Tom Brady, Deflate-Gate, and the Criminal Justice System

One of my favorite bloggers, Paul Campos, recently studied the transcript of deflate-gate and concluded that “The NFL’s case against Brady is a joke.”  I don’t doubt his claim for a minute; in fact, it’s what I suspected from the get-go.  (Who the hell would want to play with an under-inflated football anyway?  Not Tom Brady.  See p. 50 of the transcript.)  But that’s not the point of this post.  Rather, my point is that Campos’s observations about due process in the Brady case are also relevant to defendants charged with crimes.  For example:

Campos writes about the “absurdly lax evidentiary standard of being more probable than not[.]”  Apparently, that’s all that’s needed for the NFL to get Brady.  Surprisingly, though, that’s essentially the burden of proof in many criminal cases.  Sure, we all labor under the delusion that the government has to prove its case “beyond a reasonable doubt.”  But in some states, including Wisconsin, trial judges instruct jurors that “you are not to search for doubt.  You are to search for the truth.”  But isn’t that really a preponderance of the evidence standard like the one being used against Brady?  If a jury is persuaded by the slightest preponderance of the evidence (but not beyond a reasonable doubt) that a criminal defendant is guilty, doesn’t their judge-ordered “search for the truth” require them to convict?  (I argued, here, that this is a real risk if not a foregone conclusion.)  

Campos also writes that Brady’s persecutor’s “prejudged this case and then went looking for any evidence to confirm their conclusion, while ignoring everything that contradicted it.”  Similarly, in criminal cases, pro-state judges often make up their minds ahead of time, and then use several legal tools to justify their predetermined outcomes.  These tools include even lower standards of proof including the “probable cause” standard for motions and other hearings, as well as easily manipulated “multifactor balancing tests.”  In criminal courts, it’s typical for the judge to first reach a decision, and then cherry-pick their facts to support that decision.     

Campos also writes that, despite the problems with the case against Brady, “this doesn’t necessarily mean that a federal court would overturn [the] sanctions against Brady, because the relevant rules give [Brady’s persecutors] a lot of discretion to make substantively horrible decisions without being overturned.”  And this, too, is similar to the criminal justice system where judges are given tremendous discretion and their nearly every ruling is upheld.  For example, in order for an appellate court to overturn a trial judge’s sentence, it basically has to find that the judge made up the facts relied upon in reaching that sentence — something that most (but not all) trial judges are swift enough to avoid doing.

Campos rightly points out that due process in the Brady case “is a joke.”  But Brady is lucky.  Even if he loses his appeal, he only loses four weeks’ pay.  Criminal defendants — many of whom are incarcerated while their case is pending — can lose that and a whole lot more before they can even get their pretrial motions heard.  And by the end of their cases — cases which often drag on for several years — the ultimate cost in time, money, quality of life, and freedom is staggering. 

(For more on how the criminal justice system ruins lives of ordinary and even innocent people, see my second book, Tried and Convicted: How Police, Prosecutors, and Judges Destroy Our Constitutional Rights, published by Rowman & Littlefield Publishers, Inc.)