Criminal defense lawyers beware: if Bob Costas pops up in your jury panel, you’ll need to find some way to strike him.

Last night Barry Bonds hit home run number 756, breaking Hank Aaron’s all time record. This morning Bob Costas appeared on the Today show, commenting on the mental asterisk that many baseball fans (at least outside of San Francisco) attach to the achievement, due to the overwhelming amount of press coverage over the past few years about the ‘Steroid Era’ in baseball.

Matt Lauer: …you have bristled at the idea that [Bonds] is innocent until proven guilty.

Bob Costas: Well, this ‘innocent until proven guilty’ is an insufferable platitude that is masquerading as high mindedness as if those of us who don’t somehow withhold all judgment need a remedial course in civics…

Costas then points out that the debate about Barry Bonds’ home record is not playing out in a criminal jury trial setting, and that different standards apply to real life. 

This is a legitimate distinction. Two guys at the local bar discussing Babe Ruth vs. Roger Maris need not limit themselves to rules of evidence and criminal procedure to make their points. Life and liberty are not at stake in the debate.

Still, Costas’ description of the vital legal concept shows such disdain for the notion it makes me cringe. I’ve written before about the real life concept known as the presumption of guilt.  I may track what the blogosphere’s reaction is to the record over the next few days, and report back on what I find.

  • I’m thinking this is a great opportunity for a line of questioning for voir dire. Usually sports themes don’t play that well to many on a panel, but I can’t believe there are too many people that haven’t heard about Bonds. What do you think?

  • In the case of Barry Bonds the evidence of guilt is very, very strong. Plenty enough to override any presumptions.

    Size 10 1/2 shoes to size 13 shoes? What more do you need to know?

  • Matlock:

    I thought about that as well. Off the top of my head though, it would seem a little convoluted to talk about Costas talking about Bonds in voir dire, and I’m not sure Bonds is all that sympathetic of a figure here in Austin anyway.

    I’ll write it up in a day or so and post it on my DWI blog.

    And, I’m always willing to bat around voir dire suggestions, so if you have any Bonds exmaples you come up with, lemme know.

  • Gary:

    I’m sure Bonds used performance enhancing drugs, namely steroids. I’m not sure it makes sense to me as a criminal defense lawyer to talk about whether he’s guilty beyond a reasonable doubt, because I don’t know what the elements of the hypothetical offense would be.

    I believe that even he has acknowledged that he took ‘the clear’ but he thought it was flaxseed oil. (Perhaps that was just from the leaked grand jury testimony and not really straight from the horse’s mouth?)

    Anyrate, my main point was about the contempt that Costas’ statements showed for the idea of the rpesumption of innocence, not that Bonds actually is innocent.

    The record certainly has a mental asterisk beside it now, in my book anyway.

  • You’ve hit on the key criminal justice issue in your response, Jamie – what are the elements of a “crime” for him to be guilty of? Baseball didn’t have a rule against it when he admits having taken it, as I understand the whole episode (from way, way afar, having not read Game of Shadows, etc.).

    But then, what do I know? I still think O.J. did it.

  • Jamie,
    I don’t think you have to use Costas in the example. I think if you can somehow get people to talk about their feelings about Bonds, and then correlate that to a criminal case in general. I still don’t know how.

    As for your sports themes, one that I have used before that works pretty well in Cowboys country has to do with prejudice. Trying to get juries to get past the standard negative thinking of prejudice. Then I talk about how if I was on a jury with Dwight Clark as a defendant, I, as a Cowboys fan, might not be able to get past my prejudice of “The Catch.”

  • I think it was just from the leaked GJ testimony.

    I’m convinced on a social level.

    On a criminal level I’m not convinced becuase the none of the testimony is really verifiable.

    I think people throw out that bullshit about presumed innocent way too much when we aren’t talking about criminal proceedings. There’s no reason to give anyone the benefit of the doubt in social situations.

    Based on what “testimony” I’ve seen about Bonds and Steriods, I’d have to vote not guilty if on a jury, but I think he should have been kicked out of baseball anyway.