Today, I was wrong. Loud wrong.
I was misinformed. Loud misinformed.
I was both of these things on Twitter.
Shocking, I know. It's kind of the classic social media behavior, right? Some dope arrogantly spouting dumb, wrong, misinformed opinions. When people talk about why they hate social media, dopes like me are at top of the list.
But one of the good things about social media is the ability to learn things. And to admit I was wrong.
Today it was Steve Silver who taught me about the law and showed how I was wrong.
Let's back up: Mid-afternoon, the news broke that the NFL had upheld Brady's four-game suspension over deflategate. The primary reason was the fact that Brady reportedly destroyed his cell phone - which the NFL had requested.
This reasoning felt wrong to me. Which is why I was stunned when columnists I respect like Dan Wentzel wrote this:
On this, it's tough to argue with Goodell, which is why he seized the point and his beloved moral high ground. Brady was his own worst enemy and looked very much like someone either with something to hide or just dumb as a rock.
And my friend and mentor Mike Vaccaro wrote this:
If you are a member in good standing of an NFL team – star or scrub, Hall of Famer or taxi squad regular – when your commissioner asks you to cooperate with a matter involving the fairness of the league, you comply. No ifs. No ands. No buts.
That kind of blind compliance to authority makes me uneasy - especially an authority that's not a court of law. It felt like the primary argument was the old "the coverup is worse than the crime," which felt thin to me. That's not worth suspending a man four games and forever labeling him a cheater - even if it does help my beloved Buffalo Bills.
I kept coming back to this quote from the NFL's report:
"Mr. Brady's conduct gives rise to an inference that information from his cell phone, if it were available, would further demonstrate his direct knowledge of and involvement with the scheme to tamper with the game balls."
When I read this, I seized on the phrase "inference that information ... would further demonstrate." That made me uneasy. I thought "there's no way that can stand! You can't punish someone because of what you think might be there. You can't punish on an inference."
So I took to Twitter:
How can a full punishment be upheld based on an inference? Can’t say “cover up is worse than the crime” b.c no proof of a coverup.— Brian Moritz (@bpmoritz) July 28, 2015
A lot of NFL writers I respect are making the point that Brady should have cooperated. But it was on the NFL to show he cheated.— Brian Moritz (@bpmoritz) July 28, 2015
It’s not Brady’s job to prove he didn’t do it. It’s the NFL’s to prove he did. Can’t prove anything with an inference -30-— Brian Moritz (@bpmoritz) July 28, 2015
Soon after posting my rant, I read a great column on ATL Redline from Silver. Two takeaways:
By destroying the phone and destroying evidence, Brady did more than just look bad. Silver said this could be ruled an adverse inference jury instruction.
This means that if Brady or the NFLPA sues the NFL, the judge could instruct a jury that they are allowed to draw an inference that the evidence contained in Brady’s phone would have been unfavorable to his case. In most circumstances, an adverse inference is akin to an outright dismissal of the case since the jury (or sometimes the judge) is allowed to assume that whatever evidence was destroyed would have made the destroying party look awful.
I was wrong. Loud wrong. Way wrong.
What I liked about Silver's post was the legal references he used. This was actual legal precedent and law. Chapter and verse. Legal knowledge as great reporting (proof that great reporting is not just shoe-leather-interviews with sources).
We tweeted back and forth:
So if you deliberately destroy evidence, a judge can rule that people can infer it was bad evidence. Thanks @TheLegalBlitz for the knowledge— Brian Moritz (@bpmoritz) July 28, 2015
@bpmoritz such as an actual lawsuit, discovery request, "litigation hold" letter or that litigation was "reasonably foreseeable"— The Legal Blitz (@TheLegalBlitz) July 28, 2015
@bpmoritz yes and they will also argue that even if they had a duty, it did not arise until after the phone was destroyed in...— The Legal Blitz (@TheLegalBlitz) July 28, 2015
@bpmoritz the course of Brady's "routine, good-faith" system of always destroying phones when he gets a new one, likely BS, but worth a shot— The Legal Blitz (@TheLegalBlitz) July 28, 2015
I still think the suspension was overkill. I think this story is pretty ridiculous, and I love me a good ridiculous story. I don't know if the NFL was right to ask for the phone or that Brady had any obligation to turn it over.
But the point I made in my Twitter rant was wrong. So I apologize for that.
But thanks to Silver for setting me straight.