Saturday, April 13, 2013

MIAMI INFRACTIONS CASE: SHOULD THE CRIMINAL GO FREE BECAUSE THE CONSTABLE BLUNDERED? This is a famous question explored by Judge Benjamin Cardozo back in 1926 (People v. DeFore, 150 N.E. 585, 587). It is one also raised in the University of Miami Infractions case. Judge Cardozo was looking at a criminal prosecution and the dictates of the U.S. Constitution. In this contest, the Supreme Court ultimately decided that evidence obtained contrary to the dictates of the U.S. Constitution would be excluded. But the Court has applied the exclusionary rule ONLY to criminal trials. And evidence DERIVED from the constitutional violation often still is admissible. Moreover, even in a criminal trial, a prosecutor can use the evidence to impeach testimony. If you lie on the stand, even unconstitutionally obtained evidence can be used to refute the lie. (You are shielded from the use of illegally obtained evidence; you are not handed a sword to go forth and say what you please, immune from being confronted with the excluded evidence.) In the Miami infractions case, Nevin Shapiro, currently serving a lengthy prison sentence, is the main source of information. The NCAA enforcement staff paid Maria Perez, a lawyer representing Shapiro, to ask questions in a bankruptcy proceeding of individuals who had refused to cooperate with them. Miami cries foul, loudly. Miami complains because: 1. Shapiro is the main complainant against it, and a convicted felon. 2. Using Perez to ask questions violated the “understanding” of NCAA members about the scope of NCAA enforcement staff investigative authority. 3. The case has taken too long, and Miami’s self-imposed penalties are enough. OK. So let’s consider. 1. The NCAA purged its allegations of any use of the testimony. This is more than the legal system requires: NCAA proceedings and penalties are not criminal trials. 2. The NCAA also purged its allegations of information DERIVED from the testimony. This is more than the legal system might require EVEN IN a criminal trial. 3. Infractions hearings are administrative. There will be no testimony under oath by members of the University of Miami or by coaches charged with violations. The Infractions Committee will not be told of the contrary statements and excluded evidence. There therefore will be no opportunity to impeach what is said. 4. Yes, Shapiro is a convicted felon. And, yes, what he says needs to be examined closely. But this is no different than what happens at trials all the time. Fact finders are expected to assess credibility. To consider motive to lie. To evaluate the internal consistency of information. To evaluate information against other information in the record. To consider the past track record of witnesses. The testimony of convicted felons is not excluded simply because they are convicted felons. Even in capital cases. The testimony of known liars is not excluded simply because they are known liars. Even in capital cases. 5. What NCAA enforcement staff did was against NCAA protocols and what the national office believes to be the understanding of NCAA members. NCAA president Mark Emmert made that clear in his press conference. But according to published reports, not denied by Miami, both Miami’s general counsel and the lawyers handling the infractions case were told by NCAA enforcement staff that the staff intended to use Perez to ask questions in the bankruptcy proceeding. And neither objected on the ground that this would violate unstated, but understood, NCAA policy. So where is Miami’s responsibility here? In legal proceedings its failure to object might be considered an estoppel to raise the issue later. 6. What NCAA enforcement staff did was contrary to legal advice of NCAA general counsel. Certainly a fire-able offense for any employer. But that’s a matter of internal management policy. 7. The investigative process took too long. Certainly the process took quite a long time. It could be that that the enforcement staff could have moved more quickly. It could be that enforcement staff investigative limits lead to longer cases. It could be that the case was very complicated and the time taken was time needed. I am not in a position to evaluate this. 8. Miami’s self-imposed penalties are enough. This one is hard to evaluate, without knowing all the evidence. That’s what the Infractions Committee is for. 9. The enforcement staff’s interest, obviously, was to obtain as much information as it could regarding the Miami violations. Hardly an illicit interest. And that gets me to the crux of the problem here. Just what is it that NCAA members want from the enforcement/infractions process? Police investigations are clearly adversarial. Police use subpoenas to get documents. They place wires on individuals and send them to extract confessions from suspects. They pay informers to infiltrate groups to get information. They lie during interviews. Aggressive law enforcement results in more arrests and more convictions. In the current scheme of things, NCAA enforcement staff are expected to act cooperatively with a member school under investigation. They do not use informers or wires. They have no subpoena power. They are not permitted to lie. In some circumstances at least, they are not permitted to use others to acquire information they cannot themselves get. Should these tactics be over the line in NCAA enforcement? Should it be over the line to use the lawyer of the chief accuser of a member school to get evidence against the school? Or to get witness cooperation on a promise to describe that cooperation to a sentencing judge? Is it wrong to base allegations, even in part, on information provided by a felon? By someone with motive to lie? By someone with a grudge against a school or coach? Are we willing to let schools and individuals skate because we don’t like the investigative techniques, even if the information is corroborated to demonstrate reliability? There is no necessarily right answer to these questions. We can impose stringent limits on what NCAA enforcement staff do. And live with schools and coaches getting away with major rules violations. And the competitive advantage gained. (NOTE. In saying all this I do not take a position on whether Miami committed the violations alleged against it. I have not seen the file, and I do not know. I simply ask what evidence and tactics should be used to develop a case.) We can let the NCAA enforcement staff operate aggressively. And live with member schools unhappy with the tactics of a national office staff that works for them. And with claims that the NCAA enforcement staff is not even-handed in how aggressive it elects to be. Adam and Eve ate that apple in Paradise. There is no perfect answer. But NCAA member schools need to decide, and be clear. I know what side I am on.