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Wednesday, March 20, 2013

Calcaterra: Ryan Braun is “MLB’s Public Enemy No.1”

“Milwaukee Melodrama” now playing at the Biograph Theater!

Bob Nightengale reports in USA Today about Major League Baseball’s efforts to investigate players named in the Biogenesis documents. Of somewhat surprising note: Nightengale says some 90 players appear in the records. Of less surprising note: it’s the big fish that MLB is clearly focusing on: Alex Rodriguez and, even more so, Ryan Braun:

  There might be plenty of minor leaguers to go down before this is over, maybe a few major league players, too, but there are really two players who captivate MLB’s interest. New York Yankees star Alex Rodriguez and Braun. And Braun happens to be MLB’s Public Enemy No.1.

  His successful appeal of a positive testosterone test led to major revisions in baseball’s sample collection process last year. Baseball officials, from the top executives in New York to their field investigators, refuse to let it go. They want Braun — badly. They have been relentless in their pursuit, trying to make life as miserable as possible for him.

...But there is a troubling element to it. The biggest mistake of the Mitchell Report was how it was hellbent to get a list of names and make examples/token victims out of some while failing, almost entirely, to grasp what was really going on with PEDs in baseball in such a way as to actually combat their proliferation and use.  If, in this case, baseball has a monomaniacal focus on carrying out some vendetta against Braun and, because of it, fails to undertake a systematic investigation of the Biogenesis matter, it is once again going down the road of the Mitchell Report.

If Nightengale is right and there are 90 players named, there should be interviews and investigations of 90 players. Or, at the very least, investigations of enough of them to get a full picture of what’s going on down in Miami. The point should not be to settle some score with Ryan Braun. He should be meted out justice, if justice is so justified, in the same manner and measure as any other player involved.

Repoz Posted: March 20, 2013 at 09:07 AM | 94 comment(s) Login to Bookmark
  Tags: brewers, steroids

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   1. JJ1986 Posted: March 20, 2013 at 09:19 AM (#4392269)
Having some guys win on appeal makes your system look a lot better than having the appeals process be a sham that can't be beaten. How does MLB not get that?
   2. Harveys Wallbangers Posted: March 20, 2013 at 09:25 AM (#4392278)
having mentioned this elsewhere this is not news to me. it's understood that mlb is gunning for braun. and they really don't care who knows about it since the mike lupicas of the world think nailing braun for something would be 'justice'
   3. Fat Al Posted: March 20, 2013 at 09:27 AM (#4392280)
But how does this affect my fantasy draft?
   4. Harveys Wallbangers Posted: March 20, 2013 at 09:33 AM (#4392286)
fat

i would factor in a 50 game suspension potential of greater than 50 percent
   5. RoyalsRetro (AG#1F) Posted: March 20, 2013 at 09:43 AM (#4392291)

But how does this affect my fantasy draft?


Braun was the only $40 player in our NL-only auction draft, even as we all joked about his imminent suspension.
   6. Dale Sams Posted: March 20, 2013 at 10:01 AM (#4392304)
"Branded, scorned as the one who ran.
What do you do when you're branded, and you know you're a man"
   7. Johnny Sycophant-Laden Fora Posted: March 20, 2013 at 10:05 AM (#4392306)
Having some guys win on appeal makes your system look a lot better than having the appeals process be a sham that can't be beaten. How does MLB not get that?


you want your system to look fair- you want someone to win because he may not really have taken PEDs, the test(s) were inconclusive, or he has a real medical condition, or his sample really was switched with someone else's...

or that real life guy who was suspended in the minors, served his suspension, was called up to MLB, "failed" a random test (lowest level deemed to be a positive test) and was suspended again with o evidence he'd done PEDs since his first suspension- indeed the MLB acknowledged that given the % decline between his two suspension he probably had not.

That guy should have been the one to get off.

Braun OTOH hand used PEDs but because the urine collector did not follow protocol exactly- the arbitrator threw out the test results.

I know Civil Libertarians have hard time with this, but other than them, most people HATE it when perfectly good evidence is thrown out because a judge rules that the search warrant that lead to the evidence was invalid because the affidavit submitted to get the warrant was notarized by a notary with an expired commission.

So Braun isn't seen by most fans/mediots as an example of the system "working," he's just seen as a cheating SOB who successfully exploited a loophole.
   8. JJ1986 Posted: March 20, 2013 at 10:09 AM (#4392311)
or that real life guy who was suspended in the minors, served his suspension, was called up to MLB, "failed" a random test (lowest level deemed to be a positive test) and was suspended again with o evidence he'd done PEDs since his first suspension- indeed the MLB acknowledged that given the % decline between his two suspension he probably had not.


This glove-first shortstop went on to become Michael Morse, gigantic power hitter.
   9. Esoteric Posted: March 20, 2013 at 10:16 AM (#4392318)
or that real life guy who was suspended in the minors, served his suspension, was called up to MLB, "failed" a random test (lowest level deemed to be a positive test) and was suspended again with o evidence he'd done PEDs since his first suspension- indeed the MLB acknowledged that given the % decline between his two suspension he probably had not.
That was actually Michael Morse, so at the very least he was able to make something good of himself despite getting screwed over that way.

EDIT: Coke to JJ1986. And it's not fair to say that he was a "glove-first shortstop" at the time -- he was never really thought of that way; he always profiled as a bat whose glove could be tolerated but wasn't anything special.
   10. Esoteric Posted: March 20, 2013 at 10:21 AM (#4392322)
I know Civil Libertarians have hard time with this, but other than them, most people HATE it when perfectly good evidence is thrown out because a judge rules that the search warrant that lead to the evidence was invalid because the affidavit submitted to get the warrant was notarized by a notary with an expired commission.

So Braun isn't seen by most fans/mediots as an example of the system "working," he's just seen as a cheating SOB who successfully exploited a loophole.
Ray DiPerna to the white courtesy phone, please.

(Incidentally, while I agree with what you say, I still think the process "worked" with regard to Braun insofar as I'm glad players have those sorts of procedural safeguards and anything which encourages more diligence w/r/t testing and sample handling is fine by me.)

EDIT: Also, I think it's foolish for MLB to single Braun out to the exclusion of all others. While it ultimately is quite analogous to the sort of prosecutorial discretion exercised by the state's attorney in the real legal system, they should be going after big fish and small fish alike.

Well, except Gio. Leave my Gio out of this!
   11. Johnny Sycophant-Laden Fora Posted: March 20, 2013 at 10:30 AM (#4392330)
(Incidentally, while I agree with what you say, I still think the process "worked" with regard to Braun insofar as I'm glad players have those sorts of procedural safeguards and anything which encourages more diligence w/r/t testing and sample handling is fine by me.)


I didn't say the process didn't work as it was designed to, plus having player get off - even on a perceived technicality- probably makes other players more comfortable with the regime-

but the general public just doesn't see things like that
   12. Harveys Wallbangers Posted: March 20, 2013 at 10:34 AM (#4392335)
johnny

disagree on players being more comfortable. if anything they are more suspicious knowing the one guy who was deemed impartial lost his job as part of the review committee.



   13. JJ1986 Posted: March 20, 2013 at 10:39 AM (#4392339)
but the general public just doesn't see things like that


I think MLB has a lot of influence over that. If they'd come out and said "we're glad that the appeals process works" then people would have accepted it and moved on. Instead, Selig ranted, fired the arbitrator and then continued to target the exonerated party.

MLB has planted the idea that its own appeals process is bullshit and the results don't matter.
   14. Yeaarrgghhhh Posted: March 20, 2013 at 10:54 AM (#4392357)
I was surprised that I got Trout for $39 in my AL draft. I thought he'd go for well over $40.
   15. GregD Posted: March 20, 2013 at 10:58 AM (#4392361)
I look forward to the day when Braun is tied to the stocks and we all get to whip him with our ostrich feathers
   16. Esoteric Posted: March 20, 2013 at 11:00 AM (#4392364)
disagree on players being more comfortable. if anything they are more suspicious knowing the one guy who was deemed impartial lost his job as part of the review committee.
That was actually the part of the whole Braun affair that upset me the most. Sure, Braun got off on a technicality -- he was guilty as sin, but walked free as a jaybird -- but he got off on a legitimate technicality. The rules as written hadn't been followed, and it wasn't up to the arbitrator to decide that "okay, THESE rules are important and must be followed, but THOSE rules are just niggling technicalities, whose violations can be overlooked." So he tossed the evidence due to improper sample-handling procedures. And got sh*tcanned by MLB for his conscientiousness.

Now of course I'm living in a fantasy world, because that's the sort of thing sports arbitrators are pressured to do (and DO do) all the time: anyone else think it's a questionable arrangement for these guys who hold their jobs subject to the suffrance of one of the two parties in every dispute? Yeah, me neither.
   17. snapper (history's 42nd greatest monster) Posted: March 20, 2013 at 11:04 AM (#4392371)
So, is everyone just assuming Braun is using?

Because, if he's not, I don't see how MLB is going to "get him".
   18. charityslave is thinking about baseball Posted: March 20, 2013 at 11:06 AM (#4392373)
They'll never catch Braun. He's a cagey veteran.
   19. Matt Clement of Alexandria Posted: March 20, 2013 at 11:09 AM (#4392378)
It all depends what's in those Biogenesis records.

But, I mean, Braun was caught using something. I'm 100% with Esoteric that I like the way the system worked in Braun's case - every worker should have representation that good - but that doesn't mean as a random human on the internet I can't draw the conclusion that Braun was almost certainly using PEDs.
   20. Jolly Old St. Nick Is A Jolly Old St. Crip Posted: March 20, 2013 at 11:09 AM (#4392379)
I think MLB has a lot of influence over that. If they'd come out and said "we're glad that the appeals process works" then people would have accepted it and moved on. Instead, Selig ranted, fired the arbitrator and then continued to target the exonerated party.

MLB has planted the idea that its own appeals process is ######## and the results don't matter.


When they fired the arbitrator, that was the signal that they have no interest in any independent judgments. That may be fine with the Lupicas, but it's hardly likely to inspire much confidence in those who are a little more fairminded than them.
   21. Spectral Posted: March 20, 2013 at 11:14 AM (#4392384)
I know Civil Libertarians have hard time with this, but other than them, most people HATE it when perfectly good evidence is thrown out because a judge rules that the search warrant that lead to the evidence was invalid because the affidavit submitted to get the warrant was notarized by a notary with an expired commission.


I know authoritarian personality types have a hard time with this, but procedures are in place to protect people's rights. When procedures can be ignored on the basis of, "hey, we all know he did it", this has an effect on everyone, whether they know it or not.
   22. Fernigal McGunnigle has become a merry hat Posted: March 20, 2013 at 11:17 AM (#4392386)
“Milwaukee Melodrama” now playing at the Biograph Theater!


Actually, There is a Happiness That Morning Is is playing at the Biograph Theater for the next couple of weeks. It's a very funny, smart and affecting comedy, and is one of the twenty or so best productions I've ever seen.
   23. Esoteric Posted: March 20, 2013 at 11:41 AM (#4392412)
I know authoritarian personality types have a hard time with this, but procedures are in place to protect people's rights. When procedures can be ignored on the basis of, "hey, we all know he did it", this has an effect on everyone, whether they know it or not.
You seem to be indirectly labelling JSLF as an 'authoritarian personality type,' which I don't think is fair to him. What he's doing in that post seems to me to be more about objectively describing the way the average joe looks at this situation, for better or worse.
   24. Esoteric Posted: March 20, 2013 at 11:45 AM (#4392415)
people HATE it when perfectly good evidence is thrown out because a judge rules that the search warrant that lead to the evidence was invalid because the affidavit submitted to get the warrant was notarized by a notary with an expired commission.
Incidentally, just so you know: in a scenario like this the evidence would almost certainly not be thrown out. The Exclusionary Rule is applied with the overarching goal of curbing police abuses of 4th Amendment rights, so in a scenario where everything about the warrant was otherwise kosher (PC was properly established, the affidavit to the magistrate correctly explained the place for the search and what was sought, etc.) this sort of a technicality wouldn't render the resulting evidence excludable because it wouldn't tend toward the greater goal of curbing police abuses.
   25. snapper (history's 42nd greatest monster) Posted: March 20, 2013 at 12:07 PM (#4392446)
Actually, There is a Happiness That Morning Is is playing at the Biograph Theater for the next couple of weeks.

Is that the one where Dillinger got shot?
   26. The District Attorney Posted: March 20, 2013 at 12:12 PM (#4392448)
I find it hard to believe that Bud Selig has directed MLB to "take down" Milwaukee's mega-million-dollar mega-superstar player.
   27. Harveys Wallbangers Posted: March 20, 2013 at 12:33 PM (#4392470)
da

don't know what else to tell you. the commish wants braun in the stocks
   28. Juan Uribe Marching and Chowder Society Posted: March 20, 2013 at 12:38 PM (#4392475)
You seem to be indirectly labelling JSLF as an 'authoritarian personality type,' which I don't think is fair to him. What he's doing in that post seems to me to be more about objectively describing the way the average joe looks at this situation, for better or worse.


I'm with Esoteric.
   29. valuearbitrageur Posted: March 20, 2013 at 12:46 PM (#4392485)
I know Civil Libertarians have hard time with this, but other than them, most people HATE it when perfectly good evidence is thrown out because a judge rules that the search warrant that lead to the evidence was invalid because the affidavit submitted to get the warrant was notarized by a notary with an expired commission.

So Braun isn't seen by most fans/mediots as an example of the system "working," he's just seen as a cheating SOB who successfully exploited a loophole.


Most fans don't care strongly at all. If Braun is playing for the other team that day, they'll heckle him with it regardless. But we are a nation where the majority are pot smoking, drug using, hard boozing independents, and are naturally suspicious of untrammeled authority.

And Braun doesn't have to be caught using. I expect the Commish will suspend him for the association with Biogenesis alone. Which means that soon another arbiter will be facing a career making/ending decision.
   30. Spectral Posted: March 20, 2013 at 12:49 PM (#4392493)
You seem to be indirectly labelling JSLF as an 'authoritarian personality type,' which I don't think is fair to him. What he's doing in that post seems to me to be more about objectively describing the way the average joe looks at this situation, for better or worse.


I dislike when people assert what "most people" believe without actually providing evidence that it's the case. When someone does this, I generally think what they're really saying is more like, "I believe this to be the case, and I just knowthat most people agree". I structured my post in the same fashion that he structured his though, with a squishy assertion about what people of a certain ilk believe rather than telling him what he believes. If I'm misinterpreting what he wrote, my mistake and my apologies.
   31. A big pile of nonsense (gef the talking mongoose) Posted: March 20, 2013 at 12:49 PM (#4392494)
Is that the one where Dillinger got shot?


Yep.

Unless, of course, you believe the conspiracy theories (i.e. that the body wasn't his -- different height, eye color, scars, etc., supposedly).
   32. Swedish Chef Posted: March 20, 2013 at 12:50 PM (#4392495)
this sort of a technicality wouldn't render the resulting evidence excludable because it wouldn't tend toward the greater goal of curbing police abuses.

I don't get that, in what way is letting a criminal off the hook a strike against police abuses? The only one harmed by that are crime victims, not police. Wouldn't the logical way to combat police abuses be to use internal discipline and/or the law against the police that do these kinds of things?
   33. JJ1986 Posted: March 20, 2013 at 12:51 PM (#4392499)
I don't get that, in what way is letting a criminal off the hook a strike against police abuses? The only one harmed by that are crime victims, not police. Wouldn't the logical way to combat police abuses be to use internal discipline and/or the law against the police that do these kinds of things?


If abuses lead to arrests and convictions, that encourages the use of abuses.
   34. Ivan Grushenko of Hong Kong Posted: March 20, 2013 at 12:52 PM (#4392500)
Satan is public enemy number one
Wanted dead or alive for all the crimes of this land
Killing God's children one by one
Casting affliction upon the innocent man
   35. Juan Uribe Marching and Chowder Society Posted: March 20, 2013 at 12:52 PM (#4392501)
You seem to be indirectly labelling JSLF as an 'authoritarian personality type,' which I don't think is fair to him. What he's doing in that post seems to me to be more about objectively describing the way the average joe looks at this situation, for better or worse.


I'm with Esoteric.
   36. Pops Freshenmeyer Posted: March 20, 2013 at 12:52 PM (#4392502)
When they fired the arbitrator, that was the signal that they have no interest in any independent judgments. That may be fine with the Lupicas, but it's hardly likely to inspire much confidence in those who are a little more fairminded than them.

Heh. They signaled this when they installed an incredibly limited universe of appealable issues. There was at least one report that Braun's test results were wacky with respect to testosterone levels but because MLB only allows for appeals regarding procedural issues there was no opportunity to address that substantive issue (if it existed). Braun argued a technicality because that's all he is allowed to argue. So instead of addressing the merits of the test, MLB rules created a situation where player's don't get a meaningful review. The appeal seems merely designed to have an empty process they can point to and declare the system fair and reasonable. The fact that an appeal actually succeeded was apparently a shocking turn of events.

Of course it's all supposed to be confidential but MLB's track record seems less than stellar in that department.
   37. Misirlou's been working for the drug squad Posted: March 20, 2013 at 12:57 PM (#4392509)
I don't get that, in what way is letting a criminal off the hook a strike against police abuses? The only one harmed by that are crime victims, not police.


It would seem to me that if the police and the prosecutors office are repeatedly letting people off because of sloppy procedure, the people at the top will ensure heads will roll. Top level politicians like mayors and DAs don't like getting embarrassed in front of the public by their underlings.
   38. Pops Freshenmeyer Posted: March 20, 2013 at 01:02 PM (#4392514)
Incidentally, just so you know: in a scenario like this the evidence would almost certainly not be thrown out. The Exclusionary Rule is applied with the overarching goal of curbing police abuses of 4th Amendment rights, so in a scenario where everything about the warrant was otherwise kosher (PC was properly established, the affidavit to the magistrate correctly explained the place for the search and what was sought, etc.) this sort of a technicality wouldn't render the resulting evidence excludable because it wouldn't tend toward the greater goal of curbing police abuses.

Evidence must meet certain minimum requirements of reliability; the 4th Amendment isn't the only test of admissibility. Here there are issues regarding the chain-of-custody as well as what effects the storage may have had on the results.

I don't get that, in what way is letting a criminal off the hook a strike against police abuses? The only one harmed by that are crime victims, not police. Wouldn't the logical way to combat police abuses be to use internal discipline and/or the law against the police that do these kinds of things?

It's not letting a criminal off the hook. It's excluding certain evidence regarding a suspect of undetermined guilt. It's also the only real deterrent for police forces that is effective (according to some).
   39. Arbitol Dijaler Posted: March 20, 2013 at 01:05 PM (#4392523)
They'll never catch Braun. He's a cagey veteran.


The Ashkenazi are a cunning people.
   40. snapper (history's 42nd greatest monster) Posted: March 20, 2013 at 01:08 PM (#4392528)
I don't get that, in what way is letting a criminal off the hook a strike against police abuses? The only one harmed by that are crime victims, not police. Wouldn't the logical way to combat police abuses be to use internal discipline and/or the law against the police that do these kinds of things?

Yes, that would be the sane system. If the evidence is real (i.e. not planted or manipulated) the evidence is admit, and the cops/DAs that gathered the evidence are disciplined/fired/prosecuted, depending on the severity of their abuse.

I believe that's how it generally works in the UK, with the judge having wide discretion over what evidence to admit.

I mean, if you've got a dead girl in your closet, but the police don't get a warrant, is it really justice to let the murderer go free?

If abuses lead to arrests and convictions, that encourages the use of abuses.

Cops care much more about losing their pensions than whether a criminal is convicted or walks.
   41. A big pile of nonsense (gef the talking mongoose) Posted: March 20, 2013 at 01:10 PM (#4392534)
I mean, if you've got a dead girl in your closet, but the police don't get a warrant, is it really justice to let the murderer go free?


I think it depends on whether she was drunk beforehand, & whether the killer was under 18. Or something.
   42. Gamingboy Posted: March 20, 2013 at 01:13 PM (#4392538)
Somebody should make a "Days of Future Past" cover pastiche of Ryan Braun trying to escape the long arm of MLB while a sheet of mugshots in the back show what happened with past PED people.
   43. snapper (history's 42nd greatest monster) Posted: March 20, 2013 at 01:13 PM (#4392539)
I think it depends on whether she was drunk beforehand, & whether the killer was under 18. Or something.

Well played, sir.
   44. JJ1986 Posted: March 20, 2013 at 01:15 PM (#4392544)
I mean, if you've got a dead girl in your closet, but the police don't get a warrant, is it really justice to let the murderer go free?


Well, why didn't they have a warrant? How did they find the body without a warrant? Did they break into your home?
   45. snapper (history's 42nd greatest monster) Posted: March 20, 2013 at 01:20 PM (#4392555)
Well, why didn't they have a warrant? How did they find the body without a warrant? Did they break into your home?

I don't know. Maybe they cam to question you, and the cop poked around. Maybe they had the super let them in.

If they did break into your house, then the cop(s) should be fired, lose his pension, and be prosecuted for breaking and entering. The evidence should be admissible, however.

Note: I would only apply this to serious violent crimes (murder, kidnapping, rape, etc.). I would keep the current exclusionary rule for property crime, drug possession, etc.
   46. Spectral Posted: March 20, 2013 at 01:24 PM (#4392560)
If they did break into your house, then the cop(s) should be fired, lose his pension, and be prosecuted for breaking and entering. The evidence should be admissible, however.


If they're willing to disregard pretty clear rules, what else might they have screwed up in the process? Why should a jury trust that someone willing to disobey rules about privacy wouldn't plant the evidence themselves? Granted, a body would be pretty damning, as it's not trivial to plant, but there's a lot more cases that involve drugs putatively found in someone's house than bodies in closets.
   47. snapper (history's 42nd greatest monster) Posted: March 20, 2013 at 01:27 PM (#4392567)
If they're willing to disregard pretty clear rules, what else might they have screwed up in the process? Why should a jury trust that someone willing to disobey rules about privacy wouldn't plant the evidence themselves? Granted, a body would be pretty damning, as it's not trivial to plant, but there's a lot more cases that involve drugs putatively found in someone's house than bodies in closets.

See my note. I wouldn't apply this to drug cases, or property cases.

And, the judge still would have the discretion to suppress evidence if he thought the police/DA were trying to pull something.
   48. Esoteric Posted: March 20, 2013 at 01:30 PM (#4392569)
Cops care much more about losing their pensions than whether a criminal is convicted or walks.
Fine. Now ask yourself: under your system, who would make the decision to prosecute them? Who would investigate and gather evidence against them? Who would have the responsibility of 'policing' the policemen? Answer: the police themselves and the prosecutor's office (in other words players on the same team with identical interests). Which is why these systems of internal enforcement (which was way things were done prior to the firming up of the Exclusionary Rule by SCOTUS) were inevitably a ghastly joke: the cops who violated search and seizure laws weren't about to be investigated/reprimanded by their brothers in blue, or prosecuted by the state's attorney whose cases they assisted so much. Civil remedies were a fantasy: most accused criminals are near-indigent anyway, and good luck finding a jury that wouldn't think "hey, screw this guy, he WAS a crook after all."

The Exclusionary Rule works. In fact, it's quite arguably the ONLY thing that works: it's the only penalty that can't be controlled by police or the prosecution, the only one that doesn't require implementation and enforcement by the very people it's targeted against. Which is why cops generally DO try to be conscientious and by-the-book about these things.
   49. Pops Freshenmeyer Posted: March 20, 2013 at 01:31 PM (#4392573)
I don't know. Maybe they cam to question you, and the cop poked around. Maybe they had the super let them in.

If they are not complete morons, they go back and get a search warrant and return.

Of course, your offered scenarios basically requires the police officers to be willfully violating the law from the get-go.

EDIT: I should admit that my understanding of the nuts and bolts of the 4th Amendment case law is outdated and probably fuzzy in many areas. I haven't really had occasion to look at these issues since I finished school half a decade ago.
   50. RMc is a fine piece of cheese Posted: March 20, 2013 at 01:40 PM (#4392582)
Ray DiPerna to the white courtesy phone, please.

"Give me Ham on five, hold the Mayo!"

But we are a nation where the majority are pot smoking, drug using, hard boozing independents

Then why do we keep electing teetotaling Republicans and Democrats?

and are naturally suspicious of untrammeled authority.

Trammell authority doesn't work so well either...
   51. Shredder Posted: March 20, 2013 at 01:41 PM (#4392586)
I mean, if you've got a dead girl in your closet, but the police don't get a warrant, is it really justice to let the murderer go free?
Aren't there rules regarding exigent circumstances? I mean, I don't think dead bodies are excluded from evidence very often.
   52. Johnny Sycophant-Laden Fora Posted: March 20, 2013 at 01:44 PM (#4392588)
Incidentally, just so you know: in a scenario like this the evidence would almost certainly not be thrown out.


You mean I've been lied to by vigilante movies?!
:-)
   53. Johnny Sycophant-Laden Fora Posted: March 20, 2013 at 01:45 PM (#4392591)
I know authoritarian personality types have a hard time with this, but procedures are in place to protect people's rights. When procedures can be ignored on the basis of, "hey, we all know he did it", this has an effect on everyone, whether they know it or not.


I actually agree with this statement as well.

   54. Esoteric Posted: March 20, 2013 at 01:46 PM (#4392595)
You mean I've been lied to by vigilante movies?!
"But Hollywood would never lie to us!"
   55. Joey B. "disrespects the A" Posted: March 20, 2013 at 01:47 PM (#4392597)
Sweet. Get that bug-eyed, cheating little freak!
   56. ecwcat Posted: March 20, 2013 at 01:48 PM (#4392598)
Getting off on technicalities hasn't been in vogue since the 1980s.

Ryan's sample wasn't tampered with.

Have fun debating it though, Aspergers.
   57. Swedish Chef Posted: March 20, 2013 at 01:48 PM (#4392599)
If abuses lead to arrests and convictions, that encourages the use of abuses.

Not if they lead to firings, arrests and convictions of abusing police.

Well, at least in utopic Sweden this isn't a problem, because there is no such thing as excluding evidence here.
   58. Esoteric Posted: March 20, 2013 at 01:49 PM (#4392602)
Then why do we keep electing teetotaling Republicans and Democrats?
Probably for the same reasons that you wouldn't choose a drunk, stoned, druggie to drive you home in your car.

Honestly though, at this point maybe we SHOULD give those guys a shot. They could hardly do much worse, and politics would at least certainly be more fun.
   59. Johnny Sycophant-Laden Fora Posted: March 20, 2013 at 01:52 PM (#4392608)
I mean, if you've got a dead girl in your closet, but the police don't get a warrant, is it really justice to let the murderer go free?

Well, why didn't they have a warrant? How did they find the body without a warrant? Did they break into your home?


In theory, if the police simply arbitrarily broke into your home, and found the body, it would then be excluded...

Of course knowing that you killed her, the Police would almost certainly be able to investigate you and find enough evidence "legitimately" to enable them to get the warrant...

Aren't there rules regarding exigent circumstances?


yes, but exigent means something like, 911 Call, "I heard screams from my neighbor's house"
Police come, knock on door, also hear someone screaming for help... they break down the door...
   60. Esoteric Posted: March 20, 2013 at 01:54 PM (#4392612)
Not if they lead to firings, arrests and convictions of abusing police.
See my #48 for why it's a fool's errand to expect that to happen. We have more than enough empirical evidence from the 150 or so years prior to when Mapp v. Ohio finally fully incorporated the rule (which already existed on a federal level) to all fifty states to know that the idea of relying upon "internal discipline" or for the state to suddenly start prosecuting its own policemen was a fantasy. It was like telling one arm to grab a hacksaw and starting slicing off the other arm.
   61. Esoteric Posted: March 20, 2013 at 01:58 PM (#4392617)
Aren't there rules regarding exigent circumstances? I mean, I don't think dead bodies are excluded from evidence very often.
The exigent circumstances exception only applies to a situation where an LEO has a reasonable belief that he must act immediately to save someone from impending physical harm. It quite specifically (as in, there is case-law directly addressing this) does NOT apply to situations where the only suspicion is that there might be dead body. As I heard one judge who was dealing with exactly this sort of case say, "he ain't getting any deader, after all."

EDIT: Coke to JSLF.
   62. Spectral Posted: March 20, 2013 at 02:02 PM (#4392622)
I'd find a claim that there were exigent circumstances regarding a body in a closet plausible on the basis that whoever stashed that body there probably doesn't intend that as its final destination. That'd be pretty context dependent though, and IANAL.
   63. Esoteric Posted: March 20, 2013 at 02:05 PM (#4392623)
Oh, and one other thing people are little confused about: in this "dead body" hypothetical, the dead body itself WOULD NOT be excluded from evidence. How could it be, after all? It's a case about the dead person's murder! So all physical evidence relating to manner of death, drug/chemical analysis, clothing, bruising, time of death, etc., etc...that's going to come into evidence no matter what. (Again: the Exclusionary Rule has never, ever been interpreted by the courts as a brain-dead blanket-application rule.)

What COULD get excluded is the question of where the body was found. But if, say, you can establish that Joe Blow was killed by being stomped to death by a guy wearing shoes with a unique (or fairly rare) imprint, and you then find a pair of shoes belonging the Defendant that match exactly and were taken from his possession (and aren't themselves barred by the Exclusionary Rule -- let's say you found them in the garbage dumpster two streets over), then guess what? You've got a pretty solid murder case, even if you can't get into evidence the fact that oh yeah, the body was found in the Defendant's closet.
   64. Tulo's Fishy Mullet (mrams) Posted: March 20, 2013 at 02:06 PM (#4392626)
Well, why didn't they have a warrant? How did they find the body without a warrant?


forgive me if its been covered by Esoteric or others, but there are several recognized exceptions that allow warrantless searches. Perhaps the most obvious is 'consent', others have been mentioned here at least indirectly.
   65. Esoteric Posted: March 20, 2013 at 02:10 PM (#4392630)
I'd find a claim that there were exigent circumstances regarding a body in a closet plausible on the basis that whoever stashed that body there probably doesn't intend that as its final destination. That'd be pretty context dependent though, and IANAL.
In that case you simply radio into the police headquarters for a search warrant (the time between establishing PC for a premises search to getting the warrant can be extremely fast provided there's a magistrate on duty -- and yes, sometimes the cops WILL go roust a judge from his bed at 4:00am if they absolutely need to). In the meantime you stake out the house. If the perp attempts to leave, a cop is WELL WITHIN his rights to detain him at that point, and if he has the body with him then hey, even better -- just hold him there and radio for a warrant to get into the trunk of his car.
   66. JJ1986 Posted: March 20, 2013 at 02:11 PM (#4392631)
forgive me if its been covered by Esoteric or others, but there are several recognized exceptions that allow warrantless searches. Perhaps the most obvious is 'consent', others have been mentioned here at least indirectly.


Yeah, but Snapper was talking about cases where the defendant goes free because of the lack of warrant.
   67. Spectral Posted: March 20, 2013 at 02:13 PM (#4392633)
Esoteric - You're right. I think the ultimate point is that the body in the closet is a bit of a dopey hypothetical. If cops are aware that there's a body in your closet belong to a person you killed, you're absolutely screwed, and there's no movie-style technicalities that are getting you out of that one.
   68. Misirlou's been working for the drug squad Posted: March 20, 2013 at 02:25 PM (#4392646)
Oh, and one other thing people are little confused about: in this "dead body" hypothetical, the dead body itself WOULD NOT be excluded from evidence. How could it be, after all? It's a case about the dead person's murder! So all physical evidence relating to manner of death, drug/chemical analysis, clothing, bruising, time of death, etc., etc...that's going to come into evidence no matter what. (Again: the Exclusionary Rule has never, ever been interpreted by the courts as a brain-dead blanket-application rule.)


Isn't there some sort of "fruit of the poisoned tree" principle? If the police gather evidence off of a body that they obtained illegally, isn't that evidence also excluded?
   69. Misirlou's been working for the drug squad Posted: March 20, 2013 at 02:32 PM (#4392653)
Esoteric - You're right. I think the ultimate point is that the body in the closet is a bit of a dopey hypothetical. If cops are aware that there's a body in your closet belong to a person you killed, you're absolutely screwed, and there's no movie-style technicalities that are getting you out of that one.


OK, how about this? Police bring you in for questioning, and you invoke your Miranda rights and refuse to talk without a lawyer. The police ignore that and repeatedly badger you over many hours "Where's the body? Where's the body?" Finally you break down and tell them where the body is. By your definition, they can't use the fact that you knew where the body is against you, but they could gather evidence off the body to hang you. That doesn't seem right.
   70. Esoteric Posted: March 20, 2013 at 02:33 PM (#4392655)
Isn't there some sort of "fruit of the poisoned tree" principle? If the police gather evidence off of a body that they obtained illegally, isn't that evidence also excluded?
The actual physical evidence from the body itself is good and admissible in pretty much every scenario. Again, what CAN be excluded would be stuff like where the body was found, or evidence demonstrating that the defendant knew where the body was (and therefore was likely to be the one who put it there). The classic example is where the police drive a suspect under arrest around in their car, without presence of an attorney, and rail at him to make him tell them "where you hid the body" or guilt-trip him (i.e. "think of her parents -- let them give her a decent burial, at least"). In that case, while the body itself still comes in (as does physical evidence obtained from it that could connect it to the perp is admissible, e.g. DNA or prints), what doesn't come in is the fact that the defendant knew where the body was and directed police to it.
   71. Swedish Chef Posted: March 20, 2013 at 02:37 PM (#4392659)
I gather that if I feel like committing a serious crime in the US my best bet is to bribe a police officer to commit flagrant procedural errors in the investigation and get instant immunity.
   72. Esoteric Posted: March 20, 2013 at 02:38 PM (#4392662)
OK, how about this? Police bring you in for questioning, and you invoke your Miranda rights and refuse to talk without a lawyer. The police ignore that and repeatedly badger you over many hours "Where's the body? Where's the body?" Finally you break down and tell them where the body is. By your definition, they can't use the fact that you knew where the body is against you, but they could gather evidence off the body to hang you. That doesn't seem right.
Misirlou -- I wrote my #70 before you posted your #69, so that's a funny coincidence. But yes, stipulating that this sort of criminal defense isn't my 'game' legally speaking, I do believe that this is more or less the case. The court's rationale (the major case is Nix v. Williams, 1984) is that if the cops can argue that they would have EVENTUALLY found the body anyway through normal police investigation (even though that notional search might have taken who knows how long), the evidence can stay.
   73. Misirlou's been working for the drug squad Posted: March 20, 2013 at 02:39 PM (#4392664)
Misirlou -- I wrote my #70 before you posted your #69, so that's a funny coincidence. But yes, stipulating that this sort of criminal defense isn't my 'game' legally speaking, I do believe that this is more or less the case. If court's rationale (Nix v. Williams is that if the cops can argue that they would have EVENTUALLY found the body anyway through normal police investigation (even though that notional search might have taken who knows how long), the evidence can stay.


Then why would the cops ever let you have a lawyer?
   74. Esoteric Posted: March 20, 2013 at 02:48 PM (#4392681)
Then why would the cops ever let you have a lawyer?
Erm, because of the Sixth Amendment? The Court has extended Sixth Amendment protections not only to the states (that's the famous Gideon v. Wainwright), but also to every stage of a criminal proceeding, including arrest and pre-arrest detainment. The cops WILL often try to trick a suspect into talking before they actually arrest him, which is why anyone who says anything other than "I have nothing to say," "Am I under arrest or am I free to leave, officer?" and "I want to speak to a lawyer" is a ####### fool -- even if they're completely innocent. However, the moment you ARE arrested, Miranda comes into play and the cops are legally required to inform you of your rights, including the right to an attorney -- and once you request counsel they're no longer allowed to interrogate you outside the presence of one.
   75. Misirlou's been working for the drug squad Posted: March 20, 2013 at 02:52 PM (#4392695)
and if you request counsel then they're no longer allowed to interrogate you outside the presence of one.


But in my example they did, and illegally obtained evidence against you, which according you, they can use. Suppose the cops are under huge pressure to crack the case. Say the victim is a prominent person, or there is a serial killer on the loose. If they can gain evidence illegally by denying you counsel, knowing that such evidence can be used against you, why wouldn't they? You think the DA is going to crack down on a couple of cops who brought him the case of his lifetime all tied up in a pretty bow because they broke a little technicality?
   76. Johnny Sycophant-Laden Fora Posted: March 20, 2013 at 03:23 PM (#4392739)
However, the moment you ARE arrested, Miranda comes into play and the cops are legally required to inform you of your rights, including the right to an attorney -- and once you request counsel they're no longer allowed to interrogate you outside the presence of one.


It's a bit more nebulous than that- it can attach before you are formally arrested depending on the circumstances.
   77. Devin has a deep burning passion for fuzzy socks Posted: March 20, 2013 at 03:58 PM (#4392792)
OK, the discussion has gotten beyond this, but does MLB really have sole discretion over the selection of arbitrators? I can't see the MLBPA going along with that.

I also remember a Bill Veeck comment about how the losing side in a major arbitration always fires the arbitrator.
   78. Pops Freshenmeyer Posted: March 20, 2013 at 04:08 PM (#4392811)
OK, the discussion has gotten beyond this, but does MLB really have sole discretion over the selection of arbitrators? I can't see the MLBPA going along with that.

I also remember a Bill Veeck comment about how the losing side in a major arbitration always fires the arbitrator.


IIRC, the MLBPA and MLB each pick one arbitrator for the panel and the third is an "independent" who requires approval from each side so that, in practice, they could be fired by either party.
   79. Walt Davis Posted: March 20, 2013 at 04:14 PM (#4392819)
What I've learned from this thread:

Ryan Braun should stay in the closet.
   80. Poster Nutbag Posted: March 20, 2013 at 04:27 PM (#4392834)
What I've learned from this thread:

Some folks have awfully dangerous interpretations of "fair" and "justice".

"Loophole" is a loosely used term. There is this thing known as "Due Process" for a damn good reason.
   81. Johnny Sycophant-Laden Fora Posted: March 20, 2013 at 06:57 PM (#4393053)
"Loophole" is a loosely used term. There is this thing known as "Due Process" for a damn good reason.


There's "procedural" due process and "substantive" due process

part of the problem is that "due process" itself has historically been a very loosely used term.

Any way, I think Braun's way out of the PED's charge had far more to do with the exploitation of a loophole than it did with any "due process" violation by MLB.

A defendant is denied a lawyer by the cops until after 16 hours of grilling he confesses- that is a due process violation

You lose a lawsuit because the other side is represented by the Judge's old Frat brother- that is a due process violation

A default judgment is entered against you, even though you were never served with a complaint and the next thing you know your bank account has been restrained- that is a due process violation.


Here, the arbitrator excluded a positive test because the sample taker kept it overnight in his fridge- there was no evidence that this affected the test results in any way, there is no evidence that Braun was prejudiced in any way, there was no evidence that the sample was tampered with- some have referred to this as a chain of custody issue- it really isn't- no evidence was presented that the chain of custody was broken/interrupted.

Essentially the arbitrator treated it as a contract matter (which is what is is), and told MLB, the contract says you have to do XYZ, you didn't do XYZ, it doesn't matter that not doing XYZ had no impact on what XYZ is for, you are in breach.

Even in contract law this is a gray area- a judge could just as easily said that MLB substantially complied with the prescribed procedure and in the absence of any evidence that the deviation from prescribed procedure changed any outcome (in this case affected the test result) that such deviation was NOT a breach.

Let's reverse this, let's say a DA and a criminal defendant agree to allow and admit a DNA test, let's say the agreement states that the test will take place on one day and the sample will go to a specified lab within X hours. the test is taken and it exonerates the defendant-
but wait, the DA reneges, refuses to consent to the admission of the test results- why? Because the sample didn't reach the lab within X hours, it reached the lab in X+6 hours - the defendant produces an expert who says, "that had no effect whatsoever on the test results" - the DA says, don't care, it's outside the agreement.

The vast majority of judges would tell the DA, "unless you give me evidence that the test results have or could have been affected those results are going in." - not admitting the results would almost certainly be seen as a due process violation.

This is of course not a criminal case, it's a civil/contract case, but absent any evidence that the test results were wrong somehow (and its my understanding that Braun's people offered no such evidence) this is not remotely a due process issue - Braun exploited a contractual loophole, yippee. (don't get me wrong, I'm not rooting for MLB, the whole org. is run by people who'd exploit a contractual loophole favoring them in a heart beat).
   82. Srul Itza Posted: March 20, 2013 at 07:52 PM (#4393098)
just hold him there and radio for a warrant to get into the trunk of his car.


Does the "automobile" exception to the warrant requirement still exist? I think it does -- if you have probable cause, not need for a warrant, since the evidence might drive off. You still need probable cause.
   83. Srul Itza Posted: March 20, 2013 at 07:53 PM (#4393101)
Isn't there some sort of "fruit of the poisoned tree" principle? If the police gather evidence off of a body that they obtained illegally, isn't that evidence also excluded?


There is also the "inevitable discovery" exception. Sooner or later, presumably, the body would have turned up.
   84. Misirlou's been working for the drug squad Posted: March 20, 2013 at 08:02 PM (#4393107)
There is also the "inevitable discovery" exception. Sooner or later, presumably, the body would have turned up.


Does that depend on how well the body is hid?

Body in the suspect's basement?

Body encased in 16 in of concrete at the bottom of lake Superior?

Are these the same wrt inevitable discovery??
   85. Enten Posted: March 20, 2013 at 08:03 PM (#4393108)
there was no evidence that this affected the test results in any way ... absent any evidence that the test results were wrong somehow (and its my understanding that Braun's people offered no such evidence)


This gets repeated often, but it's simply not true. Will Carroll and Mat Kovach both mentioned it. Part of Braun's successful appeal was that the defense was able to repeat the results using urine that initially tested clean. When subjected to the same conditions as the initial sample and retested, it flagged hot.

I don't care one way or the other if Braun's a user, but the choruses of "loophole! technicality!" still going a year later are annoying me.
   86. Joey B. "disrespects the A" Posted: March 20, 2013 at 08:55 PM (#4393144)
Part of Braun's successful appeal was that the defense was able to repeat the results using urine that initially tested clean. When subjected to the same conditions as the initial sample and retested, it flagged hot.

Some people will believe anything.
   87. Squash Posted: March 20, 2013 at 09:09 PM (#4393153)
This gets repeated often, but it's simply not true. Will Carroll and Mat Kovach both mentioned it. Part of Braun's successful appeal was that the defense was able to repeat the results using urine that initially tested clean. When subjected to the same conditions as the initial sample and retested, it flagged hot.

Is there any actual description of the test and procedures and such that returned the false positive they're referring to, or a citation from a connected source? Neither of those guys said what the process was that returned the false positive or had an outside citation or anything, they both just stated it.
   88. Tulo's Fishy Mullet (mrams) Posted: March 20, 2013 at 09:54 PM (#4393197)
Does the "automobile" exception to the warrant requirement still exist? I think it does -- if you have probable cause, not need for a warrant, since the evidence might drive off. You still need probable cause.


It does, but even here there are some limitations. (of course this varies state to state). Some states will allow the search of the vehicle incident to the arrest, to include interior and trunk but may prohibit an exhaustive search, say under the hood, tearing up the upholstery, etc. w/o a warrant.

as noted this does get rather nebulous, particularly when there are other 3rd parties, and then determinations of whether or not they have an expectation of privacy (generally, no). ex. You're riding shotgun with your buddy, he's pulled over (legitimate stop) and there's PC to search the car for any legitimate reason. Your duffle bag full of weed is in the back seat. You're ######, you have no legitimate expectation of privacy, and now you're going down with your driving buddy. Now this find may lead the cops to go get a 'warrant' to conduct an exhaustive search of the car.
   89. valuearbitrageur Posted: March 20, 2013 at 11:15 PM (#4393251)
Then why do we keep electing teetotaling Republicans and Democrats?


Well, it's pretty well documented that the majority of this country's adults imbibe alcohol, weed, or other drugs on a regular basis. So that part of my assertion doesn't need much defending.

And few politicians are teetotalers, that's pretty well documented as well.

Whether the majority can be considered "independents" is obviously in the eye of the beholder, but I would argue that the very reason we elect politicians who claim to be teetotalers is that we aren't given any other options. The political parties know that any candidate who professes their love for demon rum, evil weed, and/or the angelic effects of prescription mood enhancers immediately starts off well behind their opponent. So do the candidates. So when asked, all politicians rarely drink, have never used illegal drugs, and don't have any affinity for prescription meds.

Or I'm wrong, and by pure chance a population where the majority gets loaded on a regular basis and admits use of illegal drugs at some time in their life consistently elects a 500+ person group of representatives where 90% have never tasted a drop of alchohol, never inhaled from a marijuana cigarette, and never popped a pill for recreational purposes. One of the most astounding statistical conundrums of our time.
   90. bigglou115 Posted: March 20, 2013 at 11:48 PM (#4393279)
It does, but even here there are some limitations. (of course this varies state to state). Some states will allow the search of the vehicle incident to the arrest, to include interior and trunk but may prohibit an exhaustive search, say under the hood, tearing up the upholstery, etc. w/o a warrant.

as noted this does get rather nebulous, particularly when there are other 3rd parties, and then determinations of whether or not they have an expectation of privacy (generally, no). ex. You're riding shotgun with your buddy, he's pulled over (legitimate stop) and there's PC to search the car for any legitimate reason. Your duffle bag full of weed is in the back seat. You're ######, you have no legitimate expectation of privacy, and now you're going down with your driving buddy. Now this find may lead the cops to go get a 'warrant' to conduct an exhaustive search of the car.


You forgot the inventory search. I recently had a case were the cop pulled over a kid, did the whole "I smell pot" thing and took the kid into custody. This was validated by the whole "my years of experience led me to believe..." justification for probable cause. The cop didn't find anything in his search incident to arrest, so he had the car impounded. An impounded car is subject to an inventory search which is much more invasive than the search incident to arrest.

edit: I should mention that this is not what an inventory search is for. In theory, if the inventory search is a ruse to look for incriminating evidence it should be thrown out. An inventory search is really there to theoretically protect the department from liability should your property go missing while your car is impounded. I've just seen it misused so often I felt it should be mentioned.
Does that depend on how well the body is hid?

Body in the suspect's basement?

Body encased in 16 in of concrete at the bottom of lake Superior?

Are these the same wrt inevitable discovery??


Are you asking about in theory, or in practice?

A better example would probably be a search. Say your a criminal and I'm a cop. I see you walking down the street, and you look at me funny and start reaching into your pocket. I've got a reasonable fear for my safety, so I give you a basic Terry stop including a frisk. I feel no weapons or anything like that, but I do feel a bulge in your pocket I suspect is drugs. At this point, I reach in and find the drugs.

If that's the entire story then the drugs are excluded as the result of an improper search.

But, if you had a warrant out for your arrest at the time I found the drugs then they'll get in. I would have arrested you when I called your name in, and then I would have found the drugs in a search incident to arrest.

The prosecution has to prove that the discovery was more likely than not to have happened. So wrt your bodies, theoretically the better hidden the body the less likely inevitable discovery will be used successfully, but practically in something like a murder investigation the police will be found to have likely eventually gotten to the body.
   91. Walt Davis Posted: March 21, 2013 at 02:08 AM (#4393335)
but I do feel a bulge in your pocket

It's a banana!

EDIT: I'll take quotes taken out of context for $1000 Alex.
   92. BFFB Posted: March 21, 2013 at 08:34 AM (#4393373)
^^^

I once saw a video on, I think, live leak where a cop was frisking some guy and asked questioned him regarding a large bulge down his pants leg near his knee and if it was a weapon. The reply from the guy was "It's my penis".

   93. Greg Pope thinks the Cubs are reeking havoc Posted: March 21, 2013 at 08:59 AM (#4393386)
but absent any evidence that the test results were wrong somehow (and its my understanding that Braun's people offered no such evidence) this is not remotely a due process issue - Braun exploited a contractual loophole, yippee.

OK, but it's my understanding that offering evidence would have gotten them nowhere. The rules don't offer appeal for incorrect test results. So the only option open to Braun was exploiting the loophole.

In the body-in-the-closet example, let's say that it was an illegal search. But let's also stipulate that you didn't kill the person and didn't even know the body was there. Your lawyer says to you: Well, the police have some evidence, and you never know what the jury's going to think. We can go to trial, but it doesn't look good for you. Or I can try to argue that the police illegally found the body and try to get it thrown out that way.

Does anybody at all say, "Hey, that's a loophole, don't try that!". Even if Braun was innocent, his best play was to argue chain-of-custody violation (or whatever the correct term is). So he argued that and won. He had no reason to do anything else, so arguing that he didn't do anything else and therefore is guilty, is not fair.
   94. Johnny Sycophant-Laden Fora Posted: March 21, 2013 at 10:04 AM (#4393425)
This gets repeated often, but it's simply not true. Will Carroll and Mat Kovach both mentioned it. Part of Braun's successful appeal was that the defense was able to repeat the results using urine that initially tested clean. When subjected to the same conditions as the initial sample and retested, it flagged hot.


I've read that this was floated by Braun's team to the media, but it wasn't part of the case simply because the "re-test" as described by Kovach didn't happen - if what Kovach says happened don't you think Braun's team would be endlessly asserting it?

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