Balls, Strikes and Legal Standards

In all the commentary about the Mitchell Report, one point bears repeating: As a report from one private party to another, it need not rely on the "reasonable doubt" standard used in criminal cases or even the "preponderance of the evidence" test used in civil cases.

"Due process under law" is a constitutional right guaranteed to us only when it's the government doing the investigating and prosecuting. None of the players listed will be losing life or liberty as a result of Mitchell's findings.

In their attempt yesterday to place the report in proper legal context, the sports journalists on ESPN focused on (and when I write "focused upon" I really mean "whined about") the "level of proof" that former Senate Majority Leader George Mitchell and his lawyers and investigators had applied in determining which names to include in the report about baseball's alleged cheaters, past and present. If you didn't know better, you might have thought that those listed in the report were about to be arrested and sent to the brig.

What a farce.

No one talked about how the "presumption of innocence" is in many ways endangered in the legal world: Not every defendant who goes to court is presumed innocent. Not every person who stands behind the Fifth Amendment's guarantee against self-incrimination ends up being better off for it. Not every case built upon circumstantial evidence offered by an informant is unreliable. But you wouldn't have known this by watching ESPN.

The Mitchell Report may have been thorough, but it is far from complete. Mitchell had no subpoena power to compel testimony, and the vast majority of players asked to cooperate did not. There are holes in the narrative -- Sammy Sosa and Mark McGwire, for example, aren't even named -- because of the legal and practical limitations placed upon investigators. Still, there are reams of "exhibits" attached to the document and plenty of supporting documents -- like canceled checks -- to back up the allegations made by the two main witnesses Mitchell and his subordinates were able to muster up.

Would this hold up in court in a criminal case? Probably not. Should that matter? Absolutely not. It's apples and oranges. And to suggest that the players were unfairly railroaded or "outed" as suspected cheaters is an affront to Mitchell's integrity. Does anyone really think Mitchell would have added names to that list that he didn't believe belonged there?

Two worlds were on display yesterday. In the world of baseball, commentators and former players all talked to one another about the Mitchell Report. And if you, like me, are not part of that special clique you easily could have felt, as I did, that I was eavesdropping upon a family conversation -- a grand, choreographed apologia for and on behalf of baseball.

In the other world, the world beyond baseball, matters are more clear. Many baseball players cheated. Some got caught. Few assisted with an important investigation, yet many later complained when that investigation was not entirely complete. And none certainly have a right to complain today about the way their past conduct is being judged.

By Andrew Cohen |  December 14, 2007; 7:21 AM ET
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I agree 100% with the last paragraph. The players themselves are to be blame, since...they refuse to co-operate in this probe. They had a remarkable opportunity to shed lights into this mess...instead...they acted like crybabies.

What a shame. What a shame.

Posted by: Washibngton, dc | December 14, 2007 12:04 PM

There's little new in the Mitchell Report about "the problem." The only surprises were some of the names such as Roger Clemens, Andy Petite and Chuck Knoblauch.

It's been known by anybody with more than a passing interest in Baseball since at least Jim Bouton wrote Ball Four in 1969 and it's successor, I'm Glad You Didn't Take It Personally! (Interestingly, I didn't see Bouton cited in any of the 585 footnotes or in Appendix C) Sen. Mitchell approached it as if it all began aorund 1984, when there hadn't drug issues (amphetamines, if not steroids) for decades before that.

The players are to blame, the owners are to blame, the sports media are to blame and the fans are to blame (see San Francisco and Bonds, and Cincinnati and Rose for examples why). Given the history of labor/management relations in baseball, the MLBPA and the players were smart to not just go in and "fess up." Be aware that, A) Sen. Mitchell currently sits on the Board of Directors of one Major League team, and B) he was Chairman of the Board of a corporation which owned another Major League. And while he blamed everybody, Management got off extremely lightly given what they've known has been going on for at least four decades and probably longer.

I were a player would I want to bare my soul to an investigator appointed by the head of Management? No way! I don't blame the players at all.

Being a former U.S. Attorney and Federal District Judge, Sen. Mitchell knew exactly what he was doing legally, so the complaints should be minimal. But, this really isn't about the Law, it's about contracts and endorsements and reputations and history and legacies and getting into the Hall of Fame, and everybody involved making a ton of money.

In my opinion, Sen. Mitchell and Commisioner Selig did about as much as anybody could reasonably expect without turning The Game inside out.

Don Fehr needs to work with Commissioner Selig, and MLB needs to work with the MLBPA in reaching common ground to ensure that the game becomes and remains clean when it comes to performance enhancement substances. The players are human and do have rights. The process should be squeaky clean. Not like the Olympics and other international sports with Dick Pound and the drug facists, who act as investigator, judge and jury with testing processes that have holes like a sieve.

The Mitchell Report turns a page and closes a chapter. Time to begin the new chapter; and make it a model for other sports.

Posted by: DC | December 14, 2007 01:13 PM

No- The players are the ones who are taking the drugs-not the owners nor the fans nor anyone eles.

The players union for years fought like hell to do nothing about this problem, e.g. evrytime MLB wanted to start testings, the UNion said "NO". And now, those players who are crying "foul"-e.g.Clemons, etc.etc. were the same ones who had chances to assist Sen. Mitchell-they refuse.

Again-a bunch of crybabies.

Instaed of doing the correct things...they are behaviing like crybabies after the report is release.

Posted by: Washington,dc | December 14, 2007 02:50 PM

Washingtion,dc Has MLB ever investigated or sanctioned a club or its officials for allowing the open use of amphetamines in its locker room?

The answer is a resounding, No!

Also, so far I've only heard one player complain. Prior to the MLBPA, which was started by some relatively conservative players, the advantage was all one-sided. Really one-sided. At least now the terms of the Basic Agreement are the result of collective bargaining. It's a give and take. If "no testing" was so odious, the owners didn't have to sign the Agreement.

The bargaining is a battle between millionaires and billionaires, and both sides always end-up with whatever they think will make them the optimum amount of money.

No tears here for either side. The owners big boys (and Marge Schott was and Mrs. Autry is, a big girl). Your post is as much crybabying as those that you're complaining about.

Posted by: DC | December 14, 2007 04:33 PM

Off topic:

Do any of you know if the author of the following letter is who he says he is, or if he actually wrote it, or if the contents are true?
In December 1974, as general counsel and chief of staff of the House Judiciary Committee, I made a personal evaluation of Hillary Rodham (now Mrs. Clinton), a member of the staff we had gathered for our impeachment inquiry on President Richard Nixon. I decided that I could not recommend her for any future position of public or private trust.

Why? Hillary's main duty on our staff has been described by as "establishing the legal procedures to be followed in the course of the inquiry and impeachment." A number of the procedures she recommended were ethically flawed. And I also concluded that she had violated House and committee rules by disclosing confidential information to unauthorized persons.

Hillary had conferred personally with me regarding procedural rules. I advised her that Judiciary Committee Chairman Peter Rodino, House Speaker Carl Albert, Majority Leader Tip O'Neill and I had previously agreed not to advocate anything contrary to the rules already adopted and published for that Congress. I quoted Mr. O'Neill's statement that: "To try to change the rules now would be politically divisive. It would be like trying to change the traditional rules of baseball before a World Series."

Hillary assured me that she had not drafted and would not advocate any such rules changes. I soon learned that she had lied: She had already drafted changes, and continued to advocate them.

In one written legal memorandum, she advocated denying President Nixon representation by counsel. This, though in our then-most-recent prior impeachment proceeding, the committee had afforded the right to counsel to Supreme Court Justice William O. Douglas.

I also informed Hillary that the Douglas impeachment files were available for public inspection in our offices. I later learned that the Douglas files were then removed from our general files without my permission, transferred to the offices of the impeachment inquiry staff, and were no longer accessible to the public.

The young Ms. Rodham had other bad advice about procedures, arguing that the Judiciary Committee should neither 1) hold any hearings with or take the depositions of any live witnesses, nor 2) conduct any original investigation of Watergate, bribery, tax evasion, or any other possible impeachable offense of President Nixon - but to rely instead on prior investigations conducted by other committees and agencies.

The committee rejected Ms. Rodham's recommendations: It agreed to allow President Nixon to be represented by counsel and to hold hearings with live witnesses. Hillary then advocated that the official rules of the House be amended to deny members of the committee the right to question witnesses. This unfair recommendation was rejected by the full House. (The committee also vetoed her suggestion that it leave the drafting of the articles of impeachment to her and her fellow special staffers.)

The recommendations advocated by Hillary were apparently initiated or approved by Yale Law School professor Burke Marshall - in violation of committee and House rules on confidentiality. They were also advocated by her immediate supervisors, Special Counsel John Doar and Senior Associate Special Counsel Bernard Nussbaum, both of whom had worked under Marshall in the Kennedy Justice Department.

Jerry Zeifman

Posted by: mark_in_austin | December 16, 2007 06:20 PM

I have received an earful about Zeifman and now discount his letter.

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