Kallas Remarks by Steve Kallas   –   Although almost a distant memory already, the post-conviction case of Barry Bonds goes on in federal court in San Francisco. This week, there was supposed to be a motion heard before Judge Susan Illston to determine whether or not Bonds’ conviction should be overturned and/or whether Bonds should be granted a new trial on the obstruction of justice count upon which he was convicted.

At the same time, the government was supposed to announce whether it would seek to retry Barry Bonds on the three perjury counts, which had resulted in a hung jury when deciding the fate of Barry Bonds (they did convict, however, on Count Five, the obstruction of justice count).

While the motion was returnable this week (that is, it was originally to be argued before Judge Nelson on July 1), it has now been put off until August 26. At the same time, however, the government was supposed to announce whether or not it would re-try Barry Bonds on the three perjury counts upon which the jury deadlocked in the original trial.

The government moved to have that decision delayed until after Bonds’ motion for a new trial was decided. Over the objection of the defense lawyers, Judge Illston has allowed the government to wait until, at least, late August, to make its decision.


Well, to some degree, it is a game of chicken. The government, at times killed in the media for wasting time and money (“don’t they have other cases to prosecute?” or things of that nature), probably wouldn’t re-try Bonds if they knew that this conviction would stick and that Bonds, no matter what his sentence (most think he won’t actually go to prison), would be a convicted felon.

One would have to think that, no matter what Judge Illston decides on the defense motion to vacate the conviction and/or order a new trial, the defense is simply laying the groundwork for its appeal on the obstruction count, again, the only count that Bonds went down on.


The problem for the government is, even if Judge Illston denies the defense motion to vacate the conviction and/or grant a new trial, the Ninth Circuit Court of Appeals will eventually hear the same argument. So, the government, even if they defeat the motion in the trial court, will probably still have an appeal on the same issue pending (or, at least, about to be filed) after Judge Illston decides the pending motion (assuming that Judge Illston denies the motion).

What that means is the government won’t really know the final outcome of this case until an appeal is briefed, argued and decided in the Ninth Circuit Court of Appeals.


The problem for the defense is that, even if they win before Judge Illston or the Ninth Circuit Court of Appeals, they still (right now and in the future) have the specter of a re-trial on the obstruction count and/or some (or all) of the three perjury counts in the indictment. As you probably know, there is no double jeopardy when there is a hung jury. So, the government could decide to re-try Bonds on any or all of the perjury counts and the obstruction count if Judge Illston grants the defense motion.


Barry Bonds is now represented by Skadden, Arps, one of the top law firms in the country (some would say the top law firm in the country). The motion papers before Judge Illston are both well-written and persuasive. This motion has some merit.

It says here, however, that Judge Illston will not grant the defense motion because, generally speaking, trial judges are loathe to overturn jury verdicts. She may simply leave it up to the Court of Appeals to deal with the issue.

On the other side, it says here that the government will announce, at least, its intention to re-try Barry Bonds. If nothing else, it will put additional pressure on Bonds, both time-wise and financially. In addition, if you followed the trial, you know full well that Bonds was on the cusp of being convicted on his denial that he was never injected by his trainer, Greg Anderson, or anybody else. Of course, there was explicit testimony from a former Bonds’ personal assistant that she saw Anderson inject Bonds.

The vote on that count, according to jurors, was 11-1 to convict (indeed, there was a statement from a juror that, at one point, it was 12-0 to convict and then, overnight, one juror changed her mind).

While the government may not want to announce its intention to re-try (because of the public outcry of waste of resources or racism or something else that is sure to follow such announcement), it says here that they will announce such an intention to re-try, at least on the injection perjury count (and, if Judge Illston does grant the defense motion on the obstruction count, as to that count as well).

If all appeals are exhausted (and denied) and Barry Bonds will be a convicted felon for the rest of his life, it says here that the government will not re-try Bonds.

The motion to vacate the conviction and/or for a new trial is now scheduled to be heard on August 26, 2011, in federal district court in San Francisco.

© Copyright 2011 by Steve Kallas.  All rights reserved.

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