The Closer

Veteran appellate lawyer tries to shut down Barry Bonds’ conviction

By Sylvia Hsieh
The Daily Record Newswire
 
BOSTON — It’s 10 minutes before game time, when Courtroom 3 will open its doors for business, and Barry Bonds’ lawyer, Dennis Riordan, is in the cafeteria talking tactics with two of his co-counsel like a pitcher at a mound conference with runners on in the bottom of the 9th.

Instead of the 9th inning, Riordan is in the 9th U.S. Circuit Court of Appeals in San Francisco, trying to overturn his famous client’s conviction for obstruction of justice.

A team player, Riordan is asking his co-counsel what they think of an analogy he devised to explain to the judges why Bonds’ conviction should be thrown out.

To the casual observer, the case evokes larger debates — the fall of one of baseball’s greatest hitters, overzealous singling-out of a scapegoat, the tarnishing of our national pastime.

But to the technician Riordan, the legal case hinges on 52 words of testimony and the language of a federal statute making it a crime to obstruct, impede or influence an investigation.
If baseball is a game of inches, appellate law is a craft of diminishing odds. At each step, the legal grounds narrow and the tougher it gets to pull out a win.

“If you’re batting .300 in baseball, you’re a superstar, but you’re still failing far more often than you’re succeeding,” Riordan said during an interview in his office in San Francisco. Even if his average is significantly better than other lawyers’, after four decades in the game he knows the next loss is just around the corner.

“Rarely a month goes by when I don’t lose a case,” he said.

He suffered his most stinging defeat very early in his career, but that only drove him to dig deeper. At 63, Riordan’s client list reads like a People’s History of the besieged and notorious:
the Black Panthers, United Farm Workers, Salvadoran priests, Attica prison rioters, the West Memphis Three.

And Barry Lamar Bonds.

In November 2007, three months after breaking Hank Aaron’s home run record, Barry Bonds hit the headlines again when he was indicted on 10 counts of perjury and obstruction in a grand jury probe of illegal steroid proliferation.

Several blocks from the federal courthouse where the indictment came down, in a two-story Victorian house where Riordan practices with his law partner Donald Horgan, Riordan answered a call from criminal defense lawyer Cristina Arguedas of Berkeley, Calif.

Bonds was putting together his legal team. Did he want to join?

Riordan began working behind the scenes on the legal issues with an eye toward any appeal that would likely arise.

He’s not the starter, out front in the early innings; he’s the reliever, coming in later — often when the home team is in trouble.

The appellate role suits Riordan’s love for the intricacies of legal arguments. Mention a case he handled 30 years ago, and he’s likely to quote from the trial transcript and rattle off which arguments he won and lost.

Like a closing pitcher tasked with saving games, Riordan must maintain a certain type of mental discipline to repeatedly face high stakes, slim chances and dwindling time.

A relief pitcher who enters a game with the attitude, ‘Hey, I’m only human, I may fail,’ is  not cut out for pitching when the game is on the line, according to the late sports psychologist and mental skills coach Harvey A. Dorfman.

“Relievers must understand their ‘humanness’ but they must also be able to recover with strength and confidence from the failures of a bad outing — or from one pitch to the next. They must rationally know that it’s impossible to get everyone out, or get the job done every day. But they must go at that job as if they’re invincible,” Dorfman wrote in “The Mental Game of Baseball,” a book some major league players refer to as their Bible.

While Riordan says he refuses to take a client who has no chance of winning and is brutally honest with clients he does represent about their likelihood of losing, if he sees any opening for reversal, he is “bent on finding grounds” to overturn a conviction.

And like any great closer with the mettle to challenge the other team’s slugger with a fastball down the middle, Riordan eagerly faces off against the prosecutorial muscle of the state.

After graduating from New York University Law School in 1974, he moved to San Francisco and quickly maneuvered himself onto the defense team of Johnny Spain, a Black Panther accused of double murder in a bloody prison break.

Riordan would pound away at the case for 15 years, lose in state and federal court, and go to the U.S. Supreme Court twice before finally winning Spain’s freedom in 1989 when the 9th Circuit ruled that the 25 pounds of shackles restraining Spain in the courtroom violated his right to a fair trial.

The losses Riordan endured in the course of that first case have never left him; they may even be what propels him.

“Nothing hurt like that case,” he said. “I was five years out of law school. I lost in state court. I lost in the U.S. Supreme Court. It was devastating.”

There’s a fine line between realism and fatalism; Riordan wills himself toward the former.

He opened his own practice in 1981, and went on to chalk up major wins in high-profile cases, including reversal of George Franklin’s conviction for the murder of a young girl in the first case allowing “repressed memory” testimony and the release of Damien Echols, one of three alleged “Satanists” whose 1993 convictions for murdering three boys in West Memphis, Ark. has long been questioned.

While the stakes are smaller in the Bonds case, the journey has already been tortuous.

In 2009, Riordan took over briefly when the government brought an interlocutory appeal arguing that steroid-positive blood and urine samples and log sheets recording them as belonging to Bonds were admissible under a hearsay exception. (Bonds’ childhood friend and trainer, Greg Anderson, who gave the samples to the lab, has refused to testify about whether they came from Bonds.)

Riordan won that argument in a 2-1 ruling from the 9th Circuit, and the evidence stayed out.

By the time a jury got the case in 2011, the 10-count indictment had been chopped to five.

At the end of trial, jurors deadlocked on whether Bonds lied to the grand jury, coming within one vote of conviction on one of three perjury counts. A fourth count was dismissed.

U.S. District Judge Susan Illston declared a mistrial on the three perjury charges and, after Riordan wielded the Speedy Trial Act and demanded a quick retrial, the government balked at trying Bonds again.

The only legal question left is that fifth count, obstruction of justice, on which the jury convicted Bonds and found that he gave an evasive answer when asked if Anderson ever supplied him with injectable steroids.

And now it’s Riordan’s job to convince two out of three judges on the appellate panel to erase the conviction.

Riordan contends that Bonds’ 52-word answer — in which he digresses into irrelevant comments about how being a “celebrity child” of a famous father taught him not to get involved in other people’s business — was not in the indictment and therefore cannot support his conviction.

“To me it’s absolutely indisputable that he was never charged with the conduct he was convicted of. And, second, he was not convicted of something that is a crime,” Riordan said, referring to Bonds’ rambling answer. “That’s a strong case.”

But, as experience and math warn, even in the strongest cases reversing a conviction is rare.

“When you get to the best 7 to 8 percent of criminal appeals that absolutely scream out for reversal, in only about half of those cases — where you can’t possibly lose — will you win,” Riordan said.

With those odds, he admits it’s a struggle not to let the losses paralyze a lawyer.

One of the keys to being a successful closer, a player who holds the fate of the game in his hands virtually every time he takes the mound, is not to personalize failure, according to Dorfman.

“Herein rests one of the distinctions the closer must make for himself, if he is to be well-suited for the role. Though he may fail to achieve his goal on a given day, he is not the failure,” Dorfman writes in “The Mental ABCs of Pitching.”

Riordan, too, has wrestled with this distinction.

“You develop scar tissue,” he said. “You work at keeping an emotional distance. Those who don’t, quit.”

What keeps Riordan from quitting has changed over time.

Although he entered this line of work fueled by a 1960s antiwar, leftist ideology, he avoids overtly political statements about his clients, including would-be Hall-of-Famer Bonds. Today his motivation is an apolitical motto of simplicity.

“My principles have narrowed down to one: Try not to be stupid,” he said.

That means not overlooking the obvious or the unknown, asking himself over and over if his arguments make sense and if he’s missed anything.

“You have to be sensitive to the realities that can sink you. I’m constantly questioning whether I got it right,” he said.

The fear of getting it wrong hounds him more than ever.

“In order to be good, you have to be terrified at every point in your career,” he said. “When people lose the fear, that’s when it all goes downhill.”

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