Commentary

Athletes, fame and the justice system

Do athletes get special treatment in court? That depends on their representation

Originally Published: April 1, 2010
By Lester Munson | ESPN.com

A halfway house for Gilbert Arenas on a gun charge.

Two years in prison for Plaxico Burress on a gun charge.

Thirty days in jail for Donte Stallworth on a manslaughter charge.

Total dismissals of sexual assault charges against Kobe Bryant, Mark Chmura and the Duke lacrosse players.

Donte Stallworth
AP Photo/Alan DiazDonte Stallworth pleaded guilty to DUI manslaughter and only spent 30 days in jail.

Probation for Ray Lewis on double murder charges.

Twenty-three months in prison for Michael Vick on dogfighting charges.

Are celebrity athletes given special treatment in the courts? Will it be a factor in the ongoing sexual assault investigation of Ben Roethlisberger in Georgia? Or are athletes subject to the same whims of judges and juries and the same capricious outcomes as anyone else who finds himself entangled in what America likes to call its "system" of justice?

Looking back over two decades of covering legal cases involving violence and guns in the world of sports -- from the rape conviction of Mike Tyson in 1992 to the current Roethlisberger investigation -- some things are clear:

• Money and fame give athletes access to the finest and most formidable of defense lawyers.

• Local police, prosecutors and judges only occasionally can rise up and meet the challenges that come with intense coverage and expensive defense lawyers.

• More often, local police and prosecutors are overwhelmed by the pressures of media coverage and relentless attacks from dream teams of defense lawyers.

• Local prosecutors occasionally go rogue and seek to use a criminal charge against a famous athlete as a ticket to ride to higher office.

[+] EnlargeJim Leyritz
Larry Marano Getty ImagesBaseball fans know Jim Leyritz. Will that help him in his DUI manslaughter trial this summer?

The quality of the performances of the police and these lawyers -- both defense lawyers and prosecutors -- is the single most critical factor in what happens to athletes charged with crimes. They set the table. They paint the picture. They work the system, pushing it and bending it in the direction of their clients' objectives. So, yes, the cases start with the celebrity of the athletes in trouble with the law, but the words, ideas and arguments from the attorneys involved in the court process have a greater impact on the outcomes ultimately determined by judges and juries.

The late Johnnie Cochran set the gold standard for defense lawyers with his never-to-be-duplicated representation of O.J. Simpson in the murders of his former wife, Nicole, and her friend, Ron Goldman. Although it is difficult to imagine now, Simpson's combination of money and fame from football, films and endorsements was a magnet that drew Cochran and other top lawyers to his defense. Cochran's charisma and his ability to turn the most innocuous of courtroom developments to his advantage overwhelmed the prosecutors and the judge, and produced a not-guilty verdict in the face of overwhelming evidence of Simpson's guilt.

Other athletes facing life-altering charges have benefited from performances by lawyers who approached -- even if they didn't reach -- the Cochran standard. To name a few: Milwaukee attorney Gerald Boyle's defense of Chmura against bogus sexual assault charges, Atlanta attorney Ed Garland's defense of Lewis in a double murder case, Denver attorneys Hal Haddon and Pamela Mackey's defense of Bryant against rape charges, Miami attorney Christopher Lyons' defense of Stallworth on a DUI manslaughter charge and Fort Lauderdale attorney David Bogenschutz's current defense of Jim Leyritz in a DUI manslaughter case scheduled to go to trial on July 12.

On the other side, the gold standard for prosecutors was set by the brilliant Indianapolis trial lawyer Greg Garrison in his prosecution of a rape charge against Tyson that put Tyson behind bars for three years. I have been around judges and lawyers on a daily basis since I graduated from law school in 1967, and Garrison's performance in the Tyson case was the finest I've seen.

With a battery of lawyers from the powerful Washington law firm of Williams & Connolly fighting him at every turn, Garrison turned a difficult case into a triumph. It was no accident. Garrison, hired by the local prosecutor to focus on the Tyson trial, spent months in study and preparation, setting aside all other work.

[+] EnlargeJohnnie Cochran
AP Photo/Vince Bucci'If it doesn't fit, you must acquit.' Johnnie Cochran worked wonders for O.J. Simpson.

His mastery of forensic evidence and rhetorical firepower drew every eye in the courtroom to him and to what he was proving. In less than 20 minutes of cross-examination, he destroyed Tyson's attempt to explain what happened. In a cross-examination of a Tyson expert witness, he extracted an admission that the medical evidence showed a forcible assault rather than the consensual sex that the expert was hired to describe. When Garrison told the jury in his riveting and masterly final argument that he was nearly finished, I was tempted to stand up and ask for more, an encore.

Others in the rarely seen category of superior efforts by prosecutors: David Roger and Christopher Owens, who presented a powerful robbery and kidnapping case against Simpson in Nevada that led to an 18-year prison sentence, and the team of federal prosecutors and Department of Agriculture agents who led the dogfighting prosecution against Vick.

Roger and Owens somehow managed to produce believable testimony from the thugs and hangers-on who were part of Simpson's ill-fated attempt to take back personal memorabilia that had found their way into the hands of marginal dealers. Then, in a final argument to the Las Vegas jury, Owens produced a dazzling, high-tech package of audio recordings, videotapes and argument that had me shaking my head in awe. Owens used security camera video and audio from recordings made by Simpson's pals to contradict every claim made by Simpson's legal team.

The federal agents and prosecutors in Richmond, Va., the home of what lawyers and judges across the nation call the "rocket docket," were miles ahead of Vick and his lawyers from the moment of the first raid on his kennel until he began to serve his time. The momentum of their up-tempo investigation pushed Vick's partners in the kennel operation into rapid guilty pleas and produced what amounted to an unconditional surrender from Vick's outmaneuvered lawyers.

The performance of the now-disgraced and disbarred Durham, N.C., prosecutor Michael Nifong is the most obvious example of a prosecutor going rogue in an investigation with intense media coverage. Ignoring evidence of innocence and tampering with other evidence as it pertained to Duke lacrosse players, Nifong's ambition and hunger for fame propelled him to file unfounded charges.

[+] EnlargeMark Chmura and Wife
AP Photo/Morry GashMark Chmura cried tears of relief and hugged his wife when he was acquitted.

But an even worse example of malicious prosecution involves the sexual assault charges made against Chmura in May 2000 and the trial on those charges in Wisconsin. Obviously in search of higher office, Waukesha County prosecutor Paul Bucher charged Chmura with a crime that carries a mandatory prison sentence of 20 years, ignoring evidence that the accuser's hymen was intact and that a witness had told Bucher that the alleged victim voluntarily and happily walked into a bathroom where Chmura was changing clothes and came out 45 seconds later claiming rape.

Chmura was clearly guilty of poor judgment as he joined a post-prom party, drank with teens and joined them in a hot tub. You can be in the wrong place at the wrong time -- a hot tub is a prime candidate to be the wrong place, and 3 a.m. is the front-runner to be a very wrong time -- but that doesn't mean you've committed a crime. Early in the investigation, it was clear that the accuser and her friends, a clique of high school seniors who called themselves the "Sexy Bitches," had fabricated the story of assault. It did not stop Bucher from pursuit of what would have been his greatest triumph as a prosecutor. In less than an hour of deliberation, a period that included the consumption of an impressive quantity of pizza, the jurors in Waukesha came back with a unanimous verdict of not guilty.

Despite the humiliating outcome of the Chmura prosecution, Bucher ran for higher office in Wisconsin in 2006, campaigning for state attorney general on a platform of more guns. ("We need to put more guns in the hands of law-abiding citizens.") Only 40 percent of the Republican voters in the primary voted for Bucher, handing him another defeat.

Even more disturbing than overzealous prosecutors are the ones who are overwhelmed by media scrutiny and attacks from expensive and skilled defense lawyers. In the investigation of the rape charge against Bryant in Eagle, Colo., that began in the summer of 2003, Bryant's legal team repeatedly embarrassed Eagle County District Attorney Mark Hurlbert and the local police, pushing them into a series of blunders and obtaining court rulings that stunned expert observers. Discouraged and baffled by the pretrial errors, Bryant's accuser filed a civil damages case, abandoned the criminal charge during the jury selection process and later settled with Bryant.

After a series of setbacks in the Ray Lewis double murder trial in June 2000, the chief prosecutor, Paul Howard, was forced to accept Lewis' guilty plea to a misdemeanor charge with a sentence of 12 months' probation. Howard tried to explain the plea agreement, but it was clear that Lewis' attorney, Garland, had outmaneuvered him and that the plea was an admission of defeat.

[+] EnlargeRay Lewis and Ed Garland
Steve Schaeffer/Getty ImagesEd Garland, left, made Ray Lewis smile in 2000. He's been hired to do the same thing for Ben Roethlisberger this year.

The history of criminal charges against celebrity athletes is packed with some brilliant defense lawyers, some impressive prosecutors, some overzealous prosecutors and some mediocre prosecutors. Are the results any different from the results in investigations and trials that proceed without the celebrity and the intense coverage by the media? With the exception of the misdeeds of rogue prosecutors such as Nifong and Bucher, the results actually seem to fit into the normal patterns of American jurisprudence. Lawyers and judges like to say that their work produces outcomes that are rational, fair and correct. But anyone who has participated in any court case anywhere knows that the "system" does not work well enough to say that its outcomes are always rational, fair and correct.

Was the outcome of the Arenas gun case, for example, rational, fair and correct? Would any other gun-toting miscreant in the District of Columbia have walked out of the courthouse happily on his way to a few weeks of bunk beds and mac-and-cheese in a halfway house? The answers to these questions are "no" and "no." Arenas is clearly the beneficiary of some fine legal work from the firm of O'Melveny & Myers, and Judge Robert Morin was clearly impressed both with Arenas' celebrity and the generosity of his charitable endeavors.

How do we reconcile the fact that Burress is in prison, his career destroyed, and Arenas will soon return to the NBA? Yes, of course, Burress' gun was loaded, and Arenas' four guns turned out not to be loaded. But a halfway house for Arenas and two years of incarceration for Burress?

Will the outcome of the Roethlisberger investigation in Milledgeville, Ga., be rational, fair and correct? He hasn't even been charged yet, but he's already hired Garland, the brilliant attorney, to defend him. Will Garland be able to work the same magic for Roethlisberger that he worked in Atlanta for Lewis?

Here is one difference between celebrity prosecutions and routine prosecutions: We all watch the celebrity prosecution. In routine cases, we can turn away from inexplicable outcomes or accept them, but we cannot turn away from the outcomes in celebrity cases. They put the "system" in a harsh light, and its shortcomings become obvious.

We watch the celebrity cases. We analyze them endlessly. And we wonder: Isn't there a better way to do this?

Lester Munson, a Chicago lawyer and journalist who reports on investigative and legal issues in the sports industry, is a senior writer for ESPN.com.

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