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Yes, Ray Rice’s Diversion Adjudication Was Appropriate

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JusticePicThe popular meme has been that Ray Rice got some kind of miraculous plea deal to diversion (pre-trial intervention, or “PTI”, in New Jersey parlance) and that NOBODY in his situation ever gets the deal he did.

Is that true? No. Not at all. Kevin Drum wrote a few days ago at Mother Jones on this subject:

First, although Ray Rice’s assault of Janay Palmer was horrible, any sense of justice—no matter the crime—has to take into account both context and the relative severity of the offense. And Ray Rice is not, by miles, the worst kind of domestic offender. He did not use a weapon. He is not a serial abuser. He did not terrorize his fiancée (now wife). He did not threaten her if she reported what happened. He has no past record of violence of any kind. He has no past police record. He is, by all accounts, a genuinely caring person who works tirelessly on behalf of his community. He’s a guy who made one momentary mistake in a fit of anger, and he’s demonstrated honest remorse about what he did.

In other words, his case is far from being a failure of the criminal justice system. Press reports to the contrary, when Rice was admitted to a diversionary program instead of being tossed in jail, he wasn’t getting special treatment. He was, in fact, almost a poster child for the kind of person these programs were designed for. The only special treatment he got was having a good lawyer who could press his cause competently, and that’s treatment that every upper-income person in this country gets. The American criminal justice system is plainly light years from perfect (see Brown, Michael, and many other incidents in Ferguson and beyond), but it actually worked tolerably well in this case.

Mr. Drum is absolutely correct, Ray Rice was quite appropriate for the diversion program he was ultimately offered and accepted into by Atlantic County Superior Court. Let me be honest, Kevin talked to me about this and I told him the truth.

In fact, that is exactly the deal I would hope, and expect, to get for any similarly situated client in Rice’s position. It is also notable the matter was originally charged as a misdemeanor assault in a municipal court, which is how this would normally be charged as there was no serious physical injury. Rice would have gotten diversion there too and, indeed, that was the deal his lawyer, Michael Diamondstein, had negotiated with the municipal prosecutors before the county attorney snatched jurisdiction away and obtained a felony indictment. Despite the brutality depicted by the video, this is precisely the type of conduct that underlies most every domestic violence physical assault (seriously, what do people think it looks like in real life?) and it is almost always charged as a simple misdemeanor assault.

Janay Palmer Rice clearly did not receive a “serious physical injury” level of injury under the applicable New Jersey definition in NJ Rev Stat § 2C:11-1(b) and a small period of grogginess/unconsciousness is not considered, by itself, as meeting the threshold. Now, to be fair, New Jersey has two levels of injury that can lead to a felony charge, the aforementioned “serious physical injury”, and the lower “significant physical injury”, pursuant to NJ Rev Stat § 2C:11-1(d) that Rice was charged under, and which is a far less serious charge, even though still nominally a felony under New Jersey classification.

The injury to Janay Palmer (Rice) did fall within the lower “significant physical injury” threshold under New Jersey’s criminal statutes because of the momentary apparent lapse of consciousness. So, under the New Jersey statute, while the felony, as opposed to simple misdemeanor, charge may have not been the norm for such a fact set, it was certainly minimally factually supportable. That said, most all similar cases would still be charged as simple assault, as indeed, as stated above, Rice initially was. The New Jersey assault statute, with its different iterations of offenses, and offense levels, is here.

With that description of the nature and structure of assault in New Jersey out of the way, there is something else that must be addressed: I am absolutely convinced that the Read more →

Madame Defargewheel’s Football Guillotine Trash Talk

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So, I heard on the radios today that the “sharps”, “insiders” and other “experts” were calling this weekend a “guillotine” because there were so many make or break games in both college and pros. Seasons on the chopping block and whatnot. I was doing about 85 with the sunroof open and did not quite catch who it was blathering this bunk, but it struck my fancy. What the hell, make it so, this is hereby now “Guillotine Week!” Hard to think about guillotines without good old Madame Defarge sitting there knitting. Knitting. Endlessly knitting. So, thus the title theme of Defarge and guillotines. Nothing but the most wholesome fare for our readers!

Okay, so we lead off this week with probably the most compelling game of the year, the Michigan Wolverweenies at the Northwestern Fighting Journalists. Hahahaha, just kidding. Nope, the game of the week is right here at Sun Devil Stadium where Notre Dame will be taking on the ASU Sun Devils. I will be rooting for the home team of course, but they have their work cut out for them. For starters, while ASU has had a decent team over the years, every time they have been on a big stage with real glory there for the taking, they get killed. Take last year’s Pac-12 Championship game against Stanford for instance. It is just a fact, the Devils don’t show up when the lights are the brightest.

So, will the pattern of big game disappointment hold again this afternoon? Both teams are 7-1, and they are ranked 9 and 10 in the polls currently. ASU’s loss was a blowout to UCLA, the Irish loss was a nail biter to Florida State. The Irish are two and a half point favorites. ASU’s defense is good, but will be missing their best defensive tackle, Jaxon Hood. They also have an annoying tendency of giving up big plays, and Everett Golson is one hell of a QB, both on the ground and in the air. The 2.5 spread on this game feels too small. Taylor Kelly, the Devils starting QB has just not been that good in the two games coming back from a month off with a foot injury. Honestly, Mike Bercovici, who filled in when Kelly was out, is a lot better passing quarterback, and ASU needs that vertical ability. Sad to say, but I think ASU is in for yet another big stage failure.

The other top shelf guillotine game in the college ranks is Ohio State at Michigan State. This game, like ASU and Notre Dame is a knockout round for consideration for the big playoff picture. A one loss B1G conference champ will likely get one of the four playoff bids, and one of these teams is going to be out of the race after this game. The Spartans just feel like a superior team to the Sweatervests, and are at home, so they look good here. The third chopping block matchup is Kansas State at the TCU Horned Frogs. Both teams have only one loss and they are ranked 6 and 7 in the country respectively. TCU really rolls up big scores, but they seem flaky for some reason. I am taking Kansas State in an upset. In other news, SEC studs ‘Ole Miss is playing some powerhouse known as the Presbyterian Blue Hose. Seriously, the Blue Hose?

In the pros, the Browns already laid an ass whuppin on the favored Bengals in Cinci. And the solid play of Brian Hoyer has started rumors that Cleveland will trade Johnny Football, maybe to the Cowboys (and we know Jerry Jones still pines for him). The first guillotine game is the 49ers at Saints. Both teams are 4-4. A loss hurts San Fran more than New Orleans because going to 4-5 would put the Niners in a huge hole in the NFC West, where the Saints would still be in competition in the woeful NFC South. I think the Saints roll at home i the dome. The Fish at the Lions has an air of importance about it too. Miami is quietly on a roll with their offense starting to be as solid as their defense. Detroit is at 6-2 and near the top of the NFC, but they are desperate to keep their lead on Green Bay, who is home at Lambeau against the Bears. The Chiefs at Bills is another game that seems to be a turning point for both teams. I think the Chiefs pull off the road win.

Also on tap is the Brazilian Grand Prix at Interlagos. Hamilton seems to have locked up the drivers crown, although Rosberg is still within range. Hard to see Nico pulling it off though, he just can’t get his early season momentum back. In other news, the arbitration hearing on Ray Rice was held over the course of two full days on Wednesday and Thursday. There is a gag order, ad therefore little hard information, but it does seem that Ozzie Newsome backed up Rice regarding Rice having been honest and fully disclosing to Goodell. Goodell was crossed by Jeff Kessler, who is very good, for over two hours. That must have been interesting.

Okay, there you have it. Music this week by the late great Warren Zevon.

Big Games and the End of the Hokey Pokey Era Trash Talk

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My my, there is a lot going on in the sporting world this weekend, so let’s take a look at some of the more interesting bits and pieces. First off there was some big news in Ann Arbor yesterday that pretty much answers the burning question from last weeks trash talk, namely who will scuttle their flailing football coach sooner, Michigan or Florida? The answer is in, and it is the Michigan Men! Michigan Athletic Director Dave Brandon has resigned effective immediately, and that will almost certainly spell the end of the Brady Hokey era for the Wolverweenies.

There are a couple of updates to items on the Docket Report. First, there was a hearing in EDVA on the appeal lawsuit of the Washington Redskins from the negative trademark decision in the administrative patent court system. The hearing was on a motion to dismiss and the early reports are the court was dubious about the dismissal effort and seemed inclined to retain jurisdiction. If so, that probably favors Dan Snyder and the Skins, because it will allow additional evidence to supplement the narrow and limited administrative record. It will be interesting to see what the decision is here. Secondly, the Ray Rice appeal hearing is set for next Wednesday, and the hearing officer, Judge Barbara Jones, has ordered Roger Goodell to testify. Some people are discussing a settlement, but I would be surprised. This could be fascinating seeing good attorneys cross-examine Goodell.

Then there are the games. The World Series is over, and congratulations to the San Francisco Giants who won a compelling series over the Kansas City Royals. The Cicago Cubs have hired Joe Maddon as their new manager after he quite suddenly up and left the Tampa Bay Rays. That is a great move for the Cubs, but the Cubbies are career killers for managers. RIP Joe Maddon. And the NBA season has started, so there is that. But we are really about football here, so let’s get to it, and there are a lot of big match ups on tap.

You would think that there is no way possible that the biggest game is not Peyton versus Brady and the Broncos at Patriots in the quarterback battle of the ages. Nope, that ain’t it. No, the biggest game this weekend is the Cardinals at Jerryworld to take on the Cowboys. The Cards, along with the aforementioned Broncos, have the best record in the NFL to date with only one loss on the season. The Cowboys were up there too before last week’s close loss to an inspired Redskins squad. This really shapes up as a great game. The Cowboys Demarco Murray has passed Jim Brown with eight straight games over 100 yards to open a season. But the Cards have perhaps the leagues best run defense. The Cowboys can be thrown on, and Carson Palmer has finally got Larry Fitzgerald untracked. Tony Romo is hurting and has not practiced all week. Oh, and by the way, the Honey Badger is back. All the factors point to the Cardinals having the edge. So I am picking the ‘Boys on the basis that they are home, and pissed about their performance against the Skins.

The other big game is of course Broncos at Patriots. Both Brady and Manning are playing lights out currently, and the Pats are on a bit of a roll. Any matchup between these two quarterbacks is an instant classic candidate, and this one is no different. I am going to assume ‘Ole Noodle Arm Manning and Brady cancel each other out. once you get past that, and even understanding Gronk is really rounding into the old Gronk, the Broncos simply have more and better weapons on offense. The Broncos also have a better defense, and they get the pick here. The only other really interesting game on the NFL schedule is Ravens at Steelers. Oddsmakers have it a draw right now, but I think Big Ben and the Stillers have found a groove and pull out the home win at the Big Catsup Bottle.

In college, the unquestioned game of the week is number 3 Auburn at number 4 ‘Ole Miss. After today, one of the teams will be done for the playoff discussion. The Rebels are favored by two at home, and that sounds about right to me. The other really good match ups are in the Pac-12, which has provided every bit as much excitement and compelling football this year as the SEC. Stanford is at Oregon, and the Trees have a history of manhandling the Ducks and giving them fits. Stanford is having an off year, but seemed to find an offensive groove last week. Still, I think the Quackers have the edge. Number 12 Arizona is at number 22 UCLA and I smell an upset here. Lastly, in a night game, number 17 Utah is at number 14 ASU. Utah is always superbly coached by Kyle Willingham and is consistently a better team than people give them credit for. But ASU has some momentum and, as long as they don’t get caught looking forward to next week’s tilt with Notre Dame, should take care of business in Sun Devil Stadium, though I expect a tight game.

Welp, that is it for this week. Rock on. This week’s music by Gerry Mulligan, Dave Brubeck, Doc Severinsen and the Cincinnati Pops with Duke Ellington’s classic “Take the A’Train”.

Week Four Trash Talk

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Not nearly as much criminal docket news this week, but one thing is notable. The NFL has started its pushback on the AP story of the “law enforcement official” who sent the full elevator video to the league now that AP has supplemented its original report to reflect that the law enforcement official sent the tape addressed to Jeff Miller, the head of the NFL Security Office in New York.

This is a sizable problem for the league. So now the NFL is shopping, through its oh so subservient mouthpiece ESPN, the posture that the tape story is all a lie:

“Our office has found absolutely no evidence to support the claim of the anonymous ‘law enforcement source’ that he sent a video to the NFL office or that he received a telephone call to his ‘disposable cell phone’ from an unidentified female using an NFL line,” the league said.

This is simply pathetic. As if they had not already engaged in enough mendacity and duplicity over their handling of the Rice case, now they are doubling down. Their defense to the tape allegations is it is all a lie. That the AP got hoaxed on their huge story. The AP, who knows exactly the full identity of their source, his law enforcement status, and presumably has confirmed details. The NFL is the truth teller and everyone else, from Ray and Janay Rice, to Ozzie Newsome, to casino security, to the cops, to the venerable AP…they all are lying. Yeah, that’s the ticket. Roger Goodell and the NFL grow exponentially more pathetic with each passing day.

After Thursday night’s debacle here at Sun Devil Stadium, it is hard to talk about football at all. Very ugly. A possible upset special might be Stanford at Washington. Tough conference game and the Huskies are improved under Chris Peterson. The national interest seems to be on FSU and Heisman criminal Winston at NC State. Hard to see the Wolfpack making a game of it, but one can hope. Really not a lot of interesting games this week.

On the beleaguered NFL side, there are a few games worth watching. Starting, of course with the best rivalry in the history of pro football, Packers and Bears. It is at Soldier Field, so I am not sure why the Cheese is a one point favorite. The Pack is playing like crap so far this year, no running game and an unusually ineffective passing attack. I’ll take the Bears here. Can the Lions stay on their early season roll and beat the Jets Jets Jets? Yes, they can. Eagles at Niners is really interesting. Eagles are rolling, and San Fran is reeling. Oh, and Jim Harbaugh really is a giant flaming detestable asshole. So, I will be rooting for the Iggles, plus they are more fun to watch. Patriots have been horrible so far, especially on offense. Still hard to see them not beating the Chefs to go to 3-1 despite how bad they have been. KC is still hung over from the Royals making the playoffs.

On a sad note, this blog has lost another of our old friends dating back to when we started. She has been absent for about two years now, but Skdadl was a great and wonderful presence in our comment threads for a very long time. Now she is gone. The full obituary for Susan Kent Davidson is here, and she had a full life. RIP Susan.

On that melancholy note, I leave you to chat it up.

Criminal Docket Talk

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Another week, another series of missteps and embarrassment for the National Felon League. More facts surface showing Adrian Peterson to be a backwards horrible human, the Cardinals’ Jonathan Dwyer is charged with felony assault for head butting his wife and breaking her nose and Roger Goodell held a news conference yesterday where he came off as even a bigger dissembling jackass than he seemed before.

Lost, at least somewhat, in the relentless shuffle of negativity surrounding the NFL were significant developments in the Ray Rice case that set everything off to start with. As an excellent report by ESPN’s Outside The Lines lays out, both the Baltimore Ravens and the NFL knew everything about the Rice incident immediately and colluded to minimize the impact on Rice. From the New York Daily News:

According to the ESPN report, the Ravens’ director of security, Darren Sanders, was made aware of the inside-the-elevator video just hours after Rice clocked his then-fiancée, Janay Palmer, at the now-closed Revel Hotel and Casino in Atlantic City in mid-February. Sanders, according to the report, had reached out to an Atlantic City police officer, who described in detail what transpires in the elevator video. Sanders then conveyed the information to Ravens executives, according to ESPN, although the report does not name which individuals Sanders contacted.

The report describes how Ravens owner Steve Bisciotti, team president Dick Cass and GM Ozzie Newsome worked behind the scenes to try to have their star running back get off with a lenient punishment. According to ESPN, the three men campaigned with prosecutors in Atlantic City — where Rice was charged with assault — as well as with Goodell, since he would mete out punishment for Rice, and with organizational personnel.

The full NYDN article linked above is worth a read, and the long form detailed ESPN OTL article is chock full of further details and a tick tock from the night of the incident through the present day. Literally the only person who seems to have consistently been honest in this mess is Ray Rice. As I said in last week’s Trash Talk, I think he has a pretty good chance in his appeal with the league and the Ravens over his suspension in light of the Article 46 §4 single penalty clause. The Players’ Union formally noticed that appeal last Tuesday, and it is supposed to be heard within ten days.

Hey, it is not just the NFL that is chock full of criminals, the NBA has them too! Rex Chapman, former sharp shooting guard for the Bullets and Suns, and former NBA team executive, just got arrested for shoplifting $14,000 (yes, $14,000!!) of Apple products in Scottsdale. Oh, and career criminal Jameis Winston is in trouble again.

Welp, in addition to all the criminal docket activity, there is purportedly actual football to be played. It seems kind of secondary any more.

The Florida Gators are in Tuscaloosa and look ripe to get rolled by the Tide. I actually think the BYU and Virginia game may be decent. Don’t sleep on the Cougars, they have a good team and a favorable schedule this year. They are capable of going undefeated, but the Cavaliers will be a test. FSU may not have Career Criminal Winton at QB, but they should have enough at home to get past Clemson. Mississippi State could be a tough matchup for LSU.

The big game in the National Felon League is, of course, the rematch of the Super Bowl when Peyton and the Broncs meet the Seasquawks in Seattle. This game will be a lot closer that the SB was; I rate it a toss up, but would not be surprised if Peyton pulls off the win. The surprising Bills host the Chargers in an early game that should be pretty interesting. The Packers are in Detroit. Both teams are 1-1 and need the win. As much as I hate to say it, I think Detroit is the better team right now, and it will show. But Aaron Rodgers is starting to heat up again, so it could go either way. While the rest of the country is watching Peyton versus the Squawks, I will be stuck with Niners at the Cards. Carson Palmer is out again it appears for the Cards, and Drew Stanton will start for a second week in a row. With Palmer, I would like the Cards, but not sure there will be enough offense without him, so I will take the Niners there.

Well, that is enough. Talk some trash amongst yourselves.

The National Felon League: Week 2 Trash Talk

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Welp. Not a particularly banner week for the National Football League. In fact, I am not sure I have ever seen a league, any league, take quite the self inflicted beating that Goodell and the NFL have this week.

The Ray Rice affair was already quite the ugly black eye before all hell broke loose, and appropriately so, with the release of the TMZ tape clip from inside the elevator at the Revel Casino in New Jersey. Marcy already covered the tape and some of its implications. I don’t have a ton to add here, but I do have a couple of things to say. First, the NFL and Goodell are just flat lying through their teeth about the video. I have dealt with pro security offices before, including one in the NFL. They are almost always run by either ex-FBI or ex-state police. Experienced people that know what they are doing and are very connected to police and other local authorities (say, for instance prosecutors). If the Ravens and NFL security wanted the video, they would have the video, whether from the Atlantic City Police or from the Revel Casino itself. The thought they couldn’t get it is absurd. And that is irrespective of the law enforcement member that says he gave it to the NFL.

Secondly, a lot of people are shocked and outraged that Rice was give a diversion plea. Frankly, I am not all that shocked; diversion is not at all uncommon where there are no serious physical injuries, no prior convictions and the victim uncooperative as to prosecution and requests that diversion be given. That is certainly the case here, and from talking to a couple of experienced attorneys in New Jersey, it is not at all unheard of there. Here is the actual prosecutor’s reasoning for doing so. Here is a TMZ report citing anonymous junior prosecutors in the Atlantic County DA’s office saying it is very rare and expressing outrage. Frankly, in Arizona, I think the Rice case would be filed as a misdemeanor to start with and while diversion would be discretionary, it would not be uncommon. Time, and their own conduct, will tell if diversion was the right Read more →

Is NFL Telling Stories Now about Previously Seeing Ray Rice Video because They Believe(d) It Exonerates Rice?

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NFL officials are everywhere claiming that no one saw the Ray Rice video released today by TMZ back when they considered his punishment.

But, as Deadspin points out, Peter King’s reporting from July clearly suggests both the NFL and the Ravens had seen the video. Here’s what he wrote in July:

There is one other thing I did not write or refer to, and that is the other videotape the NFL and some Ravens officials have seen, from the security camera inside the elevator at the time of the physical altercation between Rice and his fiancée. I have heard reports of what is on the video, but because I could not confirm them and because of the sensitivity of the case, I never speculated on the video in my writing, because I don’t think it is fair in an incendiary case like this one to use something I cannot confirm with more than one person. I cannot say any more, because I did not see the tape. I saw only the damning tape of Rice pulling his unconscious fiancée out of the elevator.

But I don’t think Deadspin emphasizes the implication of this enough.

King raised the reports of the video he got to explain why he had said he thought it was fair for Rice to get just a 2-game suspension (though he thought 4 to be more fair). That is, people told him this video exonerated Rice.

There is a certain (perverse) logic to that. It suggests that because Rice’s then fiancée swung at him, he was justified in belting her, which led her to lose consciousness. (It’s not clear to me whether the blow itself or hitting her head on the railing knocked her out).  That might explain why she issued an apology at the time, because obviously swinging at Rice and getting knocked out in response makes it all her fault.

That is, the scandal of the video — in addition to the fact that they appear to be lying about having considered it in their discussion of Rice’s punishment — is they believed that because Janay swung at Rice he was justified in swinging back.

Even assuming that was their logic, though, remember that Roger Goodell was at this same time giving long, long punishments to various people for doing the harmless thing of smoking dope.

Update: In a follow-up post, now showing that Chris Mortenson and several other reporters also got the same report, Deadspin does emphasize this. NFL was telling reporters in July this video exonerated Rice (because Janay “attacked” Rice). Now they’re claiming they never saw it.