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Process Matters; Just Ask Tom Brady and the NFL

What many have dubbed a controversial ruling when federal judge, Richard Berman, vacated the four-game suspension that the NFL had handed down against Tom Brady for his “general” knowledge of deflation of footballs should be seen as a victory for process. Popular opinion seems to indicate that Tom Brady’s money bought him this verdict. Ironically, Tom Brady never brought suit. Attorneys for the union appealed the NFL’s four-game punishment, yes. But the lawsuit that today vacated his suspension was the result of the NFL filing suit in New York in hopes of obtaining a ruling that determined the four-game suspension was proper. The NFL filed in New York as an offensive move and in a location that commentators have posited the NFL handpicked to get a favorable ruling. The irony continues in that days before Judge Berman ruled, he encouraged the parties to come to an agreement; no resolution could be reached. And then Judge Berman ruled that because the NFL had systematically violated its own procedures and processes that the system required, Tom Brady’s four-game suspension could not stand.

Popular sentiment cares little about process. In their collective minds, if the person “did it,” if the accused person is “guilty,” then what does it matter if his attorneys were able to cross-examine the witnesses? If the person committed a wrong, then what does it matter that he was not fairly noticed that his behavior could get him into that kind of trouble? In the overall scheme, the populous does not care if the rule of law is ignored, if the process was fair, just so long as what they believe to be the “right” result happens. That is, until someone they know or love (or even forbid that person himself) is the one with the entire weight of the system against them. Then, suddenly, it is okay that a “legal loophole” could free them.

What I wish to impress upon those who would ignore the faults in the procedure is that without process, the system means absolutely nothing.

I grow tired and weary of those who believe that if the evidence indicates guilt, then why should anyone be bothered with ensuring that proper processes and procedures are adhered to. Suddenly prosecutors become zealots, trying to steamroll the accused despite insistence by the defense that additional time is needed, discovery has not been turned over, and the process is being violated. In a recent case that is ongoing in litigation, I received a government motion that included language that encapsulated this attitude in the most succinct manner; and if it were not so scary it would be humorous. This prosecutor’s motion sought to preclude the defense from cross-examining the government’s most central witness about the many times the witness had lied before to law enforcement and to the prosecutor; lies that we and they could prove. In an effort to ask the military judge to rule that the defense could not go after the witness for the witness’ prior lies, the prosecutor wrote, “as is often the case when prosecution facts are irrefutable, a good defense attorney is often relegated to attempting to shoot the messenger.” Well, my goodness, then why have a trial at all?! I mean, if the prosecution facts are irrefutable, why is the accused permitted to plead not guilty and place the burden of proof upon the government to prove his guilt beyond a reasonable doubt!? The military judge ruled we get to cross-examine on the witness’ prior lies, which are of course always relevant and always admissible, much to the surprise and dismay of the prosecuting attorney.

What becomes most concerning is that the popular opinion that when the government “knows” that the accused “did it” and they have “irrefutable evidence” of that guilt, is the counsel who cuts corners, the counsel that railroads, the counsel that withholds evidence, and the counsel that argues against what is fair and just.

In a recent court opinion from the military’s highest court, a message similar to the one sent in Judge Berman’s ruling that process matters, resulted in upholding the trial judge’s just yet courageous decision that dismissed a case with prejudice against a man accused of sexual abuse of a child. [Note: A ruling that a case is dismissed with prejudice means that it can never be brought again, ever; it is the most serious sanction ever to be imposed against the government and it does not happen often.] In his ruling, the military judge, LTC Tim Hayes considered all other less harsh penalties against the government but decided none other was sufficient to cleanse the process of the military prosecutor’s discovery violations. The trial prosecutor systematically tinkered with the process in what can only be seen as efforts to deny the accused a fair trial. Among his ills was being aware that a “box of evidence” was being held by the mother of the child accuser; when she tried to give the “box of evidence” to the prosecutor, he told the mother to just hold onto it because anything she gave him, he would have to turn over to the defense. Let that wash over you for a moment. Included in that box was evidence that the child had previously recanted.

I applaud LTC Hayes and I applaud Judge Berman for upholding the rule of law. Without it, the system is left to the individual judgments of those whom have already concluded guilt and are guided only by those conclusions. They care not about procedure, they care not about process; they care only about winning. And when the system is left to those whose sole aim is victory, we all have much to worry.

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