Commentary

Roethlisberger case: Too many doubts

In the end, prosecutors were faced with too many uncertainties to move forward

Originally Published: April 9, 2010
By Lester Munson | ESPN.com

ESPN's Kelly Naqi is reporting that, according to her sources, authorities in Georgia have decided they will not charge Pittsburgh Steelers quarterback Ben Roethlisberger with sexual assault or any other criminal violation. The announcement will be made at a news conference at 2 p.m. ET on Monday. The decision comes after a four-week investigation that began when a 20-year-old college student claimed that Roethlisberger assaulted her in a bathroom in a drinking establishment in Milledgeville, Ga. The decision to decline to file charges raises legal questions. Here are some of the questions and their answers:

What might have been the factors that caused District Attorney Fred Bright to conclude that there was no case against Roethlisberger?

Although the precise reasoning behind Bright's decision not to file charges will not be known until his news conference on Monday, it is certain that he analyzed the evidence gathered by the police on at least three key issues: the accuser's veracity, the accuser's drinking the night of the alleged assault and the accuser's injuries. To determine her veracity, the police no doubt checked every detail of the accuser's story in interrogations of her friends and others who were in the tavern.

They also examined the cramped bathroom and reviewed other circumstantial evidence to determine whether it was consistent with the accuser's story. The police and the prosecutor reviewed the records of the accuser's visit to the emergency room immediately after the incident, looking for indications of intoxication and checking on the accuser's claims of injury. Any evidence that contradicted the accuser's story or showed that she was intoxicated would push the prosecutor toward his conclusion that there is not enough evidence to charge Roethlisberger.

Roethlisberger's attorney, Ed Garland, also was investigating the incident. Was his investigation a factor in the decision not to file charges?

In all likelihood, yes. In addition to his brilliance in the courtroom, Garland has the capacity to gather evidence that even the best of police detectives have missed. He demonstrated his investigative skills in his defense of Ray Lewis against double murder charges in 2000. Garland not only gathers important evidence, he presents it in a manner no prosecutor can ignore. We might never know exactly what Garland turned up in his investigation, but we can be reasonably sure that Bright reviewed it carefully as he made his decision.

How important was alcohol consumption in the decision not to charge Roethlisberger?

We don't yet know the details of the accuser's drinking that night. Nor do we know the specifics of Roethlisberger's drinking. We may learn some of these details at the news conference on Monday. But we do know that, generally, prosecutors are reluctant to file charges in cases such as this one when the accuser has been drinking.

They are especially reluctant when there is evidence of intoxication. Did blood tests in the hospital show that the accuser was intoxicated? Did her story of the incident show signs of brownout or blackout? If the details of the incident are caught in a fog of intoxication, a prosecutor will decide against filing charges.

Tapes from security cameras were erased. The police did not ask Roethlisberger for a DNA sample. How important are these developments in the decision not to charge Roethlisberger?

It appears that they were not important. On Monday, prosecutor Bright might explain their roles in his decision. But none of the 12 cameras in the saloon was aimed at the bathroom in question. Even if the tapes had been preserved, they would not have added much to the case.

The decision not to request DNA was based on what the police knew about the incident. If there had been any chance that there would be DNA evidence, they would have demanded and received DNA from Roethlisberger. The fact that they decided not to make the request indicates that it would not have been a major factor in the prosecutor's final decision.

Is it over? Will there be anything else? Does Roethlisberger have any other concerns from this incident?

The worst is over for Roethlisberger. He will not be charged with a crime and will not face an embarrassing trial and the possibility of jail. But there could yet be more to come. The accuser might wish to make a civil claim against Roethlisberger for money damages. It is possible that she and her attorneys have already been in negotiations with the Roethlisberger legal team about a monetary settlement. Roethlisberger's wealth would allow him to make a private settlement with the accuser, with her pledge that it would never be made public.

If there is no private settlement, the accuser could do what Andrea McNulty has done in another incident, this one in Reno: sue Roethlisberger and present her claim to a jury. The burden of proof in a civil case is less than the prosecutor's burden of proof in a criminal case. She need prove only that her story is more probably true than not true, but the prosecutor must prove guilt beyond a reasonable doubt.

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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