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.
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