The Sports & Entertainment Law Playbook

You might remember the story about the Woodbridge, NJ cop, and New York Rangers fan, who was badly beaten outside of Geno's Steaks in South Philly. The beating came on the heels of the 2012 Winter Classic, which is an annual, regular-season NHL hockey game that is played outdoors. This year's installment featured the New York Rangers and Philadelphia Flyers at the Phillies' Citizens Bank Park (f/k/a Veterans Stadium). Shortly after the beating incident, the cop, Neal Aurrichio Jr., lawyered up, by hiring New Jersey's most notorious plaintiffs' trial attorney, Ray Gill.

While that case is still getting started, a Bucks County, PA firm filed a class-action lawsuit against the Philadelphia Flyers owner, Comcast Spectacor, on behalf of all Flyers season-ticket holders. The basis of the suit is that the team misled season ticketholders by offering them tickets to all 41 regular-season home games, but then withholding tickets to the Winter Classic—which, by definition is a regular-season home game.

Comcast has chosen to label the suit as "frivolous," however, a Philadelphia small-claims court already awarded another season ticketholder $1,300 in damages, for essentially making the same allegations. An attorney from Stern & Eisenberg, who filed the class-action suit in Mercer County Superior Court argues that if the claim was so frivolous, why didn't Comcast appeal the decision? 

If the case was so frivolous, why didn't Comcast Spectacor choose to use the appeals process and fight it tooth and nail? This is a team who tried to get as much money as they could. That's their right as a business. But they angered a large part of their fan base in the process. They gave customers no choice.

This was a regular-season game, in Philadelphia, on regulation ice. It should have been a part of the 44-game package that fans paid for.

A reporter asked why Stern & Eisenberg decided to file the class-action suit in New Jersey, and although there could be a number of reasons behind that, the most compelling one has to be that New Jersey's consumer protection laws are some of the toughest in the country, and so long as one of the named plaintiffs is a resident of Mercer County, New Jersey, jurisdiction over an out-of-state defendant is proper.

Credit:

Frank Seravalli (@DNFlyers) Flyers beat writer for the Philadelphia Daily News.

Earlier:

Perpetrator of Cheesesteak Attack has Rap-sheet Longer than Richie Aprile

Rangers Fan Beaten Outside of Geno's Steaks: Is it His Own Fault for Eating a Misteak?

For various reasons, I've deliberately stayed away from commenting on the whole George Zimmerman/Florida stand-your-ground case, but after last night's news that the special prosecutor has charged Zimmerman with second-degree murder, and seeing and hearing the way the media has reported on it since, I felt the need to chime in.

Much is being made out of the prosecutor's decision to charge Zimmerman, specifically, with second-degree murder. Don't be disillusioned by this—it's really insignificant, and here's why: If you've read any of what I've written about prosecutors overcharging crimes, this shouldn't come as a shock to you. The prosecutor in this case charged Zimmerman with second-degree murder because it's the highest crime that she could charge him with. Period. What that means is that according to the facts that are now known (or believed), it's possible that a jury could find that when Zimmerman shot Trayvon Martin, he acted with total disregard for human life. The fact that he is charged with murder does not mean that a jury could not convict him of a lesser crime (e.g. manslaughter, or some version of negligent homicide).

I'm not saying that he is guilty of any of the above (nor am I saying that he's not guilty!). When someone who is charged with murder claims self-defense, the prosecution is still required to prove the elements of murder beyond a reasonable doubt, but once they do that, the burden falls on the accused to demonstrate that he acted in self-defense. The jury then gets to decide whether he acted reasonably under the circumstances. If they do find that he acted reasonably, they can convict him of a lesser crime, or acquit. If, on the other hand, the prosecutor had only charged Zimmerman with manslaughter, then that would be the most serious crime that he could be convicted of. In reality, charging Zimmerman with murder was probably just a way to leverage a plea (to a higher degree crime).

Regardless of the prosecution's motives, this is not the time to scrutinize the investigation. That time has passed: Trayvon Martin's family wanted an arrest, and they got one. Does this mean that justice has been served? Hardly. The case is far from over, but now it's time to let the prosecutor, defense counsel, and our criminal justice system do their jobs.

Note: For a brief explanation of Florida's stand-your-ground law, check out Hayes Hunt (@HayesHunt) at From the Sidebar.

I don't know what Dan Abrams, Nancy Grace, and Mark Geragos were saying about the Dharun Ravi trial, and I didn't need to know, because I was there. Granted I didn't see the whole trial from opening statements to closing arguments, but I did see direct and cross-examination of most of the key witnesses, I heard key arguments held outside the presence of the jury, and I even had opportunities to discuss the case with Dharun's attorneys. So in case the so-called legal experts haven't yet said so, I am saying it—the jury's finding Dharun guilty is an aberration, and a setback for the American justice system.

Although the evidence of privacy invasion may have been clear-cut, the jury's verdict on so-called bias intimidation was surprising to many observers of the trial. In part, that's because Ravi didn't seem like the archetypal anti-gay bully.

The prosecution didn't present evidence that he had made intimidating comments directly to his roommate, for example, or that he disparaged gays when talking with his friends.

To anyone who still believes that the investigation and trial of Dharun Ravi was not about Tyler Clementi's death, you are kidding yourself, because since Clementi jumped to his death from the George Washington Bridge in September 2010, the Middlesex County Prosecutor's Office has been on a witch hunt. They were on a mission to crucify the boy who made gay jokes to his friends, and then took things too far by spying on his gay roommate with a webcam. Those were two separate events, but to win their case, the prosecution had to prove not only that Dharun did them, but also that they were inextricably intertwined—that one caused the other.

The irony here is that by being first-generation Indian, Dharun himself belongs to a commonly stereotyped class of people. It's in the movies, and even in cartoons like the Simpsons; we all make jokes about Indian and Middle Eastern immigrants—their accents, choices of jobs, and the distinct aroma that tends to follow them around like the cloud of dirt that followed the Peanuts character Pig-Pen. Tyler Clementi even posted such comments about Dharun's family, saying that they probably owned a Dunkin Donuts. 

I was deeply disturbed when I heard the verdict. By convicting Dharun of the serious crimes that carry a potential prison term of ten years (which would most likely be followed by his deportation) the jury has destroyed a life, in addition to the one that was destroyed when Clementi committed suicide. But this is not quid pro quo, because it's unfair to assume that Dharun caused his roommates suicide, moreover, it would be unconscionable to conclude that Dharun intended it, or even that Clementi's suicide was a foreseeable consequence of his stupid prank. But intent and foreseeability are the key elements that must be present (and which the prosecution must prove beyond a reasonable doubt) to hold a person criminally liable for homicide.

As I said before, the criminal statutes that Dharun was convicted of leave the judge with very little discretion over sentencing. He would be facing far less prison time (if even at all) if he were convicted of manslaughter. If the Ravi verdict stands, it will pave the way to potentially criminalize conduct that most people routinely engage in every day—stereotypical hyperbole and other ethnic-related jokes—regardless of whether those comments are private, semi-private, or even among friends.

Assuming that Dharun's defense team files an appropriate post-trial motion, the presiding judge, Honorable Glenn Berman still has the option of setting aside the jury's verdict. I'm not counting on that. It's more likely, though, that at least a portion of Dharun's conviction could be reversed on appeal. If all that fails, perhaps Governor Chris Christie will step in to see that the integrity of our justice system is preserved.

Last week, a Virginia jury found former University of Virginia lacrosse player George Huguely guilty of murder, but found him not guilty of first-degree murder. I'm not at all surprised by the verdict, and my purpose in posting this follow-up is not to call attention to my original post on the subject; rather, one of my colleagues alerted me to an evidentiary issue in the trial, which is something that I haven't heard discussion of in mainstream media coverage, and one that probably had a significant part in the outcome of the trial.

According to Tennessee criminal defense attorney Lee Davis (@LawyerTN), the trial judge substantially limited the testimony of the defense's key expert witness, Dr. Ronald Uscinski, because of a mistake that Huguely's defense team committed when they copied Dr. Uscinski on an email summarizing the testimony of the prosecution's key expert. The judge ruled that Huguely's attorneys violated Virginia's "Rule on Witnesses." Apparently the Commonwealth of Virginia doesn't have their own version of the Federal Rules of Evidence, so they loosely follow the federal rules (and make their own rules up when they feel like it). Virginia's so-called Rule on Witnesses is a variation of Rule 615 of the federal rules, which is designed to prevent trial witnesses who haven't yet testified from changing their testimony because of testimony given prior to theirs. Usually Rule 615 is applied to fact witnesses—people who testify about what they saw or heard, which is relevant to the crime or issue at trial.

Expert witnesses, however, aren't there to testify about facts, or what they saw or heard—their purpose is to provide the jury with scientific evidence that supports one side of the case or the other. Experts typically write reports prior to trial, and the reports are provided to the other side for both scrutiny and trial preparation, so it isn't likely for an expert to change their testimony because it would undermine their credibility if they testified in a manner that was inconsistent with what they previously wrote.

Although my analysis means nil to Huguely at this point in time, it could be a solid foundation for him to appeal his conviction and get a new trial. Ordinarily evidentiary matters aren't good bases for appeals (see, e.g., previous posts here & here) because of the incredible deference that appellate courts give to a trial judge's discretion in whether to admit or exclude evidence, but in this circumstance the judge's decision to exclude portions of Dr. Uscinski's testimony may have deprived Huguely of a fair trial. If so, the judge's evidentiary ruling becomes a constitutional question, or one of "structural error," which garners much higher scrutiny from the appellate court.

This was precisely the situation in a fairly recent decision by the U.S. Supreme Court in which they unanimously reversed the death sentence of a South Carolina man who was convicted of murder after the trial court—on hearsay grounds—refused to allow him to introduce evidence that another person committed the crime. (Even Justice Alito let that guy off the hook!). When I worked for the Court of Appeals of Ohio I drafted a similar decision, which also went one step further and found the state evidentiary rule unconstitutional. The Ohio Supreme Court eventually disagreed as to the constitutional question, but our ruling, for the most part, remained intact.

I'm not intimately familiar with Virginia law, but if I were a member of Huguely's defense team I would be looking to that line of cases for guidance, as well as considering a possible claim for ineffective assistance of counsel.

Yesterday in Charlottesville, Virginia Circuit Court, George W. Huguely V (yeah, the fifth) pleaded not guilty to first-degree murder. Huguely is the former University of Virginia lacrosse player charged with murdering his ex-girlfriend, Yeardley Love, also a UVA lacrosse player, in May 2010. According to most reports, Huguely broke down Love's bedroom door and the two had a heated argument, which became violent, and ended only after Huguely slammed Love's head against a wall. Love's official cause of death was blunt force head trauma.

Huguely was arrested almost immediately after Love's roommate found her face down in a pool of her own blood, and he hasn't denied any of the material facts. So why is he pleading not guilty when he's more or less already admitted that he killed her? Although the answer to that question is simple—regardless of whether he admits to killing her, he says it wasn't premeditated—it opens up a controversial discussion over the way that prosecutors charge crimes today.

Historically, the definition of murder is "the unlawful killing of another human being with malice aforethought." Over time the term first-degree murder evolved as the premeditated killing of another human being. This premeditated or first-degree murder has typically been the crime for which the death penalty was sought. In the modern era the death penalty wasn't given for non-premeditated murders. Regardless of these so-called common law definitions of murder, they might as well not exist today because each of the fifty United States has replaced the common (widely accepted for hundreds of years) definition of murder with its own complex, statutory definition.

In addition to each state's independent definitions of crimes, each state now has its own interpretation of the terms that makeup the definitions of their criminal code. The end result of what has become roughly three decades of "improving" the criminal justice system is that today there are many more convicts being sentenced to life (and life-without-parole) sentences, and many others are serving sentences about three times as long as they would have if they'd committed the same crime 30 years ago.

Thirty plus years ago, a young man [first-time felon] would have been sent to a reformatory in hopes that he could be rehabilitated. He would have been eligible for release on parole after 38 months, no matter how many…felonies he had committed. The…parole authority could keep him in custody until it felt he was no longer a danger to society, but it could release him after less than four years of incarceration if he rehabilitated himself or was rehabilitated. [But America] has given up on rehabilitating inmates via reformatories.

Until relatively recently, Ohio had a law on the books which indicated that no matter how many…felonies a person committed, [they] could be released on parole after serving 15 years, possibly less for good time. The legislature wiped out that statute.

* * *

I have a great deal of concern that we are warehousing for life a large number of young men, especially the poor and minorities. I have even more concern that [we] have given up on the whole concept of rehabilitation.

Those are the words of my longtime mentor Judge Gary Tyack of the Tenth District Court of Appeals of Ohio, which is an excerpt from his dissent to a majority opinion that affirmed a 70-year-sentence for a teenager who was convicted of a series of home-invasion burglaries.

Obviously George Huguely is neither poor nor a minority, nor did he come from a broken home, or grow up under any of the other so-called mitigating circumstances that typically lessen the severity of a criminal sentence. There is an even bigger problem with our criminal justice system today, and it isn't the fault of the courts. The problem is the constant pressure that voters put on legislators to be tough on crime, which translates into passing laws that criminalize behavior that once wasn't a crime, or increasing the penalty for the commission of crimes. Once these tougher laws go into effect, it's the prosecutors that foul everything up, by overcharging, which they do in an effort to leverage guilty pleas that result in "fair" sentences. But who is to be the ultimate arbiter of what is fair?

Based on the statements of George Huguely's defense team, it sounds like they would concede that he is guilty of either murder or manslaughter. If the prosecutor charged Huguely with either of those, they would likely get him to plead guilty, and he'd be sentenced to somewhere between five and twenty-five years in prison. By charging him with first-degree murder, however, Huguely is facing life in prison. There's no incentive for the prosecutor to charge appropriately, so they treat their jobs like credit cards—they charge 'em up as high as they can go.