Brady, Patriots Rebuttal, and Burdens of Proof

I like Tom Brady, but his and the Patriots’ handling of Deflategate has become sad.   Their recent “rebuttal” to the Wells report is indeed, as David Waldstein wrote in the New York Times, a foray into farce.

The rebuttal is filled with improbable explanations and thin attacks on the credible Wells Report.  As a criminal defense lawyer, I normally try to withhold judgment and give the benefit of the doubt.   Some improbable explanations are true.  Strange coincidences happen. People jump to conclusions about what they think they saw or think they know.  People lie.  It happens.

But still I chuckled at the “smoke and mirrors” defense presented by the Patriots.   I had felt some pity for Brady in this moderate affair; his pleasant cockiness has been blunted by this scandal, he seems more normal than ever.  He’s still defiant, but when talking about the scandal he shows anxiety and discomfort.   It seems he just wishes it were over, but he’s in too deep to start taking any responsibility, and so the farce continues.   This Patriots rebuttal caused me to lose what little concern I had for poor Tom Brady.

The Patriots rebuttal just feels silly.  Sometimes if it walks like a duck, it really is a duck, and here Tom Brady is a duck.   But my attitude about this really comes from what’s at stake.   In criminal cases, a person’s liberty and life are at stake to a far greater degree than most any civil case.    With those high stakes in mind, and the inevitable error rate of the factfinding process, it is critical to put a high burden on the prosecution to reduce the risk of false convictions.   In criminal cases, that burden is “proof beyond a reasonable doubt,” and it is considered an essential element of due process. In re Winship, 357 U.S. 358 (1970).    With the stakes so high, even far-fetched defenses must be entertained by an accused’s lawyer and the jury.   Truly ridiculous defenses won’t be entertained, but if in a criminal case the client tells his attorney that “deflator” didn’t mean football deflator, but instead meant “a guy trying to lose weight”, perhaps, every so often, that’s going to be true.   Unlikely, but possible, and the jury would need to hear a lot more evidence to know if it’s all smoke and mirrors or if there’s reasonable doubt about what it meant.

But in civil cases, no one’s going to jail.  In this civil case, it is a lot of millionaires fighting over millions of dollars and pride.  But even a huge cheating scandal in sports doesn’t carry the stigma of a single misdemeanor criminal conviction, so we’re talking about relatively modest stakes for these people.  In civil cases, the burden of proof is typically a “preponderance of evidence,” meaning here that the NFL must prove something is more likely than not true.    That lower standard of proof is appropriate—the cost and practical difficulties of proving things beyond a reasonable doubt is not appropriate for civil cases, just as it wouldn’t be appropriate for individual decisionmaking—that level of confidence is rare in any factual dispute. Legitimate redress for injuries and rights violations would rarely be achievable with such a burden.

In the context of this lower burden of proof, where it is not necessary or appropriate to chase every rabbit down every hole to honor the high stakes of the inquiry, the Patriots rebuttal is absurd.  Why do they waste our time?  Do they think we are dim?   If they have more than 1 small good argument, let me hear it.  But this stuff?  In a criminal context, I’d feel different.  I might still convict Tom Brady of being “at least generally aware” of the deliberate ball deflation, but I’d humor the far-fetched defense longer and more carefully, to make sure I hadn’t jumped to a conclusion.

That’s all I ask jurors to do in a criminal trial: sometimes I have a strong defense that makes more sense than the prosecution’s case, and I want the jury to acquit.  Other times I have a plausible defense but one that requires less probable interpretations of the evidence, or requires the jury to understand that a witness was mistaken, exaggerating, or lying.  In those types of cases, I still want an acquittal but I don’t expect to be able to convince the jury that my theory of the case is absolutely correct.  Some may think so, others may not.   What I want is the jury to honor the high stakes of the situation with an acquittal based on the high burden of proof required in criminal cases.  And proof beyond a reasonable doubt is not met simply because a situation “looks” bad and the accused “probably” did it.  But Tom Brady probably did it, and this isn’t a criminal case.  Tom Brady should own up to his role in Deflategate, or at least ask the Patriots to cease “rebutting” the obvious.