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Indictment leads to new questions

Now what for Bonds? Perjury, obstruction explained

Posted: Thursday November 15, 2007 9:58PM; Updated: Friday November 16, 2007 10:12AM
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1. How serious are the charges against Bonds?

On Thursday, federal prosecutors charged Barry Bonds with four counts of perjury and one count of obstruction of justice.
On Thursday, federal prosecutors charged Barry Bonds with four counts of perjury and one count of obstruction of justice.
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They are very serious. A grand jury has identified probable cause -- meaning "more likely than not" -- that Barry Bonds committed perjury and obstruction of justice. If Bonds committed those crimes, he knowingly denigrated our system of justice and those who uphold it. At best, his conduct would be characterized as brazen disregard for legal rules; at worst, an untoward combination of arrogance, deception, and guile in a setting where we demand the very opposite. However a conviction would be described, Bonds would face up to 5 years in prison and a $250,000 fine for each of three perjury charges, and 10 years and a $250,000 fine for an obstruction of justice charge. He would be facing serious time.

2. So Bonds is in a lot of trouble?

Maybe, but maybe not. Keep in mind, a grand jury indictment is a long way from a criminal conviction, which requires the much higher burden of beyond a reasonable doubt. Some legal commentators have also criticized the grand jury process as overly-secretive and stacked too much in favor of the prosecution. The prosecutor, for instance, determines which witnesses appear before the grand jury, can offer immunity to those witnesses, and conducts the basic questioning of the proceeding, while a defendant may not even have his or her attorney present. These limitations to the grand jury hearing may give confidence to Bonds and his attorney, Mike Rains, as they prepare for a possible trial.

Also, even if convicted of the charges against him, it's unclear how long Bonds, a first-time offender of a criminal offense, would serve in prison. As discussed in relation to Michael Vick's guilty plea, first-time offenders tend to receive much lighter sentences than repeat offenders.

3. Will there be a trial?

Not necessarily. Bonds could reach a plea agreement with the prosecution. It could preclude a high-profile trial and possible conviction of all charges. In such an exchange, however, the prosecution would likely demand that Bonds admits to committing a crime, albeit a lesser offense than he has been charged. In that event, Major League Baseball could take disciplinary action against him and perhaps move to strike his home run record.

Bonds might also seek a trial because he enjoys the wealth to assemble a top legal team, which increases the probability that he could offer creative legal theories in his defense. Generally speaking, affluent defendants are less likely to be convicted than other defendants.

4. Assuming there is a trial, how would the perjury charge play out?

Perjury is to knowingly lie under oath and typically about a matter material to an investigation or case. To prove guilt, the prosecution must establish more than just Bonds lying under oath. It must show that he knowingly lied, meaning his lie must not have been a mistaken belief or a misunderstanding. For that reason, Bonds could argue that he misunderstood the question or the context in which it was asked, which led to an inadvertent lie. He could also argue that he understood the question, but genuinely thought he was telling the truth, such as stating that he believed he was taking a legal performance enhancer, but which in fact was flax seed oil or human growth hormone. All he would need to do is place reasonable doubt in the jury's mind.

The prosecution, however, would likely use the testimony of witnesses to establish that Bonds knowingly lied. For instance, Bond's ex-mistress, Kimberly Bell, told the grand jury that Bonds admitted to knowingly used steroids. But in his defense, Bonds could argue that, given his now difficult relationship with her, Bell cannot be trusted and that his admission to her has been exaggerated or mischaracterized, and thus better constitutes hearsay, a statement made outside of the courtroom that is usually deemed inadmissible because of its lack of reliability.

5. What about the obstruction of justice charge?

Obstruction of justice captures different types of misconduct during a legal proceeding. Basically, if a defendant knowingly tries to impair a proceeding in any material and unacceptable way, such as lying about a material matter under oath, the defendant can be found guilty of the charge. Bonds would likely offer similar defenses to those described above for perjury.