Browns quarterback Deshaun Watson has opted not to cooperate with HBO’s treatment of the 22 civil cases pending against him. His lawyer, Rusty Hardin, has been speaking to select members of the media in recent days in an effort to do that which Hardin claims he isn’t 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 to get the NFL to take no action against Watson.
“If we’re going to say, as everybody in the system does, that a prosecutor can get a ham sandwich indicted if they want. . . that would mean that when they choose not to take extra consideration given to that,” Hardin said.
That argument is flawed, however. A prosecutor both can get a ham sandwich indicted — and can get a ham sandwich not indicated. Because it’s a one-sided presentation of evidence, the prosecutor has wide latitude to nudge the grand jury in whichever direction the prosecutor wants it to be nudged. The prosecutor, thus, can push toward an indictment. The prosecutor also can push toward no indictment.
Why would the prosecutor want no indictment? Because the prosecutor may not want to have to try to win one or more of those 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 hand forced and/or their hands tied by a grand jury that finds “probable cause” in a case where the evidence nevertheless is rife with reasonable doubt, which easily can happen in a case of conflicting versions of events told by two people with no third party present to break the tie.
In Watson’s case, it’s not known (because the process happened in secrecy) whether and to what extent the prosecutor tried aggressively to get one or more indictments.
Despite Hardin’s argument, he nevertheless realizes that the nature of the allegations may result in the NFL taking action.
“It’s going to be very hard for the NFL to have the courage to do what I think should be done, which is no finding,” Hardin said. “That all remains to be seen, some time this summer.”
The Personal Conduct Policy gives the league broad latitude when it comes to identifying potential misconduct. Despite the allegations that Watson faces in civil court and the evidence presented to the grand jury in the criminal complaints, the league’s policy prevents not only “assault and/or battery, including sexual assault or other sex offences” but also “conduct that poses a genuine danger to the safety and well-being of another person” and “conduct that undermines or puts at risk the integrity of the NFL, NFL clubs, or NFL personnel.”
Thus, it’s possible that the league will choose to punish Watson under the same reasoning that applied in 2010 to Steelers quarterback Ben Roethlisberger. As Goodell told Roethlisberger regarding alleged misconduct in Milledgeville, Georgia that resulted in a six-game suspension (reduced to four): “I recognize that the allegations in Georgia were disputed and that they did not result in criminal charges being filed against you, My decision today is not based on a finding that you violated Georgia law, or on a conclusion 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 in Milledgeville that can remotely be described as admirable, responsible, or consistent with either the values of the league or the expectations of our fans. . . . Your conduct raises sufficient concerns that I believe effective intervention now is the best step for your personal and professional welfare.”
To the extent that Goodell follows the precedent created by the Roethlisberger case, Watson could be in line for a suspension even if, as Hardin wants, the grand juries’ decisions are in some way regarded as dispositive as to the 22 claims made against Watson.