Browns quarterback Deshaun Watson has chosen not to cooperate with HBO’s handling of the 22 civil cases pending against him. His attorney, Rusty Hardin, has spoken to some members of the media in recent days in an effort to do what Hardin claims he’s not trying to do: win the battle in the court of public opinion.
Most recently, Hardin appeared on a podcast with Tulane law professor Gabe Feldman. During the interview, Hardin argued that the decisions made by a pair of grand juries in Texas should be enough for the NFL to take no action against Watson.
“If we’re going to say, like everyone else in the system, a prosecutor can charge a ham sandwich if they want to. . . it would mean that when they choose not to give it further consideration,” Hardin said.
This argument, however, is flawed. A prosecutor can charge a ham sandwich – and can get a ham sandwich do not charged. Because this is a one-sided presentation of evidence, the prosecutor has wide latitude to push the grand jury in the direction the prosecutor wants them to be pushed. The prosecutor can therefore push for an indictment. The prosecutor can also push for no charges.
Why wouldn’t the prosecutor want an indictment? Because the prosecutor may not want to have to try to win one or more of these cases under the ridiculously high standard of proof beyond a reasonable doubt.
Prosecutors don’t like to lose. Prosecutors, in some situations, may not want to have their hands forced and/or hands tied by a grand jury finding “probable cause” in a case where the evidence is nevertheless full of reasonable doubt, which can easily be occur in a case of conflicting versions of events told by two people without a third party present to break the tie.
In Watson’s case, it is unclear (because the process was conducted in secrecy) whether and to what extent the prosecutor aggressively attempted to obtain one or more indictments.
Despite Hardin’s argument, he nevertheless realizes that the nature of the allegations may cause the NFL to take action.
“It’s going to be very difficult for the NFL to have the guts to do what I think needs to be done, which is inconclusive,” Hardin said. “That remains to be seen, a bit this summer.”
The personal conduct policy gives the league wide latitude when it comes to identifying potential misconduct. Despite the allegations Watson faces in civil court and the evidence presented to the grand jury as part of the criminal complaints, the league’s policy not only prevents “assault and/or bodily harm, including sexual assault or other sexual offences”, but also “the behaviors which pose a problem”. genuine danger to the safety and well-being of another person” and “conduct that impairs or endangers the integrity of the NFL, NFL clubs or NFL personnel”.
Thus, it is possible that the league chooses to punish Watson according to the same reasoning that applied in 2010 to Steelers quarterback Ben Roethlisberger. As Goodell told Roethlisberger regarding an alleged misconduct in Milledgeville, Georgia, which resulted in a six-game suspension (reduced to four): “I acknowledge that the allegations in Georgia have been disputed and have not been disputed. not result in criminal charges against you, My Today’s decision is not based on a finding that you violated Georgia law, or on a finding that differs from that of the local prosecutor. That said, you are held to a higher standard as an NFL player, and there is nothing about your conduct at Milledgeville that can remotely be described as admirable, responsible, or consistent with league values or the expectations of our fans. … Your conduct raises enough concerns that I believe effective intervention is now the best step for your personal and professional well-being.
To the extent that Goodell is following the precedent set by the Roethlisberger case, Watson could face a suspension even if, as Hardin wants, grand juries’ decisions are somehow considered determinative of the 22 complaints filed. against Watson.