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Posted: Friday December 5, 2008 11:51AM; Updated: Friday December 5, 2008 2:16PM
Michael McCann Michael McCann >

More charges dropped for Bonds

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Judge Susan Illston ordered Barry Bonds' indictment be reworked again

The latest indictment is comprised of 11 counts, down from the original 15

From the government's perspective, the changes have very little effect

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Barry Bonds
If Barry Bonds can plant reasonable doubt in the jury's mind that he was confused, the slugger may escape conviction.

For the second time since Barry Bonds was charged with five counts of perjury and obstruction of justice on Nov. 15, 2007, prosecutors have reworded their indictment against him in order to remedy errors identified by U.S. District Court Judge Susan Illston.

In March, Judge Illston ordered the original indictment re-written because she deemed it to be duplicitous, meaning that it unlawfully charged Bonds with two or more distinct offenses in a single count. A duplicitous indictment threatened Bonds' Sixth Amendment right to know the charges against him and his guarantee of jury unanimity, since separate offenses located in a single count could lead a jury to unanimously find Bonds guilty on the count without having reached a unanimous verdict on any particular offense contained in the count. In response, prosecutors sought and obtained a new, more specified indictment of 15 counts.

In late November, Judge Illston found three of the 15 counts against Bonds to be premised on overly vague questions that were asked of Bonds by prosecutors. For instance, she deemed that questions posed to Bonds concerning whether he used steroids "or anything like that" might mislead or confuse a jury.

Like a duplicitous indictment, a vague one can violate Bonds' Sixth Amendment right "to be informed of the nature and cause of the accusation" and can prevent a jury from adequately discharging its duties. In response, prosecutors sought, and yesterday obtained, another new indictment, this one comprised of 11 counts.

What does the indictment being re-written for the second time mean for the government's case?

From the government's perspective, a second revision of the indictment should probably be deemed of little-to-no importance. For one, Judge Illston largely disagreed with Bonds over the 15-count indictment: Bonds had asked for 10 of the 15 counts to be dismissed, and Judge Illston only agreed to dismiss three and to require that two be combined, thus implicitly validating the others. Second, it is not uncommon for an indictment's charges to be restructured due to a defect in how those charges are presented (though a second revision is far more unusual and has not occurred in other BALCO cases). Third, by correcting a defective indictment for the trial, Bonds, if convicted, would have fewer legal grounds to appeal the jury's verdict in that trial. Fourth, Bonds still faces the same maximum sentence of two-and-a-half years in prison under the new indictment as he did in the old.

Put another way, Bonds is in no less trouble now than he was before, and while the indictment's words have changed, they fundamentally refer to the same case against Bonds.

From Bonds' attorneys' perspective, in contrast, the revised indictment should likely be accorded real significance. From their lens, Judge Illston's rationale for ordering a re-written indictment -- some of the indictment's charges were founded on vague questions -- would appear to corroborate Bonds' belief he was asked confusing and ambiguous questions by the government, which means that if he lied, he did so without the requisite knowledge or intent to convict him.

Here's why: under the first revised indictment, Bonds was charged with 15 counts, 14 counts of which are for knowingly making a false declaration to a grand jury (a.k.a. perjury), which is a violation of 18 U.S.C. 1623(a). The "knowing" requirement means that Bonds had to knowingly lie, as oppose to merely lie, so if Bonds didn't understand the questions asked of him, then he may not have knowingly lied in response to them.

The latest indictment is still comprised of 10 counts of lying to a grand jury (with the 11th for obstruction of justice), meaning that if Bonds can plant reasonable doubt in the jury's mind that he was confused, then he is well-positioned to escape conviction next March. legal analyst Michael McCann is a visiting law professor at Boston College Law School, a law professor at Vermont Law School and the distinguished visiting Hall of Fame Professor of Law at Mississippi College School of Law.

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