Kallas Remarks by Steve Kallas 


Back on July 14, 2011, Judge Reggie Walton, in federal district court in Washington, D.C., ordered a halt to the then two-day old trial of Roger Clemens. The prosecution had shown the jury evidence that had previously been ruled inadmissible by Judge Walton, causing him to declare a mistrial in the case.

Last Friday, Judge Walton ruled that Clemens must stand trial again and set April 17, 2012 as the trial date. Lawyers for Roger Clemens argued vehemently that he should not have to stand trial again since his trial had already begun (causing double jeopardy). But Judge Walton, stating that the holding of the Supreme Court of the United States is that the defendant has to show that the prosecutors intentionally showed the jury the evidence (and while, in this case, even questioning the prosecutors’ motives), would not go so far as to say that they did act intentionally.

Thus, Judge Walton did not dismiss the case. Indeed, he stated that he could find no case where a defendant was successful, on this fact pattern (mistrial at the start of a trial), of getting an indictment dismissed.

As a result, Roger Clemens will be tried again. Clemens did have to waive his right to a speedy trial (Judge Walton would have set the retrial for a date earlier than next April) because the delay is due to the fact that one of his attorneys already has another trial scheduled for this winter.

Most legal experts, including this writer, did not believe that Judge Walton would dismiss this case. The Supreme Court standard is simply too stringent and, frankly, no prosecutor worth his salt would ever attempt to intentionally disregard a judge’s order in such a situation. Indeed, one would have to believe that the fact that the two lead prosecutors (both have very good reputations) had appeared before Judge Walton many times without incident was a factor that Judge Walton considered before allowing the retrial.

While Rusty Hardin, lead lawyer for Roger Clemens, has the right to appeal Judge Walton’s decision, it says here that he won’t. If he does, in this writer’s opinion, he would be wasting his client’s time and money, as the chance of success of such an appeal is incredibly small (if that).

Thus, Roger Clemens will go on trial for two counts of perjury, three counts of making false statements and one count of obstructing a Congressional investigation (all felonies) in federal district court in Washington, D.C. on April 17, 2012.


On April 13, 2011, Barry Bonds was convicted, in federal district court in San Francisco, of obstruction of justice (a felony). A mistrial was declared as to the other three (perjury) counts against him as the jury could not reach a unanimous verdict one way or the other.

Defense lawyers for Bonds made a post-trial motion before trial judge Susan Illston to either overturn the conviction on the obstruction count or to grant a new trial as to that count. On August 26, 2011, Judge Illston denied that motion, upholding the jury’s guilty verdict on the obstruction charge.

Sentencing for Barry Bonds on the felony conviction has now been set for December 16, 2011.

Last week, prosecutors (with knowledge of Judge Illston’s decision to let the jury verdict on the obstruction count stand) filed papers in federal district court stating their intention not to retry Barry Bonds on the remaining three perjury counts that had ended in a mistrial back in April.

The above is obviously good and bad news for Barry Bonds. On the one hand, he will not face a retrial on any of the three perjury counts, including the “nobody injected me but my doctor” count, which the jury had voted 11-1 to convict upon. On the other hand, as of right now, he is a convicted felon.

The prosecutors, who obviously wanted to wait to make sure that Judge Illston would uphold the jury verdict (generally speaking, trial judges are loathe to overturn jury verdicts) before stating that they would not retry Bonds on any or all of the perjury counts, now have their “victory” and probably did not want to spend any more time and resources going after Bonds (needless to say, the government has been roundly criticized for wasting time and money on this prosecution).

While this writer thought that the government might retry Bonds on the injection perjury count (you will recall they had explicit testimony from a witness who stated that she saw trainer Greg Anderson inject Barry Bonds), apparently they have decided not to prolong the case any more than necessary past sentencing and, probably, an appeal.

Forward-looking, after sentencing, the defense will probably appeal the conviction and, at a minimum, that will not be a frivolous appeal. It is very unusual for a defendant to be convicted of obstruction without a conviction on an underlying perjury charge.

However, Judge Illston gave her justification for upholding the conviction (which was, essentially, for a rambling, evasive answer that Barry Bonds gave in response to a question about whether his trainer, Greg Anderson, had injected him) by writing that the question was material and that the defendant tried to obstruct the grand jury by not answering it when first asked (he later did answer “no”). In addition, Judge Illston wrote, according to The New York Times, that “[a]n evasive answer about an issue material to the grand jury is not necessarily rendered immaterial by the later provision of a direct answer, even if that direct answer is true.”

This last sentence, in this writer’s opinion, will be the one that the appeal to the Ninth Circuit will focus upon. On the one hand, an appellate panel can agree with this sentence and uphold the conviction. On the other hand, that same panel could find it too vague, too tenuous (especially since there was a hung jury (even though it was 11-1 for conviction) on the “injection” count) to uphold a felony conviction against Barry Bonds (after all, the appeal will say, he did eventually answer the question).

Sentencing for Barry Bonds will be on December 16, 2011, with a fascinating appeal (it says here) to follow to the Ninth Circuit Court of Appeals.

© Copyright 2011 by Steve Kallas.  All rights reserved.

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