Here’s a law-focused Q&A based on the Deflategate legal questions I get from journalists and on Twitter (@StephStradley).
(Update: This was written July 30, 2015. There is a follow up post that is more focused on Tom Brady – NFL settlement issues.)
Why do you know about this stuff?
I have written about the Texans and the NFL since 2006. I’ve been a lawyer most of my adult life, clerking for large law firms, working in-house for large corporations and then on my own.
After Roger Goodell became commissioner, there was a greater reader demand for informed discussions about player discipline issues, and I’ve written on that subject many times. I’ve written extensively about Bountygate, and some of the legal filings I’ve collected relating to that will have similar arguments to the current controversy.
For those who care of such things, I am a Texans fan and definitely not a Patriots fan.
The purpose of this is to have one place I can direct people to when I get repeat questions about these things.
I also suggest reading the writing of lawyer Michael McCann at Sports Illustrated. He does a great job of quickly summarizing what is going on and trying to explain it to a broad audience. If you haven’t read it already, I suggest reading, “Deflategate: What will happen if Tom Brady, NFLPA take Deflategate suspensions to court?“
Why should fans other than Patriots fans care about this?
Legal process issues aren’t PR interesting but they are important whether you are talking about league discipline, the criminal justice system, or any other process that has a potential to harm people’s lives, jobs, reputations.
Goodell often talks about “getting this right” and the fundamental part of that should be, but isn’t, fair process.
In sum, if the league can use an unfair process in punishing both the Patriots and Tom Brady, they can do this to any team, player and fanbase. They already used a terrible process with Bountygate, but unless you were a Saints fan, you probably didn’t notice or care.
Dallas owner Jerry Jones basically concedes that possibly unfair punishments are just the cost of doing business. Because Roger Goodell has a tough job and stuff.
Doesn’t the most recent Collective Bargaining Agreement (CBA) allow Roger Goodell to be completely unfair, given his role of investigator, judge and appellate judge?
No. No. No. No. Please people stop saying that. It is a commonly held view that is often parroted by people who should know better.
The powers that the commissioner has are not new. These were in the previous CBAs. It appears as though after the CBA was finalized, Goodell has substantially increased punishments in ways that the NFLPA likely did not contemplate. The Bountygate mess is the first example of that in 2012.
That said, the NFLPA is not arguing that the CBA process is unfair but rather that the NFL failed to follow the CBA and NFL rules as they are written and understood under labor law.
Businesses and unions negotiate CBAs to have a common understanding of their business arrangements. Every single situation can’t be baked into a these agreements, so labor law fills in the blanks for when disputes happen. Labor law is a very specialized area of the law, and the labor law involving sports and the NFL is even more specialized.
To simplify, the NFLPA makes the general argument that both the fairness procedures in the CBA and NFL rules and just basic “industrial due process” weren’t followed. That is, the NFLPA didn’t have to build in a lot of detailed technical fairness procedures into the document because all union members receive these protections under CBAs. Industrial due process is that bare minimum standards of due process that are allowed all disciplined employees in arbital proceedings.
As a part of this, the NFLPA argues that the NFL failed to follow “the law of the shop.” That is, that the NFL failed to follow the custom and practice that they’ve used in the past.
Given the language in the Tom Brady final ruling, it looks like the NFL will be arguing that this is a mostly unique situation that they are entitled to judge uniquely. That courts are supposed to give final arbitration decisions great deference and should not overrule them.
This is Tom Brady’s fault. He should have just not cheated and then this wouldn’t have happened, right?
Despite all the blahblablee words in the Wells Report and the NFL rulings, two things are clear:
1. No Direct Evidence of Cheating. There is no direct evidence that Tom Brady preferred footballs deflated below the 12.5 PSI permissible levels. None.
2. Wells Report agrees with this. Even the Wells Report does not definitively say Tom Brady cheated. It concludes: “it is more probable than not that Tom Brady (the quarterback for the Patriots) was at least generally aware of the inappropriate activities of McNally and Jastremski involving the release of air from Patriots game balls.”
This allows for the view that the events may not have happened as the Wells Report infers.
The Wells Report contains a lot of inferences about events, and basically says three people are liars. The final NFL ruling in its essence concludes that Tom Brady lied under oath.
The Patriots’ Context Report does the lawyer’s equivalent of freaking out about the Wells Report conclusions, by putting the following in all caps: “NOT A SINGLE TEXT REFERS TO DEFLATING FOOTBALLS TO A LEVEL BELOW REGULATION, TO DEFLATING FOOTBALLS AFTER THE REFEREE’S INSPECTION, OR TO ANY DIRECTIONS FROM MR. BRADY — OR EVEN ANY BELIEF THAT TOM BRADY WOULD PREFER TO USE BELOW REGULATION FOOTBALLS.”
Assume for a second that Tom Brady and all Patriots personnel were innocent of all of this. That what happened in the game was normal ball deflation due to difference in temperatures, conditions and ball use. Assume that they did nothing wrong, and it was the initial wrong reports that encouraged the league to do an investigation.
What evidence is sufficient enough to prove that negative to the satisfaction of the NFL and Ted Wells? Testimony under oath was insufficient. Multi-hour questioning in front of many lawyers denying it was insufficient. Studies involving ball deflation and noting agreed problems with accurate ball measurements was insufficient.
I can’t fathom any type of evidence that would have been persuasive to Ted Wells and the NFL.
Did Tom Brady and Robert Kraft get bad advice from their lawyers about cooperation and sharing phone information?
I hate to second guess. When I look at these situations, I try to think of what the parties knew at the time this was going on. Not looking in retrospect.
I do this because I’ve been there. What advice should I give my client?
Often, the correct course of action is not obvious, and it is hard to anticipate what the opposition will do, particularly in unique situations.
From both the Wells Report and the Context Report, it appears as though the Patriots and Tom Brady gave ample and lengthy cooperation, and believed that they did.
And Ted Wells agreed. Mostly.
Ted Wells in his presser said that the Patriots provided him “with substantial cooperation” with one exception involving a dispute on re-interviewing a witness.
He also added that Tom Brady “answered every question I put to him. He did not refuse to answer any questions in terms of the back and forth between Mr. Brady and my team. He was totally cooperative.”
Wells added that he wanted to see the contents of Brady’s phone, and said, “Keep the phone. You and the agent, Mr. Yee, you can look at the phone. You give me documents that are responsive to this investigation and I will take your word that you have given me what’s responsive.”
You can tell from the Wells Report, there were the normal and natural disagreements about the appropriate breadth of discovery. (“Discovery” is the general term in law that refers to the information that is required or should be shared between the parties).
In civil and criminal court contexts, sometimes if these discovery disputes get heated enough, the parties go to the judge to resolve it. You don’t have that in the context of this sort of investigation. And the CBA and other documents don’t spell out what constitutes cooperation.
In my opinion, rightfully, Tom Brady declined to offer the contents of his private phone. It appears he was advised by his agent/attorney to do so, and in the union context, it is peculiar to even ask for all electronic communications from private devices.
It appears as though Brady was upholding his union rights pursuant to counsel advice, and frankly given the NFL’s track record of PR-oriented leaks, I think from a privacy perspective that is wise. In addition, the NFL had immediate access to the non-union equipment personnels’ phones, and any texts with Brady could be found on there and were. Brady’s attorney explains here about the phone and discovery dispute.
I do not think the attorneys anticipated that any part of the punishment would be for a lawyer discovery dispute, one where the law likely favors their position.
The NFLPA in its filing to vacate the ruling focuses greatly on the lack of notice of many things:
1. That the NFL was going to use a “general awareness” of alleged misconduct of others as a basis for punishment.
2. That suspensions were even possible given that the player policy only mentions fines.
3. That they were subjecting Brady to the Competitive Integrity Policy, that applies to clubs not players.
4. That they intended to suspend Brady for non-cooperation when a fine is the only penalty that has ever been upheld, even if non-cooperation were true.
In sum, the Wells Report is peculiar. Hard to anticipate what Wells was going to think were Big Fat Deals in forming his opinion.
That happens a lot in legal situations. You think the fact finder is interested in one thing, argue that, and then they rule on something completely different that you didn’t anticipate.
What isn’t common is to not know what rule you are accused of violating, what the standard of knowledge is, and what the punishment range is for that offense.
I think at the time they were trying to cooperate, Brady and the Patriots had no idea that the conclusion of the report would be a collection of random adverse inferences suspendered with a non-cooperation claim.
I don’t know. Brady destroying his phone looks really bad for him.
Perhaps from a PR perspective. Looks like more of a “bright shiny object” distraction or sort of a “skunk in the jury box” of public opinion.
It’s odd that the NFL is basing any of their disciplinary ruling on this given that at the time of the Wells Report, Ted Wells said he never was interested in the physical phone. And that he was willing to take Brady and Yee’s word about whether there were responsive documents contained in it.
As far as bright shiny object topics go, it is worth noting that Roger Goodell did not provide his private phone in the Mueller investigation. [pg 7, pg 47]
Brady would likely lose his case on the doctrine of “spoliation of evidence,” yes?
I am aware of this article claiming that getting rid of the cell phone was spoliation of evidence. I disagree with it.
First of all, Wells said he didn’t want the phone and was okay with representations that there was no relevant information on the phone. Doesn’t sound like a big deal. Doesn’t seem at that time that after all that cooperation, the content of a private phone that Wells was not legally entitled to have would have been the key to most of the case against him.
The focus of the future litigation is likely going to be on process not so much the fact details. Part of process is reasonable notice of the issues and a neutral arbitration.
Was Brady made aware that the phone contents were going to be made a big part of a significant punishment? Would he have been required to maintain his computer data? Process issues.
The NFL has a history of trying to move the goal line on why the players are being punished.
This isn’t a civil or criminal claim. It is an investigation with very few boundaries other than labor law ones.
The evidence isn’t *spoiled* anyway because they have the texts already and were offered an easy way to get texts from team sources if the NFL chose to.
How could Robert Kraft trust the system when other players and teams have got hosed by it before?
For the same reason that most people love tough-on-crime legislation until they get accused of something and find the meat grinder of a system to be unfair.
People notice things that affect themselves more than things that affect others.
Anytime that there is league discipline, one fanbase tends to see all the unfairness with the system, and the other 31 laugh and point. There were significant problems with the Bullygate and Bountygate investigations, but unless you are a part of the Dolphin or Saint fanbases, you likely didn’t notice them. Who is going to stick up for Richie Incognito on anything? Nobody is pro-bounties. Unless you have a reason to notice the problems with process, you likely have no idea.
Important thought here: You want fair process in the world. Even relating to people or causes or actions you hate. This isn’t a novel concept, but it is often kicked aside for expediency reasons.
Read this Drew Brees quote about the Bountygate process. Change the names and you could use it for Deflategate easily.
Why didn’t Robert Kraft file suit?
Part of it was his stated belief that he trusted the appeals system. I think another part of it is that the team’s legal options aren’t particularly good. The league is set up this way on purpose so that teams don’t file suit every time they disagree with the commissioner.
Brady has better legal options due to his union rights.
Kraft already fought it more than most teams. The Saints cooperated, the owner didn’t publicly criticize the process, partially with the belief that they were going to get their 2nd round pick back, but for reasons Goodell did not explain, that didn’t happen.
The Patriots cooperated, but that cooperation was deemed not enough, and they were basically punished for a minor (imo) discovery dispute.
Basically, when you are on the wrong side of the commissioner’s office, I am not sure what you are supposed to advise your client because all of the options are terrible.
Goodell claims he wants to know more information, so the Patriots put together a “Wells Report In Context” website. They didn’t call it a rebuttal but that was exactly what it was. Why did they phrase it that way?
Because history shows the commissioner doesn’t like anyone questioning his view of events despite what he says to the contrary. He is inclined not to believe any words that come out of anyone’s mouth, whether it is Sean Payton or Tom Brady or whoever.
And if teams or players do not show contrition and admit guilt, he tends to punish them more, even when they maintain their innocence.
Pretty much everything in the Wells Report in Context was ignored or explained away by the league office.
But the Patriots team punishments were a total screw job, yes?
Wells says that there is no evidence that the team or the head coach knew anything about this. The NFL did not warn the Patriots about this because they didn’t take the complaint seriously.
The NFL had no protocols in place for measuring footballs, and never had made it a big deal.
Wells said that the Patriots cooperated fully, with the exception of Wells wanting to re-interview one part-time, non-local employee.
The alleged offense, altered footballs, is supposed to be a $25,000 fine.
That said, I wish I had a dollar for every time I had to explain to a client that their situation is completely unfair but that they have no good legal options.
So, who will win in any Deflategate legal action?
The definite answer is the lawyers.
Once things go to the court system, the parties lose a lot of control. Control over timing. Control over outcome.
Judges are not robots, and from court to court, case to case, they can rule differently.
I don’t think that this was a neutral and fair process based on the information that has been provided publicly. But I also know that courts are reluctant to overturn these types of decisions.
What’s up with the NY Federal judge asking the parties to resolve this?
Generally courts will fight hard for the parties to resolve it between themselves.
What is unusual about this case is that the judge said it emphatically and right away.
A settlement has significant challenges because it is hard to walk back Brady’s punishment without acknowledging the problems with their investigation. It is further complicated by the Patriots receiving such ample, fan-punishing penalties.
Settling with Brady but keeping the penalties for the Patriots with less culpability is hard to do.
That Robert Kraft historically was seen as having a favored status with Roger Goodell complicates this as well. Goodell either looks like he is favoring Kraft or is over-compensatingly tough to battle the perception from some that he is Kraft’s puppet-boy.
How fast will Deflategate get resolved?
Often in lawsuit situations, I’ve counseled clients, “We will grow old together.”
Generally, legal proceedings tend to go slowly. Whether that benefits or hurts a client differs from case to case.
For the NFL, they have little downside going to court. They have treasure baths full of money, and their legal strategies seem to be without regard to any monetary restrictions. (I worked as in-house counsel for large oil companies. They have treasure bath piles of money too. Unlike the NFL, they preferred not to spend their money on over-lawyered investigations and easily avoidable lawsuits. Minor example: I can’t imagine paying for four outside counsel attorneys to attend investigation interviews).
If the NFL gets a ruling against them, they will always try to distinguish it from the next case.
There is no downside to Roger Goodell if he loses. He gets paid. He doesn’t get suspended. One fanbase is mad at him. The rest either don’t care or are happy. For those who say Goodell cares about his legacy, well, you don’t pay for your Maine vacation home etc with legacy.
For the player, and more specifically, Tom Brady, the downside of going to court is mostly this timing issue. Quarterback is the most important position on the field, and being without a star quarterback has a huge effect on the team, their fans, on fantasy football, on betting. It is uncertain when Brady will retire, and a quarter of a season of games is likely a significant percentage of his remaining games.
If he gets in an injunction that allows him to play pending a court resolution, he cannot be certain when the injunction will be lifted. (To me, this has greater “integrity of the game” implications than unknown quantities of maybe ball deflation).
It would be interesting to see whether Brady’s lawyers argue that due to the unique nature of his position, any injunction should not be lifted at any time during the season. There are reports that the NFL used delaying tactics with the timing of their rulings. I don’t think this filing is likely; I’m just wondering out loud.
Will Tom Brady get an injunction that allows him to play pending court resolution?
I think so. Generally, injunctive relief in this sort of situation is not automatic. He would have to argue that he would “likely be able to prevail on the case on the merits” and be “irreparably harmed” by not being allowed to play.
I think he would be, but a judge has to agree with that. It is a fairly high standard, but courts have done that in the past.
He could choose to take the punishment early in the season and then let the court system resolve the claims, but if he wins, he will never get those games back.
Just guessing, I think that the parties may slow play this process and try to let it linger until after the season. That approach isn’t without risk, but it isn’t like there is one great solution to this.
Given the complexity of the issues involved, the public interest, and the quantity of documents involved, I think a quick resolution, even if it were desired, wouldn’t be likely.
But who knows? Once you go to court, you lose a lot of control.
What do you think about the NFLPA’s filing?
Because I likely need more hobbies, I enjoy reading both the NFL and the NFLPA filings on various matters.
Why? They are usually very well written. This is what happens when lawyers know their subject matter very well and have huge piles of money to spend on putting their documents together.
I appreciate the legal art of them.
I think the NFLPA filing is very good, and it is a vintage Jeffrey Kessler filing. I think there is a very good, succinct summary of it on the NFLPA news page.
Some more specific thoughts:
Used league personnel quotes against them. Throughout the filing, there are quotes that Kessler acquired in other recent cases that he surely knew would help him in future cases. Things that he wanted to get league officials to say for the record on issues of fairness.
For example, on page 18 of the NFLPA’s petition, they note: “Goodell testified in Rice that he could not retroactively discipline Rice under the NFL’s new Personal Conduct Policy because the NFL is ‘required to give proper notification‘ of player discipline.”
Kessler liked that quote from Goodell enough he gave it an “emphasis added” bold and italics. In this context, this is the lawyerly way of saying, “boom roasted.”
It is interesting to see the rhetorical shift from the filings in Bountygate to Deflategate. There is a much greater focus on fair notice issues. (Though that was also in issue in that case, and something former Commissioner Paul Tagliabue seemed concerned about in his final disposition of that).
One of the reasons perhaps? The findings in the Ray Rice and Adrian Peterson cases. From former U.S. District Court Judge Barbara Jones in the Ray Rice matter (NFLPA petition pg 17): “Commissioner Goodell acknowledged what the NFL has repeatedly stated in these proceedings: that the Commissioner needed to be fair and consistent in his imposition of discipline.”
Lack of independence of the Wells Report. The NFLPA filing reveals for the first time the extent of how not independent the Wells Report was despite the NFL’s public assurances that it was. That it was written from an advocacy perspective and not independence was obvious to me when reading the report initially. Almost cartoonishly so with some of the inferences it made.
We knew the Wells Report was paid for by the NFL, and that the law firm used was a regularly used one by the NFL.
What we learn in the NFLPA filing is that the NFL General Counsel had final approval of the draft. That the NFL was treating a lot of the communications related to it as privileged information. And how much of the investigative files the NFL failed to provide Tom Brady so that he had a fair chance to challenge it on appeal.
One of the people who authored the Wells Report was also the same person who cross-examined Brady at his arbitration hearing, even though his personal work with the Wells Report was one of the key issues at the hearing.
Do you think Tom Brady will file a defamation claim?
I think after the Vilma defamation claim, Roger Goodell has been a little more careful with how he discusses the nature of Deflategate publicly. That said, I’m not the legal minion that has been collecting statements that may go beyond what the Wells Report says.
Defamation is hard for public figures to prove but if you want to see a roadmap of how Saints linebacker Jonathan Vilma did it, here’s Vilma v. NFL. If you want to see how the NFL would likely defend such an action, here is the 12(B)(6) Motion to Dismiss.
The NFL filed a suit for declaratory relief in New York Federal Court. What is that about?
Judges are not robots and sometimes parties “forum shop” to try get the most advantageous ruling. This is an aggressive legal maneuver by the NFL that obviously angered Robert Kraft.
Here is a copy of the Action to Uphold Arbitration Award in the South District of New York.
How did a cheating allegations about ball inflation turn into a multi-million dollar, dragged out investigation and suspension?
Good question. In most sports, including the NFL, allegations of equipment violations lead to very minor discipline and/or fines. In the past, the NFL has warned teams against such violations and have fined teams.
Relating to Deflategate, NFL’s game operations manual states: “Once the balls have left the locker room, no one, including players, equipment managers, ball boys, and coaches, is allowed to alter the footballs in any way. If any individual alters the footballs, or if a non-approved ball is used in the game, the person responsible and, if appropriate, the head coach or other club personnel will be subject to discipline, including but not limited to, a fine of $25,000.”
Goodell’s lawyers, in his final ruling distinguish this situation from past discipline because he claims that what they believe the Patriots’ personnel did was intentional (pg 15).
I believe the operations manual assumes intent with ball alteration, but does say, “including but not limited to” so….I got nuthin. I don’t know what the NFL is thinking, really.
The NFLPA in their filing contends that the relevant punishments for players for any type of equipment violations are fines not suspensions for actual equipment tampering. Doesn’t say anything about maybe general knowledge of team personnel’s tampering.
Perhaps. But why the multi-million dollar outside investigation given other intentional acts by other teams?
I think the answer is twofold:
1. No Consistent Procedures. The NFL does not have consistent procedures for treating allegations of cheating. Sometimes if they get a complaint, they warn the teams. Sometimes they don’t. Professional golf gives this sort of protocol a lot of attention in their rules. The NFL obviously doesn’t.
Ted Wells in his conference call with media said, “[N]o one at the league office took the complaint seriously. They took the complaint via email to the operations people so they knew about it. They told the refs. Walt Anderson thought it was just a normal complaint. You get these types of things all the time. Nobody paid that much attention to it.”
2. Reactive Investigations. As far as I can tell, whether the NFL obtains outside counsel to investigate something or not is dependent on how much outrage there is on the subject, particularly from owners, politicians, or advertisers. There was substantial outrage about Deflategate because the initial leaks about the extent of ball deflation were wrong and not immediately corrected.
Had the original reports been correct, I might not need to write this now.
I think a lot of this circles back to the criticism that the NFL and Roger Goodell received about Spygate. At that point, the Spygate penalties were the harshest sanctions against any team. The investigation was done relatively swiftly and internally, and the Spygate tapes were ultimately destroyed.
The main public figure complaining about the lack of transparency in the Spygate investigation was the late Arlen Specter. He was an Eagles fan and whose campaign got substantial financial support from Comcast. This cable company did not like the exclusive relationship that the NFL had with DirecTV about Sunday Ticket. He called for an independent investigation of Spygate for the integrity of the game. For more reading on this subject, check out this ESPN report from 2008.
Ultimately, this quick, quiet resolution made many people angry.
Non-Patriots fans were angry because they thought the Patriots’ success was based on cheating, the NFL hid this cheating by destroying the tapes, and thought Goodell did Robert Kraft a favor.
Patriots fans were angry because of the unprecedented punishment. Some reports suggested that the strategic benefit of the tapes was overblown, multiple teams did similar things, former Patriots employee Matt Walsh oversold his involvement, and that the reports of taping the Rams walk thru before the Super Bowl were later admitted to be incorrect.
Fans wanted outside investigations. What is wrong with that?
The over-reaction to the Spygate criticism resulted in the NFL randomly and based on perceived outrage creating so-called “independent investigations.”
The good news is that the process is more transparent. The bad news is that the way the investigations are structured isn’t independent and isn’t well suited to get to the actual truth.
Pretty much every investigation has resulted in the participants believing that it wasn’t balanced and was written in a prosecutorial way.
Why? Any investigation is difficult to get right even if intended to be balanced and fair. People have differing recollections. Participants are distrustful of the process. Lawyer questioning can be intimidating and isn’t the best for the full and free flow of information. The lawyers involved likely have more knowledge of the law and less of the day-to-day of football.
The way the process has evolved is that the investigation of players actions is also acting as a judge for the NFL. Given that often player discipline becomes a NFL v NFLPA fight, the paid-by-the-NFL, reviewed-by-the-NFL-general counsel investigation appears to be written in a way to try to protect it from a legal challenge versus a balanced, dispassionate recitation of known facts.
Where can we find your previous writing on Deflategate?
Should Tom Brady Sue the NFL and Roger Goodell? A Deflategate Email Exchange. May 2015, Above The Law Blog. Wide ranging discussion of Ted Wells report, the Patriots Context Report, issues with process, next steps.
No 2. Roger Goodell is the Billionaire’s Captain. July 2015, MMQB. Sports Illustrated did The MMQB 100 of the most influential people in the NFL. They asked me to say a few words about what I thought about Goodell’s performance. I think it is spot on, and it wasn’t very complimentary. To be clear, it pains me to criticize the work of others. I really like to give people the benefit of the doubt but I just can’t with him any more. I wish I didn’t feel this way.
Storify: You are guilty. Here’s your punishment. May 2015. A Twitter thought experiment of how difficult it is to prove a negative in an environment of arbitrary process.
Executive Summary of the Wed Tells Report on Deflategate 2: Are The Colts Big Cheaters? May 2015, Battle Red Blog, SBNation Fanpost. Put that there as a bit of a goof to illustrate why fair process should be a concern to all fanbases, not just the Patriots, or the Saints or whoever the busted team du jour is.
Have any additional questions, comments? Put them below.
It’s sometimes hard to talk about legal issues to a broad audience without simplifying to the point of complete inaccuracy. So if you have any Deflategate legal questions of a more or less detailed nature than above, please let me know. My comment community is usually a very good one. Sometimes the comments are so good, I create new blog posts just to highlight how good some of the comments are. Unusual, I know.
(Please note. This is my blog, it has my name on it, so I have rules. For those who don’t know, I approve each comment individually and will approve most stuff unless it is abusive or spam. Unlike some places on the web, I strongly prefer for people to attack arguments and NOT people. What that means is that I do not want any personal attacks against people you dislike or other commenters. Avoiding personal attacks make the comments helpful to others’ understanding and doesn’t derail conversation into middle school neener neener stuff. This is a forum to create reasoned commentary and questions on the legal issues and not for trash talk because there are many other places on the web for that, and I do not want to facilitate it. In addition, since the issues right now are mostly ones of process and law, I am not interested in this being a forum for discussing the detailed facts unless they have some relevance to the process issues which are the main ones relevant in the on-going court case. Think of this as fair notice. Thank you kindly for your cooperation.)