Guilty of ‘Theoretical’ Crime?
If Tom Brady did order two locker-room assistants to deflate footballs illegally, he should confess and take the harsh punishment meted out by the NFL. But if he’s innocent, he and the New England Patriots should fight the ruling because it sets a dangerous precedent for everyone who might fall under this concept of a theoretical crime based on “more probable than not” logic.
In this case of Deflategate, it’s not even clear that an offense occurred. NFL outside counsel Ted Wells struggled to get the odds over 50 percent that the footballs were intentionally deflated, even tossing in non-probative “gotcha” moments like the fact that one equipment assistant said he used a “urinal” in a small bathroom when Wells – playing a daffy Sherlock Holmes – noted that there was only a toilet in the room.
As with much of Wells’s report, innocent explanations for common events were rejected in a style that is more common in wild-eyed conspiracy theories than in a serious investigation that affects a person’s reputation and the future of a significant business in New England.
That Jim McNally, the assistant, might not have remembered something as mundane as whether he urinated in a urinal or a toilet was apparently not accepted by Wells, nor the logic that whatever McNally was doing in the bathroom – urinating or deflating footballs – he would have seen the toilet, so his misidentifying it is meaningless.
In my decades as an investigative journalist reading and evaluating many official reports, I have noted that when lawyers start including details like McNally saying “urinal” instead of toilet, they realize how weak their case is and are putting everything they can dig up on their side of the scales.
Similarly, Wells makes a big deal out of Brady signing memorabilia for the other locker room assistant, John Jastremski, though it’s a common practice for players to show their appreciation for the often under-paid locker room helpers who take care of the players day to day. But what would normally be regarded as an innocent, appreciative act is transformed into a sinister payoff. Whatever it takes to get over the “more probable than not” threshold.
As Wells explains, the NFL operates not with a courtroom criminal standard of presumption of innocence requiring proof beyond a reasonable doubt, but rather a much less stringent “more probable than not” standard. However, even by that lax measure, Brady should not have been punished because what Wells actually does is allege a 51 percent chance that footballs were deflated and, if it happened, a 51 percent chance that Brady knew something about it. So, in regards to Brady, that’s not a 51 percent likelihood of guilt but a 26 percent chance.
Wells concludes that in the AFC Championship game on Jan. 18, “it is more probable than not” that McNally and Jastremski “participated in a deliberate effort to release air from Patriots game balls after the balls were examined by the referee.” Wells then adds that “it also is our view that it is more probable than not that Tom Brady … was at least generally aware of the inappropriate activities of McNally and Jastremski involving the release of air from Patriots game balls.”
So, there are two calculations here: one is whether anything happened, and two, if something did happen, whether Brady “was at least generally aware” of what happened. In other words, one-half of one-half, or barely a one-quarter chance, thus not meeting the “more probable than not” standard that the NFL uses for disciplinary purposes regarding Brady.
Note, too, the phrase “generally aware.” What does that mean in any legal sense? People are normally prosecuted or punished for ordering that a crime is committed or participating in a conspiracy to commit the crime. But Wells knew his case was flimsy – lacking any conclusive evidence, such as a confession, an eyewitness or video of the illegal act – so he reached for elastic language to establish some basis for punishment.
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