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JANUARY 15, 2008

No arrests, no indictments?

With all of the “evidence” against various baseball players, I can’t imagine why the average person isn’t asking themselves “why have there been no arrests?”.

One theory is  that the Department of Justice didn't prosecute players because the evidence against them was incredibly weak. That theory, although totally true, is not the whole story. But let me state this again, and say that the “evidence” in the Mitchell Report is of the “He said/ She said” variety).

Some have speculated that if the Mitchell report is, in fact,  accurate, the government has enough evidence to pursue possession cases against several players…  based on some kind of evidence (dealer testimony, shipment and payment records, etc…). Except that people are overlooking one simple fact…there is no actual possession in these possession cases. There is a smoking gun, but no bullet. Clemens et al. were not found in possession of…ANYTHING!

Kind of hard to argue murder without a dead body, isn’t it?

Don’t get me wrong, you or I would be in jail already, trying to cop a guilty plea and do minimal prison time, if it were us. The government’s advantage in this type of case is that they have the resources and time to just pound the average person into a plea deal (percentage of times the Feds win when a case goes to trial: 98%+). But these ball players have the money and resources to just keep hiring lawyers and fighting the case.

The best defense is money.

If the glove doesn’t fit, you must acquit.

But given the various charges here, a semi-plausible case could even be made for conspiracy charges against some players. Conspiracy is ridiculously easy to prove, and incredibly difficult to actually figure out what it entails.

As an example, you and I can talk about me robbing a bank in the future, and that’s alright…but if you lend me $3 to buy a ski mask, then you’re guilty of conspiracy – even if I don’t ever get around to robbing the bank!

One thing that actually surprises me about all of this was the conduct of the investigators…prosecutors seemed to ignore what is legally considered permissible conduct in their treatment of players they did not ultimately charge. And need I remind anyone that McAmee admitted to several felonies without ever having cut a deal with anyone to avoid prosecution – and was never charged!

Although both police and prosecutors have certain unique powers to investigate and prosecute the crime, the use of the government's criminal powers for other cleaning up baseball—always seems to skirt the boundries of acceptable conduct. If they aren’t charging Clemens, then why drag him through the mud? For the rest of his life, his 7 Cy Young awards will be in question, and his achievements tarnished.

If he isn’t found to have actually done anything wrong, that cloud will hang over him forever – just ask Lance Armstrong.

And since when does a report issued from the private sector carry any weight with Congress – or seem to be not responsible for libel?
Why is Clemens going on the offensive? Because there’s no real recourse he has…he’s been attacked in the court of public opinion by Mitchell, who can now run and hide without persecution or prosecution.

I think I should remind everyone that federal grand jury proceedings are secret – but in the case of baseball, they are leaked faster than Britney Spears cooch-photos.

This is done, ostensibly, to protect the reputations of those who are investigated and not prosecuted. And, Department of Justice proceedings like this are often sealed, and have been even more sensitive to these kinds of interests and privacy concerns. In fact, Department of Justice policy is to "remain sensitive to the privacy and reputation interests of uncharged third-parties," meaning, that without proper reason, they ought not identify … or even cause a defendant to identify, a third-party wrongdoer unless that party has been officially charged with the misconduct at issue.

(This legal explanation and interpretation is not mine, but rather comes from Frank Bowman, writing in his Jurisprudence column)

If we’re asking Major League Baseball players to follow the rules, shouldn’t we first ask Congress and the Department of Justice to set the example?



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