John T. Floyd Law Firm
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Comments on Criminal Issues
December 31, 2007
THE AGE OF STEROIDS OR STEROID RAGE?
Houston Criminal Attorney John Floyd Discusses Due Process
in Light of Major League Baseball and the Mitchell Report
On December 13, 2007 former Senate Majority Leader George Mitchell submitted to Major League Baseball what has become known as “the Mitchell Report.” The “report” is the culmination of a 20-month investigation into the illegal use of steroids by major league baseball players. The Mitchell Report named 86 current and former players from all 30 major league teams as having used steroids during their playing careers. Two of the most prominent players named in the report are seven-time Cy Young Award winner Roger Clemens and current Yankee and former Astros pitcher Andy Pettitte.
It does not take a “rocket scientist” to figure out that steroids have been illegally used for a long time by athletes, including some of baseball’s “superstars,” to not only enhance their performance but to extend their careers as well. But the Mitchell Report, which the Houston CHRONICLE headlined as a “Dark Day For Baseball,” is disturbing because of the evidentiary methodology its investigators employed to arrive at it reputation-damaging conclusions.
First, the report cited Jose Canseco’s 2005 book “Juice” some 105 times, more than any other source. Canseco’s had a less than stellar career in baseball, was not known by his teammates or professional associates for veracity, and had a self-serving “axe to grind” with major league baseball following his shady career blighted by admitted steroid use.
Second, the report relied upon the compelled testimony of Yankee first baseman and admitted steroid user Jason Giambi, the only active major league player to give testimony to the Mitchell Report investigators. Compelled testimony, and particularly by an individual trying to save his own career, is not noted for either its reliability or credibility.
Third, a former New York Mets clubhouse “attendant” named Kirk Radomski was interviewed four times by the Mitchell Report investigators. Radomski’s compelled cooperation with the Mitchell report was part of a “plea agreement” with federal authorities in connection with a steroids case pending against him. Radomski implicated a number of current and former players to whom he allegedly sold steroids and humane growth hormones. Checks and money orders, telephone records, and/or mailing receipts and shipments were provided to the Mitchell Report investigators as corroborating evidence.
Fourth, Roger Clemens was singled out in eight pages with 82 references by name based solely on information provided by a former New York Yankee strength/conditioning coach named Brian McNamee. There was no documentary evidence or corroborating testimony provided against Clemens. Through his Houston attorney Rusty Hardin, Clemens has denied
McNamee’s allegations that he injected Clemens in the buttocks four to six times with a testosterone called either Sustanon 250 or Deca-Durabolin.
The Mitchell Report puts Major League Baseball in a prickly legal dilemma: which players will it discipline, and, more the point, what will the standard of evidence be?
This dilemma was made evident earlier in this month when Major League Baseball confronted steroids-use allegations involving six players. Two of the players, Jose Guillen and Jay Gibbons, were suspended for the first 15 days of next season while the remaining four players – Gary Matthews, Jr., Rick Ankiel, Troy Glaus and Scott Schoeneweis – were not disciplined because there was “insufficient evidence” to determine they had committed a doping violation.
Why was the “evidence” sufficient in two cases but insufficient in the other four? Without greater transparency as to the nature of the allegations and facts uncovered, along with standard of proof required to justify disciplinary action, the process appears arbitrary and flawed.
Under the Due Process Clause of the Fifth Amendment, the government in a criminal prosecution must prove beyond a reasonable doubt every element of the offense charged. See: In Re Winship, 397 U.S. 358, 364 (1970). A criminal defendant must be acquitted if the government fails to meet its burden of proof on each and every element. Id., at 363.
Obviously this substantive due process standard does not apply to disciplinary proceedings in Major League Baseball. But, given the tremendous damage these allegations and finding due to the players reputations and future ability to earn a living, Baseball should adopt a similar standard of due process and proof.
What Process is Due?
The Fourteenth Amendment prohibits the denial of life, liberty or property without procedural due process of law. The U.S. Supreme Court has said that the “requirements of procedural due process apply only to the deprivation of interests encompassed by the Fourteenth Amendment’s protection of liberty and property. When protected interests are implicated, the right of some kind of prior hearing is paramount. But the range of interests protected by procedural due process is not infinite. See: Board of Regents v. Roth, 408 U.S. 564, 569-70 (1972).
“Procedural due process rules are meant to protect persons not from deprivation, but from the mistaken or unjustified deprivation of life, liberty, or property.” See: Carey v. Piphus, 435 U.S. 247, 259 (1978). Procedural due process imposes a constitutional duty to provide the individual adversely affected with the following six basic requirements in order to prevent such “mistaken or unjustified” deprivations:
•NOTICE – “An elementary and fundamental requirement of due process in any proceeding which is to be accorded finality is notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.” See: Mullane v. Central Hanover Trust Co., 339 U.S. 306, 314 (1950). This notice must be sufficient to inform the party adversely affected of the charges against him and what he must do to protect his interest. See: Goldberg v. Kelly, 397 U.S. 254, 267-68 (1970).
•HEARING – “[S]ome form of hearing is required before an individual is finally deprived of a property interest.” See: Matthews v. Eldridge, 424 U.S. 319, 333 (1976). Further, at this hearing the individual must have an opportunity to be heard. See: Baldwin v. Hale, 68 U.S. (1 Wall) 223, 233 (1863). The notice of the hearing and opportunity to be heard “must be granted at a meaningful time and in a meaningful manner.” See: Armstrong v. Manzo, 380 U.S. 545, 552 (1065). “The constitutional right to be heard is a basic aspect of the duty of government to follow a fair process of decision making when it acts to deprive a person of his possessions. The purpose of this requirement is not only to ensure abstract fair play to the individual. Its purpose, more particularly, is to protect his use and possession of property from arbitrary encroachment …” See: Fuentes v. Shevin, 407 U.S. 67, 80-81 (1972).
•IMPARTIAL TRIBUNAL – Just as in criminal and quasi-criminal cases, “an impartial decision maker” is an “essential” right in civil and administrative proceedings as well. See: Tumey v. Ohio, 273 U.S. 510 (1927). ''The neutrality requirement helps to guarantee that life, liberty, or property will not be taken on the basis of an erroneous or distorted conception of the facts or the law. . . . At the same time, it preserves both the appearance and reality of fairness . . . by ensuring that no person will be deprived of his interests in the absence of a proceeding in which he may present his case with assurance that the arbiter is not predisposed to find against him.” See: Marshall v. Jerrico, 446 U.S. 238, 242 (1980).
•CONFRONTATION AND CROSS-EXAMINATION – “In almost every setting where important decisions turn on questions of fact, due process requires an opportunity to confront and cross-examine adverse witnesses.” See: Goldberg v. Kelly, supra, at 269. In situations where the ''evidence consists of the testimony of individuals whose memory might be faulty or who, in fact, might be perjurers or persons motivated by malice, vindictiveness, intolerance, prejudice, or jealously,'' the individual's right of confrontation and cross examination are of paramount importance. ''This Court has been zealous to protect these rights from erosion. It has spoken out not only in criminal cases, . . . but also in all types of cases where administrative . . . actions were under scrutiny.” See: Green v. McElroy, 360 U.S. 474, 496-97 (1959).
•DECISION ON THE RECORD - “[T]he decisionmaker's conclusion as to a recipients' eligibility must rest solely on the legal rules and evidence adduced at the hearing. . . . To demonstrate compliance with this elementary requirement, the decisionmaker should state the reasons for his determination and indicate the evidence he relied on . . . though his statement need not amount to a full opinion or even formal findings of fact and conclusions of law.” Goldberg v. Kelly, supra, at 271.
•COUNSEL – An individual has a right to be represented at any administrative hearing at which he may suffer a grievous loss. Goldberg v. Kelly, supra, at 270-71.
While all the adversely affected baseball players were offered an opportunity to “testify” before the Mitchell Report investigators, there was no guarantee of procedural due process protections. The Roger Clemens case is the most flagrant example of how unfair and arbitrary the Mitchell Report proceedings were conducted. Based on the Mitchell Report itself, McNamee is the only source of evidence against, arguably, the best pitcher in modern-day baseball. He has suffered a grievous, perhaps irreparable injury to his reputation without the benefit of due process of law.
Inmates appearing before prison disciplinary proceedings enjoy greater procedural due process protections than what was given to Clemens and the other 85 major players. While several of the named players have stepped forward and admitted to performance enhancement use, these admissions of culpability do not erase the damage done to the innocent players named in the Mitchell Report.
The named but innocent players in the Mitchell Report have not only been accused of engaging in unsportsmanlike conduct, they have been accused of a crime. The Anabolic Steroids Control Act of 1990 defines steroids as a Schedule III drug with federal penalties for both the illicit possession and sale of steroids. The following are the federal penalties for both possession and sale of steroids:
•Simple possession of steroids with no prior offenses – up to a year in federal prison; and/or minimum fine of $1,000.
•Simple possession of steroids with certain prior convictions – minimum 15 days in prison, and up to two years in prisons; and/or minimum fine of $2,000.
•Possession with intent to sell – Up to five years in prison; and/or minimum fine of $5,000.
The Texas Health and Safety Code § 481.114 (2007) governs the manufacture and delivery of steroids:
(a) Except as authorized by this chapter, a person commits an offense if the person knowingly manufactures, delivers, or possesses with intent to deliver a controlled substance listed in Penalty Group 3 or 4.
(b) An offense under Subsection (a) is a state jail felony if the amount of the controlled substance to which the offense applies is, by aggregate weight, including adulterants or dilutants, less than 28 grams.
(c) An offense under Subsection (a) is a felony of the second degree if the amount of the controlled substance to which the offense applies is, by aggregate weight, including adulterants or dilutants, 28 grams or more but less than 200 grams.
(d) An offense under Subsection (a) is a felony of the first degree, if the amount of the controlled substance to which the offense applies is, by aggregate weight, including adulterants or dilutants, 200 grams or more but less than 400 grams.
(e) An offense under Subsection (a) is punishable by imprisonment in the institutional division of the Texas Department of Criminal Justice for life or for a term of not more than 99 years or less than 10 years, and a fine not to exceed $100,000, if the amount of the controlled substance to which the offense applies is, by aggregate weight, including any adulterants or dilutants, 400 grams or more.
In Lange v. State, 1999 Tex. App. LEXIS 9232 (Tex.App.-Dallas 1999) the court imposed the following penalties in a simple possession of steroids case:
”Appellant Gerald Thomas Lange was charged in separate indictments with the offenses of possession of a controlled substance, Nandrolone. In trial court no. F96-78437-IK (cause no. 05-98-01975-CR), the amount alleged possessed was in excess of twenty-eight grams but less than two hundred grams. In trial court no. F96-78438-IK (cause no. 05-98-01976-CR), the amount alleged possessed was less than twenty-eight grams. Lange filed a motion to suppress, which was heard in a pretrial hearing and denied by the trial court. Subsequently, Lange waived his right to trial by jury and entered his plea of not guilty before the trial court. After hearing evidence the trial court denied Lange's written and oral motions to suppress and found Lange guilty in each case. 3 The trial court sentenced Lange to five years in prison and a $ 1,000.00 fine in cause no. 05-98-01975-CR and two years in a state jail and a $ 1,000.00 fine in cause no. 05-98-01976-CR. On appeal, Lange challenges the trial court's ruling on both of his motions to suppress.” Id., at 1-2.
In Wall v. State, 878 S.W.2d 686 (Tex.App.-Corpus Christi 1994), a jury imposed the following penalty in a more serious possession with intent to distribute case:
“A jury found appellant guilty of possessing, with intent to deliver, between 200 and 400 grams of anabolic steroids, including adulterants and dilutants. The jury assessed punishment at 35 years in prison.”
At both the federal and state levels the possession of, or intent to distribute, anabolic steroids is a serious criminal offense. And the perjury indictment of Barry Bonds, the home run king of major league baseball, is further evidence of how serious the federal government considers the illegal use of, and trafficking in, steroids.
While hallowed major league baseball records have been shattered through the use of performance enhancing drugs, America is still a society in which due process of law protects each individual from the arbitrary and capricious loss of life, liberty, and property. The accusations leveled in the Mitchell Report not only damaged the integrity of major league baseball but irreparably tarnished the reputations of many players without providing them with even a minimum of due process of law. How the players union allows such a fiasco is a whole other discussion.
The Mitchell Report was indeed a “dark day” for baseball but it was also an example of the arbitrary trampling of the fundamental notions of due process fairness and equity held so constitutionally sacred in this nation.
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