At the risk of confirming I do have a life outside my six or seven day work week as a state and federal criminal defense lawyer in Boston, I admit it; I am a longtime, unabashed, New England Patriots fan; indeed, a rabid one. As such, I have been deeply disappointed to see two hard-fought/well-earned Pats playoff victories tarnished, and seemingly tainted, by the so-called "Deflate-gate" controversy. At the same time, I have been both stunned, and amazed, by the incredible rush to judgment about who had to have known what/when about the use of purportedly deliberately deflated footballs during the first half of the Patriots' impressive 45 - 7 thumping of the Indianapolis Colts last weekend. Likewise, the damned if you do, demonized if you don't responses to explanations now forthcoming (the latest from Head Coach Bill Belichick) strike me as hypocritical, agenda-driven and over-exaggerated. Yes, I abhor cheating and yes, I believe there is a right way of doing things that isn't always synonymous with the "Patriot way." Still, the crescendo of suspicion, criticism, innuendo, and dare I say "crucifixion" of coach Belichick, and the Patriots brand, is not only the paradigm of punishment unbefitting the so-called "crime" (see Aaron Rodgers and other current and former NFL QB's comments about routine football manipulation), but also why our criminal justice system, and the fundamental concepts on which it stands, truly is second to none.
If Deflate-gate were a trial in the criminal courts, as opposed to the court of public opinion and/or possibly before embattled NFL Commissioner, i.e., judge, jury and executioner, Roger Goodell, the central and most important governing tenet would be the presumption of innocence. Next to that stands the (prosecution's) burden of proof to establish the accused's guilt beyond a reasonable doubt. And completing the sancrosanct triumvirate of our criminal justice fundamentals is the premise that any accused has the right to be judged by a fair, impartial, and unbiased jury of his or her peers (as lawyers in the Dzhokhar Tsarnaev Marathon Bombing case are endeavoring to find). Beyond these are myriad "guardians at the gate," including the general proposition that evidence of other past acts or crimes may not be used to establish the accused acted in conformity therewith, or is guilty therefrom, as well as the right of an accused to confront (and cross-examine) any/all witnesses presenting evidence against him and not be subjected to anonymous or vague innuendo and/or attribution. Also, with moderate exception, such as joint venture/joint enterprise criminal liability and conspiracy, our criminal justice system doesn't permit finding guilt by association. Instead, it requires proof beyond a reasonable doubt of knowing, willful, intentional and/or reckless acts/conduct by anyone accused of most common offenses.
I know football is only a game. I also know no one is going to prison here; and of course, I know that in civil court the standard for liability is the lower threshold/easier to prove preponderance of the evidence (i.e., more likely than not). I also know I am risking being labeled a complete "homer" or ultimate "Patriots Fanboy" (I'm not; I have never bought into the "In Bill We Trust" hooded genius ethos). Still, accusations of cheating and dishonesty are nothing to take lightly. They are often at the core of many of the criminal cases I'm called on to defend daily, from wire and mail fraud to theft, embezzlement, larceny, or tax, bank and mortgage fraud. Whether in criminal court, or the court of public opinion, accusations regarding dishonesty can have long-lasting and consequential impact on one's life, livelihood, and legacy, regardless of whether or not one's actual liberty interests (jail time) were ever at stake. Reputation matters, and I'm not the first Deflate-gate commentator who immediately thought of former Secretary of Labor (to President Reagan) Raymond Donovan, who famously said in 1987 after being acquitted of fraud and grand larceny charges in Bronx County Supreme Court, "Which office do I go to get my reputation back?"
Why shouldn't the same applications we hold so dear, and protect so zealously each day in court as criminal defense attorneys, also apply to a coach with the most playoff wins in NFL history, 40 years of contributions to the sport of football, and one of the most impressive W-L records in NFL history? Like anyone accused of wrongdoing, he should be entitled to the same presumption of innocence until proven guilty beyond a reasonable doubt. In a criminal court, the fact he was found responsible for videotaping other teams' (e.g., the Jets) defensive signals in the past may not be considered as proof he deliberately participated in deflating 11 of 12 pre-designated Patriots' footballs on January 18, 2015 (and please don't counter with any 404b and/or character impeachment guff; it's this admitted fan's blog, and like I said, I do have a life outside the courtroom). That "anonymous sources" are leaking that it has been determined that footballs were deflated is not competent proof of anything; that Belichick cannot be responsible for something he did not do knowingly, willfully, intentionally or recklessly — indeed, which he says he didn't do at all (another central precept - there must be actus reus, too); and that he should not be judged by competitors, sore-loser opponents, or agenda-driven/story flagging media types who on one day demand his head "if he did know about this," in complete disregard of yet another fundamental right - to remain silent, while blathering away about, "If he's innocent, why isn't he saying anything?", but the next day demand his job when he says he didn't — All I can say to that is "some fair and impartial jurors they would make!"
I don't like to force analogies, and there's a substantial difference between a highly compensated professional football coach/GM facing fines/draft pick losses as a result of rules violation(s) and the folks I deal with daily who face months or years of incarceration in state or federal prison, long-term post-release supervision, and a variety of other life-altering and incapacitating conditions based on the allegations they may be facing. There's also an argument that the civil preponderance of evidence standard is indeed more apt for a matter like this. But once again citing poor Secretary Donovan, I reply, there's a reason why we do what we do and how we do it in the criminal justice system. It's to make sure we get it right when accusations also go to the very heart of someone's character. True, there are imperfections, but put me down as one who believes that even to its fiercest critics, and paraphrasing Winston Churchill, our criminal justice system may be the worst form of justice, except for all those other forms that have been tried from time to time. While you're at it, also put me down as someone who believes the Court of Public Opinion shows exactly why Deflate-gate or any accusation of wrongdoing is far better played-out not just in a neutral arena, but also on a level playing field.