraged by the questioner. Elsewhere in his testimony, Mr. Bonds directly answered the same question repeatedly. A grand jury witness cannot be convicted of obstruction based on his alleged evasion of a prosecutorial inquiry when, during the course of his testimony, that witness answered, to the government’s expressed satisfaction, the questions put to him on the very subject of that inquiry. The claim that a witness commits a federal crime when he temporarily gives a truthful but unresponsive answer, before directly and fully answering the same question moments later, is utterly without support in the case law. Were that position correct, virtually any witness in a federal trial, including the government’s key witnesses in this case, could be branded a felon. Furthermore, because the obstruction offense here specifically charged Mr. Bonds with being evasive in the "totality" of his grand jury testimony, he cannot be convicted of evading a question which the totality of that testimony establishes he answered multiple times.
"Felony prolixity." Wow, I wish I had written that line. The italics are not mine; they are in the original brief
I'm no expert in this area of law. But I think any judge is going to be very deeply concerned about the fundamental thrust of the argument--that if a jury is allowed to issue a felony conviction on this particular count, that a jury would have the discretion to convict very many witness of obstruction. This is a very serious motion.
There is a trial-setting conference (basically a status meeting of the lawyers and judge) that had been rescheduled from last month to this Friday. That was continued by the Court to Friday the 24th. And this motion is (nominally) set for hearing on Friday, July 1. My guess is that the U.S. Attorney's Office is going to want more time to brief its opposition, and that both the conference and the hearing will be consolidated for some date further out than July 1.