The jury found Barry Bonds’ non-responsive answer to a question put to him in the grand jury to be obstructionist, and convicted him under 18 U.S.C. § 1503 for Obstruction of Justice.  In a brief per curiam opinion, the Ninth Circuit, en banc, reversed.

During a grand jury proceeding, defendant gave a rambling, non-responsive answer to a simple question. Because there is insufficient evidence that Statement C was material, defendant’s conviction for obstruction of justice in violation of 18 U.S.C. § 1503 is not supported by the record. Whatever section 1503’s scope may be in other circumstances, defendant’s conviction here must be reversed.

Boringo.*  But wait! Judge Alex Kozinski to the rescue in his concurrence.  And as usual, Judge Kozinski hits it out of the park.**

Stretched to its limits, section 1503 poses a significant hazard for everyone involved in our system of justice, because so much of what the adversary process calls for could be construed as obstruction. Did a tort plaintiff file a complaint seeking damages far in excess of what the jury ultimately awards? That could be viewed as corruptly endeavoring to “influence . . . the due administration of justice” by seeking to recover more than the claim deserves. So could any of the following behaviors that make up the bread and butter of litigation: filing an answer that denies liability for conduct that is ultimately adjudged wrongful or malicious; unsuccessfully filing (or opposing) a motion to dismiss or for summary judgment; seeking a continuance in order to inflict delay on the opposing party; frivolously taking an appeal or petitioning for certiorari—the list is endless.

And endless is the sort of list that brings a smile to a prosecutor’s face, as reflected in AUSA Merry Jean Chan’s response at oral argument:

Q: I think it’s a common experience among all of us on the appellate court to ask of the lawyer in front of us in a criminal case that’s come up on appeal: “Counsel, could you please explain to me what happened at trial?” and for the lawyer arguing from the U.S. Attorney’s Office to say, “Your Honor, I was not the trial attorney.” Now, sometimes that’s an evasive answer. They may well know the answer, but it’s true that they weren’t the trial attorney. . . . Has the lawyer just committed a crime? . . . [T]he answer that I just hypothesized was designed to put me off the track. . . . A truthful but evasive answer.. . .

A: I think that would be obstructive, Your Honor.

Boom.  And as this comes from the hand of Judge Kozinski, renowned for his sense of humor, he gives us a good one:

We have no doubt that United States Attorneys and their Assistants would use the power to prosecute for such crimes judiciously, but that is not the point.

The knee-slapper is followed up by the real point:

Making everyone who participates in our justice system a potential criminal defendant for conduct that is nothing more than the ordinary tug and pull of litigation risks chilling zealous advocacy. It also gives prosecutors the immense and unreviewable power to reward friends and punish enemies by prosecuting the latter and giving the former a pass.

Not that they would ever use the law in such a way.  I know, the joke never gets old.  But the implications, not just for witnesses but for anyone who engages with the government, have the potential to be serious if the government is so inclined.

The perception that prosecutors have such a potent weapon in their arsenal, even if never used, may well dampen the fervor with which lawyers, particularly those representing criminal defendants, will discharge their duties.

And indeed, criminal defense lawyers are cautious in the assertions made to a prosecutor, lest they be affirmatively misled and take it out on the lawyer.

In Bond’s case, the one answer before the grand jury upon which he was found to have obstructed justice (referred to as Statement C) was so bizarrely non-responsive as to preclude a finding of materiality.

We start with the self-evident proposition that Statement C, standing alone, did not have the capacity to divert the government from its investigation or influence the grand jury’s decision whether to indict anyone. Here it is again:

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.

The statement says absolutely nothing pertinent to the subject of the grand jury’s investigation. Even when paired with the question that prompted it,

Did Greg ever give you anything that required a syringe to inject yourself with?

Statement C communicates nothing of value or detriment to the investigation.

He might just as well have responded with, “I like pie.”

Among the weapons in an advocate’s arsenal is the ability to respond to a question in such a way as to deflect the negative implications for the cause and, if really good, turn it around to benefit the advocate’s position.

Much as Barry Bond’s answer bore no connection to the question (“and may God have mercy on your soul.”), unless it was done for the “corrupt” purpose of misleading the government with a false response that intentionally sought to undermine the investigation, it was just a stupid, non-responsive answer.  Maybe he did it because he’s a dope, or maybe he did it to avoid an actual answer, but either way, it’s insufficient for obstruction.

The most one can say about this statement is that it was non-responsive and thereby impeded the investigation to a small degree by wasting the grand jury’s time and trying the prosecutors’ patience. But real-life witness examinations, unlike those in movies and on television, invariably are littered with non-responsive and irrelevant answers.

And as admirably explained by Judge Kozinski, that’s not enough for a conviction, though it’s more than sufficient to give a witty judge plenty of material for his concurrence.

* Inside joke. No, the story isn’t worth telling, but it brings a smile to my face, and, really, isn’t that what it’s all about?

** Judge Rawlinson gets an honorable mention for the opening of his her*** dissent:

There is no joy in this dissenting judge. The per curiam and concurring opinions have struck out.

A good try, but she doesn’t win the date.

*** Jim Tyre has pointed out to me that Judge Rawlinson is a she, not a he (or otherwise). Notwithstanding his sexist obsession, I correct.