Category Archives: Criminal Law

Auburn Justice: The Serious Issue Facing Former Auburn Football Player Mike McNeil

Selena Roberts’ serious allegations against the Auburn athletics department earlier this week caused an uproar among members of the media and college football fans.  If true, the story’s accusations of rampant drug use by football players, coaches handing players money under the table and academic officials changing football players’ grades to ensure their eligibility, are enough to turn Auburn athletics on its head.  Tucked away in the story, though, is an issue more pressing and with greater possible harm than any NCAA sanction can impose.  It is one that may cost former Auburn football player, Mike McNeil, his freedom.

McNeil is currently facing trial on two felony counts of first-degree robbery.  The charges stem from allegations that four former Auburn football players robbed a home while armed.  While building allegations of Auburn’s alleged athletic improprieties to a crescendo, Roberts quickly slipped a fact into her story that a trained legal eye would not let go unnoticed.  Eight paragraphs into Roberts’ Auburn expose, was the following quote,

“To show you how innocent he is, Mike is willing to go to trial because he says he didn’t do it,” says Ben Hand, who recently was dismissed as McNeil’s attorney after the family formally complained that he had a conflict of interest. “Mike McNeil didn’t rob anyone.”

As it turns out, McNeil’s attorney previously represented a man who lived in the house that McNeil allegedly robbed.  In the legal world, this is called a “conflict of interest.”  And in the legal world, a conflict of interest is a reason for which a criminal defendant can appeal the outcome of his case, should he be convicted.

Roberts’ assertion in her article that Hand was dismissed as McNeil’s attorney is incorrect.  That is because today, the Auburn educated judge hearing McNeil’s case ruled that Hand could not withdraw as counsel for McNeil’s case.  Rather, McNeil’s case will proceed to trial next Monday.

At that trial, McNeil faces three options when it comes to legal representation.  The first, is to be represented by a lawyer who once represented someone whose home McNeil allegedly robbed.  The second is for McNeil, without a college degree, to represent himself in a felony case in which he faces 21 years to life in prison.  The third option, is for McNeil to hire a new attorney who will assist his conflicted attorney.  That attorney will have 72 hours to prepare for a trial that took the prosecution nearly two years to bring to fruition.

Arguably, there is not an attractive choice present in this bunch.  As depicted above, Hand has maintained McNeil’s innocence to the media and will likely advocate zealously for him.  Additionally, the presiding judge in McNeil’s case, in ruling that Hand cannot withdraw from the case, determined that the prosecution will only proceed to trial against McNeil on two charges, as opposed to the seven charges he was originally facing.  This was based upon the judge’s finding that conflicts existed between Hand and those charges, but were not present in the two charges McNeil continues to face.  Regardless of these facts, questions likely persist in McNeil’s mind as to whether his attorney bears any biases towards him and if he will receive a fair shot at justice.

As the time on the clock dwindles down to McNeil’s trial date, a review of 11th Circuit (the circuit in which Alabama is located) and Supreme Court case law is necessary.  One basis upon which a defendant can appeal his conviction is for ineffective assistance of counsel.  The United States Supreme Court has ruled that a criminal defendant’s right to effective assistance of counsel is violated where a defendant’s attorney has an actual conflict of interest that affects the defendant adversely.  Something is an actual conflict of interest when a lawyer has inconsistent interests.  11th circuit case law says that a conflict of interest exists when a defendant can point to specific instances in the record to suggest an actual conflict or impairment of interest.  Specific instances could include an attorney choosing to elicit or failing to elicit evidence helpful to one client but harmful to another.

The question here, then, is does Hand have inconsistent interests when it comes to representing McNeil?  While Hand represented a resident of the home McNeil allegedly robbed, that representation came on an unrelated matter that occurred prior to the alleged robbery.  Given the differential between the matters and the time that has passed sense, does an actual conflict exist?

If an actual conflict of interest existed, case law also requires that the conflict adversely affected the counsel’s performance in order to successfully appeal on the basis of ineffective assistance of counsel.  A defendant must show three things to prove an adverse effect:  1.  That the defense attorney could have pursued a plausible alternative strategy, 2.  that the alternative strategy was reasonable and 3. that the alternative strategy was not followed because it conflicted with the attorney’s external loyalties.

At this stage, only McNeil and Hand know what alternative strategies exist, if any.  And at this stage, it is likely that they are the only two people who know why one defense strategy was chosen over another.

Should McNeil be convicted and wish to appeal his case, the real question that may persist is whether he waived his right to conflict-free counsel.  A defendant waives his right to conflict-free counsel when he chooses to proceed to trial with an attorney who has an adverse conflict of interest.  Arguably, this decision could bar an appeal on this issue, as the Supreme Court case of Johnson v. Zerbst found that a “waiver of the right to conflict-free counsel ‘disposes of the need to evaluate the actual or potential ineffectiveness of counsel caused by the alleged conflicts of interests.'”  To demonstrate a waiver, it must be shown that the defendant was aware of the conflict, recognized it could impact his defense and knew of his right to obtain other counsel.  Notably, today, the presiding judge in McNeil’s case advised him of his right to proceed to trial without an attorney or with a new attorney to assist Hand.  It is to be seen what decision McNeil makes.

Many unknowns face Mike McNeil at this moment.  The decisions facing McNeil as his trial approaches are lofty.  Truth be told, they are likely as big as the choice he made to commit to playing football at Auburn University.

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What The Emails Acquired By CNN Mean To The Case Against Penn State Officials

Recently, CNN a published a story detailing emails it obtained access to which allegedly were sent between Penn State President Graham Spanier, former Penn State Athletic Director Tim Curley and former Penn State Senior Vice President for Business and Financing Gary Schultz.  CNN notes that it does not have the emails in its possession, but that their contents were made available to CNN.  Thus, because CNN does not have the emails in its possession, there is always the possibility that the contents made available to CNN do not fully depict the conversations alleged to have occurred between Spanier, Curley, and Schultz in the wake of Mike McQueary telling Joe Paterno about an incident with Jerry Sandusky and a child in a shower on campus.

However, if CNN’s report fully and accurately describes the conversations between Spanier, Curley and Schultz regarding their response to being told about Sandusky’s inappropriate sexual contact with a child in a Penn State shower, then the prosecution’s case against Curley and Schultz may be sealed.  Both Curley and Schultz were also charged as a result of the investigation into Jerry Sandusky.  Each man is charged with one count of perjury stemming from them denying to the grand jury knowing about the incident originally reported by Mike McQueary.  In Pennsylvania, perjury is a third-degree felony that is punishable by 7 years in prison and a $15,000.00 fine.  Additionally, they are both charged with one count of failing to report suspected child abuse, which is a summary offense punishable by 90 days in prison and a $200.00 fine.

The alleged emails reported upon by CNN signal trouble for each man’s defense.  First, the alleged emails depict that the men had knowledge of the allegations raised by McQueary.  If the emails are accurate and a complete depiction of the conversations between the men, then it will likely be hard for their defense to argue against a perjury charge brought for the men asserting in grand jury testimony that they did not know of the allegations brought by McQueary.

Additionally, if the emails reported upon by CNN are accurate, it appears that the men had knowledge of some sort of misconduct on Sandusky’s part.  They also make mention of contacting the Department of Child Welfare.  This statement indicates the possibility that the men knew of their legal duty to report to allegations raised by McQueary to the Department of Child Welfare.  However, nothing in the emails reported upon by CNN specifically indicates that the men knew of the sexual nature of Sandusky’s contact with the child in the Penn State shower.  Therefore, the defense could argue that the men did not believe that their legal duty to report the suspected child abuse was triggered.  Yet, because reference was made to contacting the Department of Child Welfare, the prosecution will likely rebut that argument by saying that once the story of suspected child abuse was brought to them by Paterno, they had a legal duty to report it to authorities.

The emails obtained by CNN may be the prosecution’s best evidence in its case against Curley and Schultz.  However, the prosecution will face legal hurdles in providing the emails as evidence during the two men’s trials.  Notably, the defense will object to the emails’ admission into evidence as trial by arguing that the emails constitute “hearsay evidence.”  In a court of law, hearsay evidence is inadmissible unless a hearsay exception exists.  Arguably, the emails would fall under the business records exception to the hearsay rule.  Under the business records exception, any writing or record made as a memorandum of any act or transaction is admissible as proof of that act or transaction.  Here, it was arguably the ordinary course of business for Curley, Schultz and Spanier to communicate about how to punish or deal with an athletics department employee that violated the department’s policies and procedures.  The emails obtained by CNN were made near the time of the event when the allegations concerning Sandusky were made to the three men.  Thus, the prosecution will argue that it can enter the emails into evidence.  However, they will likely face stringent objections from the defense in doing so.  The defense will likely argue that emails concerning alleged sexual abuse against an athletics department employee fall outside of the ordinary course of business, and as such, constitute hearsay.

Overall, it appears that the emails obtained by CNN will greatly benefit the prosecution’s case against Schultz and Curley.  However, again, it is important to remember that what was reported upon likely only represents a snippet of the conversations which allegedly occurred between the men.  Thus, there is the possibility that the defense continues to be built in this case.  Nonetheless, given the jury’s finding of guilty on 45 of the 48 counts against Sandusky, Schultz and Curley may benefit from taking a plea deal in this case.  This is due to the fact that with the outcome of the Sandusky trial, it was made apparent that the jurors of Centre County Pennsylvania take these allegations and charges very seriously and are willing to bring guilty verdicts.

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Lessons From the Roger Clemens Verdict

Four years after Roger Clemens voluntarily testified before Congress during a hearing on performance enhancing drug use in Major League Baseball, he was acquitted of all charges brought against him from statements he made during that hearing.  Indicted in August 2010 on two counts of perjury, three counts of making false statements and one count of obstructing Congress, the case against Clemens has proved to be a lengthy and unsuccessful battle brought by federal prosecutors.  Clemens’ full acquittal came in the prosecution’s second attempt to try the case, after the first trial was declared a mistrial when the prosecution played a video tape in open court with evidence that the judge previously ruled inadmissible.  The outcome of the Clemens trial should serve as a lesson to prosecutors and investigators in similar cases which may arise as to how cases must be prepared and argued.

There are several striking factors which led to a full acquittal of Clemens by the jury.  First, is the timeframe in which Clemens was brought to trial.  Clemens originally testified before the congressional hearing in February 2008.  This was before the economy collapsed later that same year and before millions of Americans would be displaced from their jobs and homes.  The economic and political climate has greatly changed in the United States has drastically changed since February 2008.  In February 2008, performance enhancing drug use amongst professional athletes was a pressing issue for the country, as demonstrated by the fact that congressmen sought the need to hold a large-scale, widely televised hearing on the issue.  However, in June 2012–when the case against Clemens finally ended–performance enhancing drug use amongst professional athletes is arguably of the least concern to American citizens.  Thus, the prosecution faced an upward battle in winning over the jury in this case.  Although before being sworn in as a jury member, jurors took an oath saying they could be impartial, it is likely that many held the belief that this case was unnecessary and was not serving a greater purpose.  Many likely believed that taxpayer’s dollars could be better spent and that government resources and time could better be devoted to lowering the unemployment rate and fixing the housing market.

The toughest battle a prosecutor can face is that of winning over the jury.  As a prosecutor in a criminal case, you face the burden of convincing a group of people who are strangers to you that the evidence you put before them proves the defendant’s guilt of a crime beyond a reasonable doubt.  This is an incredibly steep legal standard to meet.  When you are facing a jury skeptical about why the prosecution brought a case, it is even more so important that a prosecutor has a solid lineup of witnesses and evidence to present the jury.  In the Clemens trial, it is arguable that the prosecution did not have sound enough evidence to overcome juror’s possible perceptions that the trial was unnecessary. 

The weakness of the prosecution’s evidence is demonstrated by the fact that the only eye-witness they had to tie Clemens to performance enhancing drugs was Clemens’ former strength and conditioning coach, Brian McNamee.  Generally, one credible eye-witness would be enough to prove a case.  However, with an already skeptical jury and a hard-hitting defense attorney like Rusty Hardin, one eye-witness was not enough in this instance.  During cross-examination of McNamee along with presentation of his own defense witnesses,  Hardin was able to thoroughly destroy the credibility of McNamee’s account of events related to Clemens.  This largely led to the full acquittal of Clemens, as jurors were left without any other witnesses to provide an eye-witness account tying Clemens to performance enhancing drug use.

While to some, the Clemens trial stands as a symbol of the government prosecuting a case that taxpayers would prefer it didn’t, the case should actually stand as something larger.  What this case should stand for, is an example of the high burdens prosecutors face when bringing and trying a case.  Practicing prosecutors should learn from this instance to ensure that they work to bring their cases in the most timley manner possible and that when they do so, they have adequate enough evidence to prove their case beyond a reasonable doubt.

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The Barry Bonds Saga: A Look at Barry Bonds’ Appeal

BY:  Andrew Riley, Ruling Sports Intern (Twitter:  @BuriedTalents)

By now most people are aware of the Barry Bonds story. Baseball fans surely know of his highly successful career that ended tumultuously due to the crackdown on performance enhancing drugs (PEDs). Most baseball fans have also heard many of the Barry Bonds rumors in regards to how he has treated people in the past. Many have formed opinions based on those rumors, or instead, his awesome display of hitting throughout his career. Either way, his court issues are no longer a Major League Baseball problem. Fans have shown a great ability to forgive throughout the PED crackdown. Andy Pettite’s career has been rejuvenated despite his admission and apology for using Human Growth Hormone (HGH). Mark Maguire has been accepted back as the hitting coach for the St. Louis Cardinals with open arms after his apology. It seems that anybody who has been implicated in taking PEDs but has admitted and apologized for doing so has been forgiven. MLB also now has a testing system in place to discourage PED use. Parks across the country are reaching attendance records. Things are good for baseball.

Barry Bonds, however, was implicated in the “BALCO” scandal. The Bay Area Laboratory Co-operative (BALCO) was a nutritional supplement company that provided PEDs to professional athletes. The company had gained popularity from the late 1980s to the early 2000s until an anonymous tip of BALCO’s activities was sent to the authorities. An indictment resulted for those associated with BALCO including Barry Bonds’ trainer, Greg Anderson. Numerous athletes were outed as PED users in multiple sports. Many were required to testify before a grand jury in relation to the indictments, including Barry Bonds. As a result of his testimony, the government charged him with counts of perjury and obstruction of justice.

The four counts of perjury were based on testimony at the grand jury where Bonds–in different variations–denied having been injected by Greg Anderson or anyone else with steroids, or HGH. Barry Bonds was acquitted of these charges. The most compelling reason he was acquitted of these charges was because Greg Anderson refused to testify. As a result, the government could not substantiate any of the documentation presented as evidence that Bonds had taken a test for PEDs, let alone failed one. Therefore, if the government could not prove that he failed a test, then they could not prove beyond a reasonable doubt that he provided a false statement to that fact. The obstruction charge for which he was found guilty is the basis for his appeal filed on May 3, 2012. The conviction of obstruction was largely weighted on the content of what is labeled “statement C,” also known as the “celebrity child” statement. In this statement, after being asked if Greg Anderson had ever injected him with anything, Bonds spoke about his personal relationship with Greg Anderson including what it was like to grow up as a celebrity child. The government heavily relied on this statement and claimed it was evasive.

Recently, Bonds, through his attorneys, filed an appeal to his conviction. Bonds’ appeal consists of four arguments as to why his conviction should be overturned. The first suggests that the obstruction charge, 18 U.S.C. § 1503, does not cover Bonds’ alleged conduct because, 1) §1623 (perjury) is supposed to cover false statements of witnesses, 2) neither section has ever been extended to include truthful statements, and 3) if a witness is refusing to answer a question then he should be charged with contempt of court, §401. The second argument concedes, in theory, that if such a truthful statement is extended to fit under §1503, then it would not meet the materiality element. Bonds argues, that his statement was actually encouraged by the prosecution and that it was nothing more than a “temporary digression”. Bonds further supported this theory by citing the prosecution’s own words which state that Barry Bonds had gone “off into the cosmos” when answering some questions. Third, Bonds argues that statement C was not even mentioned in the indictment to which he was convicted. As a result, the indictment was deficient. In effect, Bonds was convicted on a charge that he was not informed of and that the grand jury never found probable cause for. Fourth, Bonds’ legal team argues that even if the government’s theory was true, the jury instruction was “fatally deficient”. Further, Bonds appeal asserts that, since the government claims Bonds should be convicted based on the totality of his testimony and that statement C is incorporated into that totality, the jury instruction should have included that “it could not find Mr. Bonds guilty unless his statement, considered in light of the totality of his testimony, was false, misleading, and evasive.” This instruction was denied at trial.

The arguments presented in the appeal should have a high likelihood of success. As for the first argument Bonds presented, it seems that if a witness is not answering a question in a trial, certain measures can be taken during the trial to rectify the problem. At the very least the prosecution should have warned Bonds that his answer was evasive and ask him the question again in attempt to prompt a more direct response. In fact, Bonds was asked the question again and he did answer directly. Contempt of court laws were created so that there is immediate recourse when somebody stands in the way of the pursuit of justice. It seems sneaky for the prosecution to hold their tongue and allow a witness to ramble on about being a celebrity child without warning that they will be charged with obstruction of justice if the rambling continues. More importantly, the defense points out that an obstruction charge has never been extended to include truthful statements in any circuit court. If that claim is accurate, then strong precedent exists in favor of the defense that the conviction was overextended and will likely be found invalid.

As for the second argument regarding the element of materiality, it would be tough to prove that the celebrity child remark was both material and evasive. The defense points out that if the government proves that statement C was irrelevant, then it ultimately proves that Bonds’ testimony was immaterial and therefore did not satisfy that element. Thus, arguing that the statement was irrelevant would likely be a fatal position for the prosecution.

Thirdly, the defense argues that Bonds was not given sufficient notice of the charge. There was no mention of statement C in the indictment. Since there was no mention of the statement to which the government heavily relies upon, the defense argues the indictment is insufficient. The government argues that since the indictment reads that the evasiveness should be judged on Bonds’ testimony as a whole, then it was not required to explicitly state statement C in the indictment. The attempt to include a “catch-all” provision has the unfortunate side effect of the appearance of desperation by the prosecution. Not specifying a particular statement that can satisfy a charge for obstruction and deciding to rather focus on Bonds’ “testimony as a whole” is the equivalent of asking the finders of fact, “how do you feel about Bonds’ testimony?” One person’s impression of testimony could be significantly different than another’s. More importantly though, how does the accused prepare a proper defense for an indictment that does not state its theory of prosecution?

Bonds’ fourth argument regarding a flawed jury instruction is less compelling and would likely not be found for in favor of the defense. The defense argues that it was the government that used the totality of the testimony to incorporate statement C into the obstruction charge. However, the jury was instructed without any emphasis on the totality of the testimony. Therefore, the defense argues that the jury did not find a conviction on the proper set of guidelines. Specifically, the defense is concerned that the jury reviewed statement C out of context. It is unclear how adding the terms “in totality of the testimony” would alter the context of statement C and the defense does not present how the statement could have been clarified. Therefore, it is doubtful that the fourth argument will be successful on appeal.

The significance of this case faded years ago. Is it in the public interest to prosecute those who lie to investigators? It sure is. But the outcome is no longer important to baseball fans, since Bonds’ grand jury testimony had been leaked. Fans are not subject to a “beyond a reasonable doubt” standard, so it is likely that most have already come to a conclusion regarding whether Bonds used PEDs. Both sides appear to be grasping for the last bits of pride that they can from these proceedings. The government watched as fifteen counts dwindled to five counts before the trial even began. After years of investigation and a substantial amount of money, only one count was successfully brought by the prosecution—the obstruction conviction. At the time that the prosecution’s investigation began, Barry Bonds was at the top of baseball and knew his rightful place as a likely future Hall of Famer. However this investigation has diminished his standing to a place close to baseball irrelevancy. Both sides seem desperate to escape with at least a splinter of success. Barry Bonds may ultimately win this match-up, but both sides will come out a loser.

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The Charges Against Jerry Sandusky

Today, the trial in the case brought by Pennsylvania against former Penn State assistant football coach Jerry Sandusky begins.  In the case, Sandusky is charged with 52 counts of various misdemeanors and felonies against ten alleged victims.

The charges against Sandusky are explained below.  Along with a description of the charge that the prosecution must prove beyond a reasonable doubt at trial, the following also notes against which victims the crimes were allegedly committed and when the crime is alleged to have happened.  The charges are also numbered to give a sense of the vastness of charges at issue in this case.

Involuntary Deviate Sexual Intercourse

In this instance, Sandusky is being charged with the first degree felony of involuntary deviate sexual intercourse.

The prosecution will have to prove that Sandusky engaged in deviate sexual intercourse with a victim under the age of 16, who he was four or more years older than and not married to, or that  Sandusky engaged in deviate sexual intercourse with a victim who was less than 13 years of age.

If Sandusky is found guilty of these charges, he could face a sentence up to 40 years for each charge.

Applies to:

1.  Alleged Victim 1 (June 2007 – September 2008)  – 2 counts

3.  Alleged Victim 2 (February 9, 2001) – 1 count

4.  Alleged Victim 4 (1996-2000) – 3 counts

7.  Alleged Victim 8 (November 2000) – 1 count

8.  Alleged Victim 9 (July 2005 – December 2008) – 2 counts

10.  Alleged Victim 10 (September 1997 – July 1999) – 2 counts

Indecent Assault

Sandusky is also charged with one felony count of indecent assault and eight misdemeanor counts of indecent assault.  The prosecution will have to prove that Sandusky had indecent contact with the complainant, caused the complainant to have indecent contact with the person or intentionally caused the complainant to come into contact with seminal fluid, urine or feces for the purpose of arousing sexual desire in the person or the complainant.  For the misdemeanor charges, the prosecution will have to prove that the alleged victims were under the age of 16, that Sandusky was over four years older than them and that they were not married.

In addition to the elements above, for the felony charge, the prosecution will have to prove that the alleged victim was under the age of 13 and one of the following applies:  the instance in question was a second or subsequent offense, there had been a course of conduct of indecent assault by Sandusky, the indecent assault was committed by touching the alleged victim’s sexual or intimate parts with sexual or intimate parts of Sandusky or the  indecent assault was committed by touching Sandusky’s sexual or intimate parts with the alleged victim’s sexual or intimate parts.

Applies to:

Felony charge

12.  Alleged Victim 1 (June 2007 – September 2008) – 1 count

Misdemeanor charges

13.  Alleged Victim 2 (February 9, 2001) – 1 count

14.  Alleged Victim 3 (July 1999 – December 2001) – 1 count

15.  Alleged Victim 4 (1996 – 2000) – 1 count

16.  Alleged Victim 5 (August 2001) – 1 count

17.  Alleged Victim 6 (May 3, 1998) – 1 count

18.  Alleged Victim 8 (November 2000) – 1 count

19.  Alleged Victim 9 (July 2005 – December 2008) – 1 count

20.  Alleged Victim 10 (September 1997 – July 1999) – 1 count

Criminal Attempt to Commit Indecent Assault

Sandusky is also charged with criminally attempting to commit indecent assault, which is a misdemeanor.  For this charge, the prosecution will have to prove Sandusky had the intent to commit the elements listed above for indecent assault, and took a substantial step toward commissioning that crime.

Applies to:

21.  Alleged Victim 7 (September 1995 – December 1996) – 1 count

Aggravated Indecent Assault

Sandusky is also charged with one felony count of aggravated indecent assault.  For this, the prosecution will have to prove that Sandusky engaged in penetration, however slight, of the genitals or anus of the alleged victim with a part of Sandusky’s body for any purpose other than good faith medical, hygienic or law enforcement procedures.  Additionally, the prosecution will have to prove that the alleged victim was under the age of 13, or that the alleged victim was under the age of 16, Sandusky was four years or more older than him and they were not married.

Applies to:

22.  Alleged Victim 4 (1996 – 2000) – 1 count

Unlawful Contact with Minor

Sandusky is also charged with ten felony counts of unlawful contact with minor.  For these charges, the prosecution must prove that Sandusky was intentionally in contact with a minor (someone under the age of 18) for the purpose of engaging in an activity that is prohibited in Pennsylvania as sexual abuse or a sexual offense, and that Sandusky or the alleged victims were within Pennsylvania.  Under this statute, “contact” means “Direct or indirect contact or communication by any means, method or device, including contact or communication in person or through an agent or agency, through any print medium, the mails, a common carrier or communication common carrier, any electronic communication system and any telecommunications, wire, computer or radio communications device or system.”

Applies to:

23.  Alleged Victim 1 (June 2007 – September 2008 ) – 1 count

24.  Alleged Victim 2 (February 9, 2001) – 1 count

25.  Alleged Victim 3 (July 1999 – December 2001) – 1 count

26.  Alleged Victim 4 (1996 – 2000) – 1 count

27.  Alleged Victim 5 (August 2001) – 1 count

28.  Alleged Victim 6 (May 3, 1998) – 1 count

29.  Alleged Victim 7 (September 1995 – December 1996) – 1 count

30.  Alleged Victim 8 (November 2000) – 1 count

31.  Alleged Victim 9 (July 2005 – December 2008) – 1 count

32.  Alleged Victim 10 (September 1997- July 1999) – 1 count

Corruption of Minors

Sandusky is charged with ten misdemeanor counts of corruption to minors.  For the misdemeanor provision of this statute, the proseuction must prove that Sandusky was over the age of 18, and by an act, corrupted or tended to curroupted the morals of a m inor less than 18 years of age.

Applies to:

33.  Alleged Victim 1 (June 2007 – September 2008) – 1 count

34.  Alleged Victim 2 (February 9, 2001) – 1 count

35.  Alleged Victim 3 (July 1999 – December 2001) – 1 count

36.  Alleged Victim 4 (1996 – 2000) – 1 count

37.  Alleged Victim 5 (August 2001) – 1 count

38.  Alleged Victim 6 (May 3, 1998) – 1 count

39.  Alleged Victim 7 (September 1995 – December 1996) – 1 count

40.  Alleged Victim 8 (November 2000) – 1 count

41.  Alleged Victim 9 – (July 2005 – December 2008) – 1 count

42.  Alleged Victim 10 (September 1997 – July 1999) – 1 count

Endangering Welfare of Children

Finally, Sandusky is charged with ten felony counts of endangering the welfare of children.  To prove these charges, the prosecution must show that Sandusky was supervising the welfare of a child under 18 years of age (meaning that he was a person other than a parent or guardian who provided care, education, training or control of a child) and that he knowingly endangered the welfare of the child by violating a duty of care, protection or support.  Generally, endangering welfare of children is a misdemeanor.  In order to prove that it is a felony in this case, the prosecution must also show that there was a course of conduct of endangering the welfare of a child.

Applies to:

43.  Alleged Victim 1 (June 2007 – September 2008) – 1 count

44.  Alleged Victim 2 (February 9, 2001) – 1 count

45.  Alleged Victim 3 (July 1999 – December 2001) – 1 count

46.  Alleged Victim 4 (1996 – 2000) – 1 count

47.  Alleged Victim 5 (August 2001) – 1 count

48.  Alleged Victim 6 (May 3, 1998) – 1 count

49.  Alleged Victim 7 (September 1995 – December 1996) – 1 count

50.  Alleged Victim 8 (November 2000) – 1 count

51.  Alleged Victim 9 (July 2005 – December 2008) – 1 count

52.  Alleged Victim 10 (September 1997 – July 1999) – 1 count

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Second Swing: Roger Clemens’ Re-Trial

Nine months ago, after the prosecution had only put two witnesses on the stand, the judge in the case against former MLB pitcher Roger Clemens, declared a mistrial.  This mistrial stemmed from a procedural error committed by the prosecution, who showed a video referencing testimony by Andy Pettitte’s wife, which was previously ruled inadmissible.

Today marks the start of the prosecution’s second trial against Clemens.  Clemens faces six charges:  one count of obstruction of Congress, three counts of false statements and two counts of perjury.  While nine months is not an eternity, much has happened over the last nine months which may affect the outcome of Clemens’ trial.

First and foremost, the prosecution has arguably been given a procedural advantage in being able to try the case for a second time.  Although the prosecution was only able to present two witnesses in its first go-around at trying Clemens before a mistrial was declared, it arguably obtained a sense of the strength of its case in presenting those two witnesses.  While Judge Walton commented that not even a first year law student would make the procedural error that the prosecution made in the first trial, it appears that the prosecution refuses to make such an error in the second trial.  This is demonstrated by the fact that the prosecution has added three additional lawyers to its case.  Arguably, these lawyers will serve to protect against procedural errors, while also providing more detailed analysis and investigation into the case.

Additionally, because the prosecution was allowed to retry the case, it was essentially given an additional nine months to build its case.  During this time, it was allowed and able to conduct additional interviews with witnesses and re-examine evidence.  While this may seem unimportant, one of the greatest gifts a trial lawyer can be given, is time.  Trials take an extensive amount of time to prepare.  Under the pressure of presenting a trial and upholding a defendant’s constitutional right to a speedy trial, sometimes sacrifices must be made in fully developing a case.  Thus, when an additional nine months is granted to prepare for a trial, it can greatly benefit the prosecution.

While there are definitely some factors that favor the prosecution going forward with the second trial against Clemens, the defense also has some windfalls in the second trial.

First and foremost is the fact that jurors may be largely displeased by the fact that the government is retrying the case against Clemens, which some believe should not have even been tried in the first place.  Recently, a report surfaced indicating that jurors approached Judge Walton after the first trial to indicate that they believed trying Clemens the first time was a waste of taxpayer money.  Given this belief by some jurors, along with the fact that the prosecution caused a mistrial in the first trial after only two witnesses had been presented, the defense could gain the favor of the jury if it presents a compelling argument as to why prosecuting Clemens is a waste of taxpayer money.  This argument will likely play out better this time around, as now, Clemens is being tried in a presidential election year.  If Clemens’ legal team can tap into the political climate and the jury’s economic sentiments to make them feel that there are bigger issues for the government to be concerned with than whether a retired baseball player lied to Congress six years ago, any arguments made by the prosecution may be nullified in the jury’s mind.

The next big windfall the defense has received over the last nine months centers around another big MLB storyline.  Since Clemens’ mistrial in July 2011, Ryan Braun became the first MLB player to have a suspension for alleged performance enhancing drug use overturned.  A three-person panel overturned Braun’s suspension in February after it found problems with the chain-of-custody of his urine sample.

In Clemens’ first trial, it was expected that his defense would largely question the chain-of-custody of some of the prosecution’s physical evidence.  Reportedly, the prosecution’s physical evidence includes syringes that Clemens’ former trainer alleges that he used to shoot Clemens with performance enhancing drugs.  If these syringes are in fact those that were used to allegedly shoot Clemens with performance enhancing drugs, that means that Clemens’ former trainer held onto the syringes for a period of years.  The former trainer reportedly kept the syringes in a soda can and a FedEx box.

Given the expansive reporting of Braun’s successful appeal based upon a chain-of-custody theory, the possibility that evidence can be tainted if it is not properly handled is at the forefront of the public’s mind now more so than it was in July 2011.  Thus, Clemens’ legal team will likely parlay Braun’s success using this theory into Clemens’ case.  As such, expect significant cross-examination of Clemens’ former trainer into why he saved the syringes, how he handled them and the possibility that others may have had access to them over the years.

Ultimately, both sides have more to lose than gain at the end of this trial.  If the prosecution fails to prove its case, the American public will cry foul over the extensive amount of money the government spent to unsuccessfully prosecute a former MLB twice.  If Clemens loses, he will likely face a jail sentence.  Yet, even if he wins, his image has arguably already been tarnished in the public’s eye.

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Bounty Gate: The Potential Legal Ramifications of the New Orleans Saints’ Bounty Program (Part 2)

In the midst of a bustling off-season, during which the Saints are busy attempting to improve their team through free agency and preparing to host the 2013 Super Bowl, news of the Bounty Gate scandal has shaken the team.  While the Saints, other NFL teams and football fans alike patiently wait to see how the NFL will penalize the team for its alleged involvement in a bounty program, the legal ramifications of the program must also be considered.  Yesterday, described what legal ramifications Saints players who injured opponents as a result of participating in the bounty program may face.  Today, will target the legal ramifications that Saints coaches and the Saints as an organization could face as a result of the existence of the bounty program.

As discussed yesterday, legal action against Saints players resulting from their alleged participation in the bounty program would largely fall into two categories:  tort actions and criminal actions.  These two areas of law would also shape the potential legal action that the Saints and its coaches may face.

Coaching Staff

In the criminal realm, members of the Saints’ coaching staff could face conspiracy charges.  A conspiracy exists when there is an agreement between two or more persons who have an intent to enter into the agreement and intend to achieve the unlawful purpose of the agreement.

If reports are accurate, in this instance, there was an agreement between two or more persons–namely, Saints assistant coach Gregg Williams and 26 to 27 defensive Saints players.  This agreement was one in which in exchange for a specified compensation, the players would attempt to carry out plays on the field with the intent of removing opposing players from the game.  Furthermore, it is arguable that both sides intended to enter into the agreement, as specific payouts were delineated for specific performances.  Finally, both sides arguably intended to achieve the agreement’s unlawful purpose.  Here, as described yesterday, the unlawful purpose would be committing assault and battery on opposing teams’ players.  The parties arguably intended to commit assault and battery on opposing teams’ players, because there allegedly was a pool of money that was distributed to players if they made plays which caused opposing teams’ players to leave games with injuries.

Thus, it is possible that a criminal prosecutor could bring conspiracy charges against coaches and players who agreed to participate in the bounty program.  The likelihood, however, of a criminal prosecutor bringing these charges is fairly slim.  First, because the NFL has its own sanctions, a prosecutor would likely be unmotivated to use taxpayer dollars to prosecute the case.  Additionally, the statute of limitations for bringing a charge of conspiracy may have expired.  Depending upon whether the charge would be brought as a misdemeanor or felony, the statute of limitations for conspiracy in Louisiana is either two or four years.

Saints Organization

The Saints organization could also face legal ramifications as a result of the existence of the bounty program.  The Saints’ legal liability would largely fall into the realm of tort law.

Here, the Saints would be seen as the employer of the various coaches and players allegedly involved in the bounty program.  A legal theory called “respondeat superior” essentially holds employers liable for torts committed by employees within the scope of their employment.

The issue within this instance, is whether the actions allegedly committed by some Saints players and coaches through their participation in the bounty program fell within the scope of their employment.  The Saints organization would argue that the bounty program was outside the scope of employment, since the NFL as an organization prohibits bounties.  Thus, because such behavior is prohibited by the NFL, the Saints would argue that it inherently could not be considered part of participating coaches and players’ employment.

However, case law exists which states that prohibition of certain actions does not necessarily remove conduct from the scope of employment.  Additionally, while intentional torts (like the assault and battery, which are at issue here) are not normally considered to be within the scope of an employee’s employment, certain factors could nonetheless make an employer liable for its employee’s intentional torts.  For instance, where the nature of work gives rise to hostilities (as is such in the NFL), where force is authorized in the type of employment (as is such in the NFL) or where an employee is promoting an employer’s business (as was arguably the case here, as the participating members were likely trying to prove the team’s performance), then an employer can be held liable for the torts of its employees.   

Finally, tort action could be brought against the Saints as an organization by arguing that the organization ratified the actions of the alleged participants of the bounty program.  To ratify tortious behavior, an employer must know of all of the material facts related to the tortious conduct.  Per reports, there are indications that members of the Saints organization allegedly knew of the existence of the bounty program and did not fully stop the program.  Thus, such action arguably amounted to ratifying the intentional torts being committed through the bounty program.  As such, it is possible that the Saints organization could face causes of action brought in tort.

However, as with the other potential legal ramifications stemming from the alleged bounty program, the statute of limitations may also prevent bringing actions in this regard.

Furthermore, other procedural and evidentiary issues will likely limit the bringing of lawsuits as a result of the existence of the alleged bounty program.  First, a significant amount of money would need to be spent discovering evidence which could be used to prove that opposing teams’ players were intentionally injured, outside the course of the normal roughness of NFL football, as a result of the bounty program’s existence.

Regardless, the possibility for new legal precedent exists as a result of this groundbreaking allegation that players and coaches participated in a bounty program.


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Bounty Gate: The Potential Legal Ramifications of the New Orleans Saints’ Bounty Program (Part 1)

Last week, the NFL released information related to its finding that the New Orleans Saints instituted a bounty program during the 2009-2011 seasons.  The program, which was allegedly administrated by former Saints’ defensive coordinator, Gregg Williams, paid defensive players for executing plays aimed at injuring opposing teams’ players. 

The alleged actions undertaken by members of the New Orleans Saints in 2009-2011 are strictly prohibited by the NFL.  The NFL prohibits “payouts for specific performances in a game. . .,” even if the performance is one which does not injure a fellow player.  According to NFL Commissioner Roger Goodell, the NFL rule against bounties “. . . promotes two key elements of NFL football:  player safety and competitive integrity.” 

Given that the NFL’s investigation showed that members of the Saints engaged in an illegal bounty program, what legal ramifications could the Saints’ players and the Saints face?  Today’s post focuses upon the legal ramifications that Saints’ players which participated in the bounty program and intentionally injured competitors may face.  Tomorrow’s post will consider what legal action the Saints as an organization may face.

The most significant causes of action which may be brought against players who participated in the Saints’ bounty program fall under the realms of tort law and criminal law. 

Tort law exists under common law, meaning that the rules which govern tort law are not created by statutes, but through case law.  Torts against the person fall under two categories:  intentional torts and negligence.

In law school, most students are taught that if a football player sustains an injury on the field while playing, it most likely is not actionable as an intentional tort.  This is because typically, if a football player sustains an injury as a result of contact with another player, it was the result of negligence.  At the simplest level, that means that the injured player typically was not injured as a result of an intentional act of the opposing player.  In torts, there is a defense to negligence causes of action called “assumption of the risk.”  Applied to a football game, assumption of the risk means that the football player knew of the risk of being injured while playing football, yet voluntarily stepped onto the field to play in the face of the risk.  The existence of the assumption of risk defense, greatly limits a football player’s ability to recover for injuries sustained on the field. 

However, the 1979 10th Circuit case of Hackbart v. Cincinnati Bengals, Inc (601 F.2d 516 (10th 1979)) demonstrated that an injured NFL player could successfully bring a tort cause of action against an opposing player and that player’s team as a result of injuries sustained in a football game.  Namely, the 10th Circuit found that Hackbart had the right to argue at trial that the actions committed against him by Cincinnati Bengals’ player Charles “Booby” Clark amounted to intentional torts.

Hackbart was brought after a 1973 game between the Denver Broncos and Cincinnati Bengals, where Bengals’ player Booby Clark struck Broncos’ defensive back Dale Hackbart in the head and neck with his forearm, while Hackbart was on the ground.  The trial court found that Clark’s actions were the result of him “acting out of anger and frustration, but without a specific intent to injure. . .” Hackbart.

Nonetheless, the appellate court in Hackbart found that Hackbart had the right to have the case tried to decide whether Clark’s actions amounted to an intentional tort, upon which Hackbart could recover damages.  Given this finding by the 10th Circuit, it is likely that players, against whom the Saints’ bounty program was executed, could seek similar legal relief under tort causes of action.

If players who were the victims of injuries sustained at the hands of the Saints’ bounty program were to bring legal action under tort causes of action, they would most likely bring causes of action for assault and battery.  Assault is defined as “a reasonable apprehension by a plaintiff of immediate harmful or offensive contact with his person.”  Battery is a harmful or offensive contact with a plaintiff’s person by a defendant without consent. 

In football, players consent to contact with other players, which elsewhere would be considered harmful or offensive.  For instance, an average citizen would not consent to being tackled on the sidewalk. Thus, if someone tackled them on the sidewalk, they would have a cause of action for battery.  However, NFL players’ consent to being tackled during games is what largely prevents players from bringing lawsuits for battery claims as a result of most NFL plays. 

However, NFL players do not consent to contact which is outside the realm of the standard NFL contact.  Thus, NFL players do not consent to being intentionally injured by their competitors.  Therefore, victims of the Saints’ bounty program would arguably have causes of action based in tort for assault and battery.

As noted above, tort law is based in common law.  Some states’ criminal statutes outlaw assault and battery.  As such, it is possible that the alleged perpetrators of the Saints’ bounty program could be subject to criminal sanctions.  These charges would have to be pursued by local prosecutors.  Given the time and resources involved in prosecuting cases, along with the NFL’s internal sanctioning system, it is possible that such causes of action will not be prosecuted.

The issue with assault and battery actions, if brought in Louisiana, is that the statute of limitations may have run.  In Louisiana, the statute of limitations for a civil cause of action for assault and battery (tort actions), is two years.  Criminal causes of action for assault and battery have a two or four year statute of limitations.  If a player was injured in 2009, it is possible that the statute of limitations expired.  However, a player could argue that the statute should be tolled, since facts demonstrating that the actions were intentional were not known until recently.  Nonetheless, the statute of limitations will likely hinder victims of the alleged bounty program from bringing lawsuits.

Visit tomorrow to learn what legal ramifications the Saints organization and its coaches may face as a result of the alleged bounty program.


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Why Jerry Sandusky Would Waive His Preliminary Hearing

On December 13, 2011, former Penn State assistant football coach, Jerry Sandusky, waived a preliminary hearing in the case brought against him by prosecutors of more than 50 counts of sexual abuse against boys.  The waiver of this hearing will move the case forward to trial.

So, what is a preliminary hearing and why might a defendant waive it?

A preliminary hearing is a pre-trial proceeding wherein the government must prove that they have probable cause to bring the charges they are bringing against the defendant.  Probable cause is a relatively low legal threshold, which essentially requires that the prosecution demonstrate that there exists trustworthy facts or knowledge sufficient for a reasonable person to believe that the suspect has committed or is committing a crime.

Today, the prosecution was prepared to present at least ten men who have come forward and accused Sandusky of sexually abusing them.  Arguably, if these young men shared the allegations that they shared with the grand jury which ultimately moved to indict Sandusky, the threshold of probable cause would have been met.  Because the threshold of probable cause would have been met during the preliminary hearing, the case would then be set for trial.  Sandusky’s legal counsel likely advised him that the probable cause threshold would be met.  Otherwise, it would not have been legally sound to waive the hearing, since if the probable cause threshold was not met, then the case against Sandusky would’ve been dismissed.

By waiving the preliminary hearing, what Sandusky’s defense did was effectively take away an opportunity for these men to rehash their allegations of sexual abuse by Sandusky in an open courtroom.  Typically, preliminary hearings are open to the public and the press.  Such was the case with today’s preliminary hearing, and reports indicate that there were hundreds present in the courtroom, with many of those individuals being members of the press.

Since members of the press were present in the courtroom, they would have reported what the alleged victims would have said in open court during the preliminary hearing.  Arguably, these statements would have expounded upon what was presented in the grand jury report against Sandusky.  In such a highly publicized case, Sandusky’s defense arguably did not want more allegations to spring forward as a result of the preliminary hearing, and arguably, taint a potential jury even more against his client.  However, by waiving the hearing, Sandusky’s attorney lost an opportunity to actually hear the accuser’s stories and witness their demeanor on the witness stand.  Such things are arguably beneficial in moving forward with preparing for trial.

Nonetheless, at the end of the day, Sandusky arguably decided to waive his right to a preliminary hearing due to legal maneuvering which was advised to him by his attorney.


Filed under Criminal Law, NCAA