Judge Michael Pastor just gave Conrad Murray the maximum sentence allowed by California law for involuntary manslaughter — four years in the L.A. County Jail. Video footage of the entire hearing is available at CNN.com. I have no doubt that Murray's attorneys will appeal, but as I said previously, appellate courts don't make a habit of overturning sentences that are within the statutory range. Since Murray's sentence was within the statutory range, his attorneys will have to demonstrate that the judge made errors throughout the trial.
Last week, attorney Lee Davis aptly noted a French court's decision handing down a 12-month suspended sentence to cyclist Floyd Landis for his 2006 in attempt to steal documents from a French drug-testing laboratory. The documents in question related to Landis's 2006 Tour de France victory, which was stripped from him after drug tests revealed an unusually high level of testosterone in Landis's blood. Although Landis vehemently denied using performance enhancing drugs, after all hope of reclaiming his Tour victory was dead, he admitted using PEDs, and at the same time, implicated fellow former U.S. Postal Service teammate Lance Armstrong of blood doping as well.
Landis's accusations have gone quiet recently, but now that the French case is over, it's likely that he will go back on the offensive. A California grand jury is still investigating, but given the statute of limitations for the crimes he is accused of, it's unlikely that Armstrong will be formally charged, much less convicted.
Also credit to Lee Davis for reporting that 3-time Tour de France winner Alberto Contador gave testimony last week in the investigation of his alleged doping during the 2010 Tour. I had thought that this issue was dead, so I am glad that Davis reported on it as well. Apparently the Spanish Cycling Federation acquitted Contador (a Spaniard) of the doping charges, but WADA and UCI (the two organizations that matter) have yet to render a decision. If found guilty, Contador will forfeit his 2010 Tour de France victory, and will be banned from professional cycling for two years.
I am an avid cycling fan — I was more of an avid cyclist before going into private practice — so one of the legal issues I follow closely (but don't often write about) is the ongoing blood doping saga in professional cycling. For those who don't know, doping is a process of using PEDs to increase the number of red blood cells (and oxygen), which boosts an endurance athlete's cardiovascular stamina. Doping is different from traditional steroid use.
I'm a huge fan of Lance Armstrong, I even had the opportunity to ride with him in a charity ride benefitting cancer research in 2009 (see above photo), and because I'm a fan, I'd like to believe that he's always been clean. But having been around professional and semi-pro cyclists for years, common sense tells me otherwise.
In this photo, Lance Armstrong (in the Livestrong kit, of course), is shown at the helm of the lead group of Pelotonia 2009. I am riding in the third position behind Armstrong, white jersey with black sleeves, head is cut out of the picture. I eventually caught up to Armstrong, and rode alongside him for about 10 miles, before dropping back to catch my breath. Unfortunately I spent everything I had, to catch up to Armstrong — I fell out of the peloton short of the halfway point of the 110-mile ride.
On Monday I was interviewed by Fox News for a one-hour special The Crisis at Penn State, hosted by John Roberts (no, not the Chief Justice, the other one!). If you click on the image to the left, it takes you to a 20-second video promo. The special report is scheduled to air tomorrow/Saturday night on Fox News Channel at 10:00 p.m. EST.
Although we're still almost two weeks away from Conrad Murray's sentencing, I just read a great post by white-collar criminal defense attorney Charles Kreindler that makes a very salient point: We all have a constitutional right not to speak to police who are investigating a potential crime, but just because you think you have nothing to hide doesn't mean that you shouldn't exercise that right.
Murray put his defense in a bind by [speaking] to the police just days after Michael Jackson’s death. Rather than invoking his right to shut up (also known as asserting his 5th Amendment rights), Murray admitted to investigators that he repeatedly injected Jackson with the drug Propofol the very day he died. The immediate effect of those admissions was to give the investigators the information they needed to get a search warrant, even before receiving the autopsy results. And the long term effect of the admissions was to lock Murray into a story (and timeline) that he could never recover from.
We don't know whether the outcome of the trial would've been different or not, but as Kreindler pointed out, Murray's decision to open his pie-hole made it a lot easier for the prosecution to prove its case.
Perhaps even worse than Murray's ill-advised decision to speak to investigators in the wake of Michael Jackson's death was his decision to let a film crew make a documentary about him, which MSNBC aired during primetime last Friday. The documentary, Michael Jackson and the Doctor: A Fatal Friendship showed behind-the-scenes footage of Murray meeting privately with his defense team during the trial, making derogatory statements about Michael Jackson, and making personal statements such as: "I don't feel guilty, because I did not do anything wrong."
According to the Hollywood Reporter's Marisa Guthrie, more than half a million people tuned in to watch it. In case you're wondering, Murray doesn't win a prize because a lot people tuned in; in fact, it could have the opposite effect. One of the key factors judges consider in determining sentencing is the defendant's remorse, and whether they are likely to commit another crime. Although it's unlikely that Murray will commit another similar crime — since he has about a zero percent chance of keeping his medical license — given what Murray said in the film, it's unlikely that Judge Michael Pastor will be sympathetic.
Even if you believe exiled Penn State FB Coach Mike McQueary's 11th-hour revelation that he did intervene in the child rape that he says he witnessed in the locker room showers in March 2002, it still doesn't change the fact that after that incident, Jerry Sandusky continued to have access to, and continued to molest young boys for another nine years.
On Monday, I spent several hours being interviewed by Fox News, for a special report that is slated to air this weekend, and throughout the interview, the questions they kept coming back to were: "Why didn't Coach Paterno do more?" And, "Why aren't McQueary and Paterno in legal trouble over this?" As I told Fox News, I'm an attorney, not an investigator, a shrink or criminologist. I know the law, and under current Pennsylvania law, both coaches fulfilled their legal duties with regard to reporting the alleged abuse. This is because Pennsylvania is one of only a few U.S. states that don't require those who witness child abuse to report directly to police or child services.
Already, Pennsylvania legislators are taking steps to tighten the state's child-abuse-reporting statute, and there is also talk of Congress passing a stricter federal law. Currently, under the federal Cleary Act, institutions that receive federal funding are required to report all crime information to the U.S. Department of Education, but again, this does little, if anything, to stop an ongoing pattern of abuse such as the one Jerry Sandusky is alleged to have perpetrated. But regardless of whether Pennsylvania's child-abuse-reporting law was more in line with the majority of other states, are those laws tough enough to protect our children?
After giving my Fox News interview, I was curious to see what the child-abuse-reporting requirements were in my home state of New Jersey, so I looked them up, and I was a little disappointed. N.J.S.A. 9:6-8.14 makes failing to report child abuse a disorderly persons offense, which carries a maximum penalty of six months in jail, and a $1000 fine (but almost nobody gets the maximum). I'm going to go out on a limb and say that, perhaps the NJ law is appropriate, if the abuse someone failed to report was a parent who overzealously reacted to catching his teenager shoplifting—after all, when I was in school they still paddled kids in the hallways. But in the case of what McQueary is believed to have done, six months in jail and a $1000 fine isn't enough.
So the next problem with having stricter child-abuse-reporting laws, is that unless we move to a complicated, tiered approach — e.g. the way homicides are classified as murder, manslaughter, criminally negligent homicide — the laws will either be too strict or not strict enough, depending on the type of abuse. Also, these laws would need to specify exactly what conduct rises to the level of abuse that must be reported. In other words, if a school teacher sees a student with curious bruises on a regular basis, but has no direct knowledge of abuse, what is that teacher's reporting responsibility?
The McQueary incident is pretty clear cut, because he alleges that he saw Jerry Sandusky anally raping a ten-year-old boy. Turning to Joe Paterno, however, the situation is different, because from what we know now, Paterno saw nothing. So then, JoePa's next actions would have been guided by his own perception of Mike McQueary's credibility.
Joe Paterno is old school. He never had a reputation for playing fast or loose with rules. Remember Paterno's demeanor in that television promo a few years ago where all the Big 10 coaches admonished the fans to behave themselves "before, during, and after the game"? That being the case, I wonder whether the reason that JoePa didn't do more — as he wished he had done, in hindsight — is that he questioned the credibility of the young grad assistant Mike McQueary. From what I've seen of Mike McQueary, I know I do.
A lot of folks might not have even realized that Tuesday was Election Day. As an aside, I find it unfortunate that people don't take the extra few minutes to stop and vote on every election day — not just when there's a presidential race, or some other consequence of great magnitude — but I'll leave that topic alone, at least for now. Despite the fact that there weren't many high-profile races going on across the nation, there were a lot of big issues at stake in several states.
For example, Mississippi voters rejected a bill that would have changed the "meaning of life," for purposes of abortion and related issues; Ohio voters rebuked GOP Governor John Kasich's bid to rewrite state labor law, which would have substantially limited collective bargaining; and the people of New Jersey voted resoundingly to allow sports betting in the state. The only problem here is that federal law (which, of course, trumps any state's law) prohibits sports betting in all states except Nevada, Delaware, Oregon, Montana.
So why did proponents of sports betting bother to go through all the trouble of getting the referendum on the ballot? According to the Star-Ledger, State Senator Ray Lesniak (D–Union), who "spearheaded the effort for sports wagering" in NJ, plans to get another law passed authorizing the state's Casino Control Commission to issue sports betting licenses to casinos and racetracks. The idea is that once the state has such a law in place, the administration can sue the federal government to declare the federal ban on sports betting unconstitutional.
Getting an issue on the ballot isn't easy, so it seems like an awful lot of trouble to go through for something that, even if successful, depends on so many contingencies. Nonetheless, Lesniak says he's hoping to have sports betting legalized in NJ in time for the start of the 2012 NFL season. Even if it all goes smoothly, it would still be illegal to bet on college games that take place in NJ, and on NJ college teams, regardless of where they're playing.
It's probably safe to say that the Penn State sex scandal is one of the most pervasive topics in all of media right now, and since new facts are still coming in by the hour, it's way too soon to offer any meaningful analysis, but I thought it would be helpful to provide a synopsis of resources and perspectives.
1. Fellow NJ attorney Chris Fusco offers us all some wise words so as not to be swept away by the suddenness, as the story of this scandal is still in its infancy. We don't have all the facts — read Sports in the Courts Blog.
2. In his Athletes in Court blog, Tennessee attorney Lee Davis gives a pretty good reason that Penn State AD Tim Curley is the one to blame here (not JoePa). also provides a link to the 23-page grand jury indictment of Jerry Sandusky.
3. Deadspin.com is always a great resource if you're looking for the real dirt in anything sports-related. They're like the TMZ of the wide world of sports. Although there are eight alleged victims referenced in the grand jury's indictment, Deadspin says there could now be as many as twenty victims.
4. Yesterday Deadspin reported that Jerry Sandusky's 1986 National Championship ring was listed for sale on eBay. I checked the link, and the ring is not posted there, but I have no idea whether it was there and has since been removed (by the seller or even by eBay).
5. If you want to follow the scandal in real time, here is a helpful list of people to follow on Twitter, for up-to-the-minute news and developments:
@Ben_Jones88 — Ben Jones, Reporter, StateCollege.com and BlackShoeDiaries.com
@sganim — Sara Ganim, Crime Reporter, Patriot-News (Harrisburg)
@PeteThamelNYT — Pete Thamel, National College Sports Reporter, New York Times
@penn_state — Official Twitter stream of Penn State University
@jakemkaplan — Jake Kaplan, covers Penn State Football for the Philadelphia Inquirer
@bfeldmancbs — Bruce Feldman, College Football reporter, CBS Sports
First thing first: I'm not at all shocked by yesterday's guilty verdict in the case against Michael Jackson's former physician, Conrad Murray. Sure, I said before that Murray was not a criminal, and explained my reasoning, but I never said that the jury would find him not guilty of manslaughter. Given the circumstances of this case, I couldn't have predicted that — and apparently, neither could Murray's own defense team.
Murray's attorneys, Ed Chernoff and Nareg Gourjian, blamed the judge for the verdict, essentially saying that he allowed the jury to be poisoned by all of the highly prejudicial evidence. Be that as it may, the law affords trial judges very broad discretion in deciding what evidence will and won't be off limits, and because of that broad discretion, a trial court's evidentiary rulings are not routinely reversed on appeal (although this law is state-specific, I'm not aware of any state that deviates from the general rule).
The fact that evidentiary rulings are a weak basis for appeal is probably why Murray's defense team is focused on his sentencing. In that regard, the judge also has broad discretion — he can sentence Murray to any range of punishment from probation (i.e. no jail), up to four years in prison. CNN does a fairly good explanation of the factors that might play into how much, if any, jail time Murray gets, so I needn't restate.
With regard to the severity of Murray's sentence, however, there is one thing that I haven't heard any of the legal experts or media discuss: The significance of the judge having Murray remanded (taken into custody) after the verdict. Murray was technically a free man for the duration of the trial, having posted bail to guarantee his appearance at trial, but after the jury read the verdict Judge Michael Pastor revoked Murray's bail, calling him "a threat to society."
This [wa]s not a crime involving a mistake of judgment. This was a crime where the end result was the death of a human being.
Although the judge isn't bound by these words with regard to sentencing, the judge's sentiments are usually a good indication of what is likely to come. Furthermore, as with the judge's evidentiary rulings, the length or severity of sentencing is also a weak basis for appeal. In most states, sentencing is left to the trial court's discretion, and so long as the judge orders a sentence that is equal to or within the range provided by the penal code, an appellate court is unlikely to change it. NB: This is very different from the appellate rules and procedure governing the Amanda Knox appeal. For a brief but thorough explanation of striking differences between appellate review in the Italian system and the U.S., check out Georgia appellate attorney Scott Key's post Managing Expectations in the Wake of the Amanda Knox Win.
Of course it is possible that the judge only put Murray in jail to put a little fear into the man, or perhaps instill some much needed humility, but historically, judges don't lock up defendants whom they plan on giving a slap on the wrist. The irony of the judge assuming the role of God in this situation is that his name is Pastor.
A picture may be worth a thousand words, but apparently, it's not worth a half million bucks.
While we're all still waiting for the U.S. Supreme Court to hear oral argument in the F.C.C. v. Fox case later this term (see earlier posts here & here), we finally have an answer to a related question concerning alleged indecency in broadcasting: Nearly eight years after Janet Jackson's infamous wardrobe malfunction at Super Bowl XXXVIII, the Third Circuit Court of Appeals has ruled that the Federal Communications Commission (FCC) acted arbitrarily when it fined CBS more than half a million dollars over Jackson's partially exposed breast.
The issue in this wardrobe malfunction-case is closely intertwined with the issue in Fox—i.e. whether the FCC's punishment of the networks for brief and spontaneous ("fleeting") indecency was a departure from the indecency rules that were in place already at the time these incidents took place. If so, the FCC's rules were operating ex post facto, which is a Latin phrase given to penal laws that are applied retroactively (ex post facto laws are prohibited by Article I, section 9 of the U.S. Constitution). Since we're not dealing with criminal law here, the issue is due process, which requires that parties receive fair notice of all rules or laws before the government can deprive them of property.
The difference between this case and the Fox case is the subject matter of the indecent material. In Fox, the objectionable material was merely the word fuck; here, we're dealing with nudity, albeit partial and brief.
CBS contends the FCC‘s indecency regime treated words and images alike, so the exception for fleeting material applied with equal force to words and images. The Commission rejects this assertion, contending its prior policy on fleeting material was limited to words alone. Although the FCC acknowledges it had never explicitly distinguished between images and words for the purpose of defining the scope of actionable indecency, it contends the existence of such a distinction was obvious, even if unstated.
But the federal appeals court found too many inconsistencies in the manner in which the FCC had chosen to enforce its indecency regulations, which led the court to conclude that CBS didn't have adequate notice that they would be fined for the so-called wardrobe malfunction. [download the court's decision PDF]. The irony, however, is that it wouldn't have mattered if CBS had prior notice of the rule, because they claim that they didn't plan the incident. If CBS was only the messenger, so to speak, should they be the ones who are punished for the actions of performers who appear (live) on their network?
Over the weekend, ESPN reported that the West Virginia Mountaineers were heading to the Big XII Conference, just weeks after Syracuse and Pitt announced their defection from the much-maligned Big East. Yesterday, the West Virginia Univ. Board of Governors filed a six-count lawsuit [PDF] against the Big East, in Monongalia County Circuit Court (WV), which essentially accuses Big East Commissioner John Marinatto of running the organization into the ground, to the point where the conference is no longer viable or competitive.
This lack of leadership, breach of fiduciary duties by the Big East and its Commissioner, and voting disparity between the football and non-football schools resulted in the Big East football conference no longer being a viable and competitive football conference. Additionally, upon information and belief, [it] is expected by WVU and others that the Big East will lose its [automatic BCS bid]. Accordingly, the Big East Conference and its Commissioner ... breached their contract [with] WVU and nullified and voided the Bylaws.
This is really great stuff. What WVU is arguing is that despite the fact that they entered into a contract with the Big East and agreed to be bound by its rules and regulations (i.e. Bylaws), that they shouldn't have to fulfill their contractual obligations to the conference because Marinatto failed to fulfill his obligations to the organization and its member institutions.
By suing the Big East instead of waiting for the Big East to sue them, WVU has seized home-field advantage: They get to fight their fight in West Virginia state court, rather than a Rhode Island court, or federal court. Not surprisingly, Marinatto released a statement saying, "a contract is a contract," and basically threw the bullshit flag, but based on the facts alleged in the complaint, relative to the facts I know, I like WVU's chances. Kudos to attorneys Stephen M. LaCagnin, Seth P. Hayes and the Morgantown, WV law firm Jackson Kelly.
Last week, attorney 
