Recusal: Prosecutors in Aaron Hernandez Case Ask Judge to Recuse Herself


Prosecutors in the Aaron Hernandez case are currently making their case for Superior Court Judge Susan Garsh to recuse herself. Hernandez is present at the hearing which is being aired live on ESPN News. Many media outlets will detail what exactly happens during the hearing but here is an overview of what it means for a judge to recuse herself from a case.

The standard for recusal or judicial disqualification is provided by two sections of the United States Code. Section 455 of Title 28 of the United States Code (28 U.S.C. §455) titled “Disqualification of justice, judge, or magistrate judge” and Section 144 titled “Bias or prejudice of judge”.

Disqualification of Justice, Judge, or Magistrate Judge
Section 455(a) provides that, “any justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned. Section 455 goes on to list a number of other reasons a judge should recuse herself from a proceeding.

Bias or Prejudice of Judge
Section 144 titled “Bias or prejudice of judge” provides another avenue for parties in a trial to request a judge recuse herself. Section 144 states,

“Whenever a party to any proceeding in a district court makes and files a timely and sufficient affidavit that the judge before whom the matter is pending has a personal bias or prejudice either against him or in favor of any adverse party, such judge shall proceed no further therein, but another judge shall be assigned to hear such proceeding.”

In this case, the prosecutors seem to be asking the judge to recuse herself under Section 144 due to bias she has shown to prosecutors during questioning of witnesses. While attorneys may file a motion and be heard about why they feel the judge should recuse herself, it is a risky proposition. When filing such a motion, attorneys are essentially asking a judge to disqualify herself because she is biased against them or is not able to be fair. Often times recusal is fairly straightforward such as in a case where the judge has a financial interest in the outcome of the case. In this case however, the prosecutors are claiming the judge is biased against them which is far more personal.

While in a perfect world in which no emotions are involved, there would be no problem with this. However, people have egos; judges are people and some have very large egos. In the likely case the judge does not grant the motion and does not recuse herself, the prosecutors have to face the judge for the rest of the trial and may face consequences from that. While its unlikely a judge will hold a grudge enough to affect the outcome of a trial, she can make life difficult for one side or the other.

So far during the hearing the prosecution has stated their intent is not to “jugde shop”; in other words they are not out to search for a judge that will be partial to them. The defense is now at the podium making their case against the judge’s recusal. It will be interesting to see how the judge rules on this motion but it seems unlikely that she will recuse herself.

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What is ‘Insider Trading’ and Why Did the SEC Sue Mark Cuban?


Dallas Mavericks owner Mark Cuban has been a polarizing figure since purchasing a majority stake in the team in 2000. He’s been one of the most outspoken owners in professional sports, but has garnered the respect of not only fellow owners, players, and fans of the NBA, but of businessmen and women around the world. Cuban made his fortune by taking risks and making shrewd business decisions when necessary, most notably selling internet start-up to Yahoo for $5.7 billion in Yahoo stock in 1999. Recently, one of Cuban’s decisions caught up to him in the form of a civil lawsuit filed against him by the Securities and Exchange Commission (SEC). Fortunately for Cuban, he prevailed in the suit and was found not liable by a Texas jury.

Cuban owned shares of a search software company (now known as Copernic)  which he sold off in June 2004. Shortly after Cuban’s trade, the shares price dropped raising suspicions that Cuban had received information that led him to unload his shares before he lost money on them. Specifically the SEC alleged that Cuban was approached by Chief Executive Guy Faure, with information that the company was planning a private offering of the stock which would dilute the shares. The SEC argued that this information allowed Cuban to sell his shares and avoid taking a $750,000 loss.

Here is an overview of why the SEC sued Cuban. Congress enacted the Securities Exchange Act of 1934 (the “Act”) after the stock market crash of 1929. Section 16(b) of the Act prohibits profits from any purchases and sales within any six-month period (short-swing profits) made by corporate directors, officers, or stockholders owning more than 10% of the firms shares. Enforcement of insider trading laws are not limited to directors, officers, or stockholders owning more than 10% however. An “insider” can be anyone who trades shares based on material non-public information in violation of some duty of trust. In this case, the SEC alleged that Cuban was given information by Mr. Faure and was told to keep this information private. The information that the company planned to make a private offering is without question material information as it had a direct effect on the value of all of the shares. In addition, Cuban allegedly used this information to sell his shares prior to the information becoming public. This would make him liable if the SEC were able to prove that the facts above were true.

In insider trading cases, one of the toughest obstacles encountered is proving evidence. The phone conversation between Mr. Faure and Cuban was not recorded and the only evidence of it was Mr. Faure’s testimony. Cuban’s attorneys were able to poke holes in the SEC’s argument by questioning the validity of Mr. Faure’s testimony. Ultimately the jury found Cuban not liable because the SEC failed to prove that the information Cuban received was ‘non-public’ information. Cuban’s attorneys alleged that other investors knew of the private offering because they were approached about participating.

In addition, Cuban had the benefit of the case being prosecuted in Texas where he is well-known and generally well-liked. The SEC was at a tremendous disadvantage from the start and the lack of evidence and home-court advantage (pun intended) Cuban possessed, proved too difficult to overcome.

Cuban could have settled the case for $2 million, however in his typical defiant manner, he was determined to clear his name. In the process he likely spent more than the $2 million settlement in attorneys fees to do so. Also, in line with the way Cuban has commented on NBA referees in the past, Cuban accused SEC lead attorney Jan M. Folena of being a bully and a liar after the verdict was read. In true Cuban-like fashion, Cuban has paid the price, but has come out on top. One can only wonder what he has in store for the NBA now that he can turn his focus to his beloved Mavericks once again.

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Alex Rodriguez to Sue Yankees Doctor for Malpractice: Will he win?

Alex RodriguezAmong stories about Alex Rodriguez’s attorney, Joe Tacopina being surprised by Matt Lauer on the Today show, Rodriguez claiming a conspiracy to keep him out of baseball, and Red Sox pitcher Ryan Dempster beaning Rodriguez on Sunday night, yet another story has emerged showing Rodriguez is digging in for the long haul in his battle with the Yankees and Major League Baseball. reported yesterday that Rodriguez and his legal team are preparing to sue Yankees team doctor Christopher Ahmad for medical malpractice. Ahmad examined Rodriguez’s right hip during last years playoffs after Rodriguez complained about it “being off”.  Rodriguez had already had surgery on his right hip. The radiologist working with Ahmad reported the following about Rodriguez’s MRI:

“Stable postoperative appearance of the right hip with no evidence of labral re-tear, stable degenerative change, and only minimal gluteus medius insertional tendinosis. Partial evaluation of left hip revealing superior labral tear with small parabal cyst.”

According to the article, the above is a description of the radiologists report and does not include any interpretation from Ahmad. The notes were then sent to Dr. Phillippon who performed the original surgery on Rodriguez’s right hip. Dr. Phillippon reported that Rodriguez needed surgery on his left hip.

Rodriguez and his team believe that Ahmad knew he needed surgery on his left hip but did not disclose that information. The big picture here is that Rodriguez believes the Yankees put him in a position to fail by allowing him to play while he was injured. Rodriguez certainly did not disappoint going 3-for-25 in last years playoffs before being benched by Yankee manager Joe Girardi.

For Rodriguez to successfully sue Dr. Ahmad for medical malpractice, he will have to prove four elements:

  1. A duty was owed to him by the doctor;
  2. The doctor breached that duty or failed to conform to the relevant standard care;
  3. The breach was the direct and proximate cause of the injury; and
  4. Damages.

The first element will not be tough for Rodriguez to establish. As long as Rodriguez was under his care, Dr. Ahmad owed him a duty to conform to the standard of care that another professional in his position would. The second element will be where A-Rod will likely hit a snag. In order to prove that Ahmad breached his duty, A-Rod and his team will have to prove that another person in Ahmad’s position with the same expertise would have acted differently. In order to do so Rodriguez will have to find someone with similar experience as Dr. Ahmad to testify to that end.

Finding someone to testify that Ahmad did conform to the standard of care will not be a walk in the park either. The U.S. legal system has formulated a method of qualifying whether an “expert” witness is in fact, an expert. The approach, often called the ‘gatekeeper’ model is derived from three U.S. Supreme Court cases, Daubert v. Merrell Dow Pharmaceuticals (509 U.S. 579 [1993]), General Electric Co. v. Joiner (522 U.S. 136 [1997]), and Kumho Tire Co. v. Carmichael (526 U.S. 137 [1999]). Using the gatekeeper model, there will be a hearing prior to the trial in which the trial court judge will consider evidence to determine whether the expert’s “testimony rests on a reliable foundation and is relevant to the task at hand.” (Daubert, 509 U.S. at 597). The Daubert hearing will consider four questions regarding the testimony that is being proposed:

  1. Whether a “theory or technique . . . can be (and has been) tested”
  2. Whether it “has been subjected to peer review and publication”.
  3. Whether, in respect to a particular technique, there is a high “known or potential rate of error”
  4. Whether there are “standards controlling the technique’s operation”.

Even if Rodriguez is able to find someone who passes this test, it’s likely the Yankees will produce their own experts who will attempt to show that Ahmad acted properly. In the unlikely event that Rodriguez is able to show Ahmad breached his duty, he will further have to prove that his injury was the direct and proximate cause of Ahmad’s breach and that there were damages caused by that breach.

Based on the facts presented and the reality that Rodriguez has to prove beyond a preponderance of the evidence that Ahmad acted improperly in treating him, it’s unlikely he will be successful in his lawsuit. Although he may not prevail in this lawsuit, Rodriguez and his team have created a sufficient distraction from the real issue: Rodriguez’s PED use. No matter how this suit turns out, they have successfully redirected the attention from his PED use to the Yankees and MLB through his accusations of a conspiracy to keep him out of baseball. In any case, the end to this story will not be pretty.

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What is the CBA and How Can MLB Suspend Alex Rodriguez for Violating It?


The latest news to emerge in the ‘Biogenesis’ saga is that Major League Baseball (MLB) may seek to suspend Yankees third baseman Alex Rodriguez for violating the labor agreement rather than for violating the drug policy. The likely reason MLB is moving in this direction is, based on the Collective Bargaining Agreement (CBA) between MLB and the MLB Players Association (MLBPA), a player who is suspended under the drug policy may continue playing if the MLBPA files a grievance or appeal on his behalf. If a player is suspended for violating terms of the CBA, he must immediately sit out.

So what exactly does it mean for baseball to suspend Rodriguez under the CBA? What is a CBA? CBA’s are brought up very often in a sports context and usually are not explained in depth (for good reason) on major media platforms. I discussed the NBA’s CBA in a previous post, addressing how it is shaping the way teams operate, but I did not explain what a CBA is.

A Brief History of Labor Unions and Collective Bargaining
Congress passed the National Labor Relations Act (NLRA) in 1935 guaranteeing certain basic rights of private sector employees by allowing them to form unions, engage in collective bargaining with management and take collective action (i.e. strike) if necessary (in addition to establishing the National Labor Relations Board to oversee and enforce the NLRA).  A CBA is any agreement between a union and management of an organization. In basketball, football, hockey and  baseball, the unions are the players associations while ‘management’ is usually comprised of the owners (and the commissioner of the league whose primary constituents are the owners).

The Strength of the MLBPA
Baseball’s player union, the MLBPA, is arguably the strongest among major professional sports. The MLBPA formed in 1954 and baseball had it’s first CBA in 1968. Since then, the sport has had eight work stoppages since 1972 with the MLBPA winning virtually all of the disputes. This has led to the strength of the union as well as baseball players having some of the highest salaries in professional sports. It’s also the reason Alex Rodriguez has been able to sign two contracts worth over $200 million during his career.

The CBA Rule Rodriguez May Have Violated
In MLB’s CBA, Article XII B of the Basic Agreement, states:

“Players may be disciplined for just cause for conduct that is materially detrimental or materially prejudicial to the best interests of baseball including, but not limited to, engaging in conduct in violation of federal, state or local law.”

This clause is known as the “best interest of the game” clause that all major professional sports commissioners possess in some capacity. It gives a commissioner ultimate power to take action they feel is necessary to protect the best interest of the game. Although the use of the clause can be effective, most commissioners use it sparingly (although Selig has been creative in interpreting the language in the past). If suspended for violating that provision, Rodriguez  will be forced to sit out immediately while an arbitrator rules on any grievance filed by the union on Rodriguez’s behalf. The only situation in which Rodriguez would be allowed to play is if the arbitrator grants a stay which is unlikely as it would overrule the CBA.

What’s Next?
Rodriguez’s attorney, David Cornwell, who successfully appealed Ryan Braun’s 50-game suspension in 2012, says no ‘plea deal’ for Rodriguez has been discussed with Major League Baseball. Braun recently reached a deal to sit out the remainder of this season for violating the drug policy in connection with the same clinic Rodriguez is being investigated for.  MLB is likely pursuing a suspension of Rodriguez for violating the labor agreement to strengthen it’s leverage in negotiating a suspension with Rodriguez.

Although it’s unlikely MLB will seek a lifetime ban for Rodriguez, at 38 years old and plagued by injuries, any significant suspension is likely to severely shorten or end his major league career. MLB is expected to announce it’s bans for Rodriguez and other players involved in the Biogenesis scandal this week.

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Barrett Green’s Lawsuit Against the Washington Redskins: Could this Change Pro Sports?


While many people think the NFL’s concussion litigation could end up changing the game (some may argue it already has), it could very well be a lawsuit filed last week by former Detroit Lions and New York Giants linebacker Barrett Green. Green, who played in the NFL from 2000-2004, is suing the Washington Redskins and their former defensive coordinator Gregg Williams for an on the field hit in 2004, by former Redskins tight end Robert Royal, who is also named in the lawsuit. The hit resulted in a severe knee injury for Green and ended his career. Williams is best known for “Bountygate”, in which he was accused of implementing a system in which his players were paid to injure players on the opposing team, while he was a defensive coordinator with the New Orleans Saints.

Green alleges that a bounty on him led to his injury and he is entitled to $10 million in lost wages. He was in the first year of a 5 year, $13 million contract when he was injured. The reason this lawsuit, if successful, is more likely to change the NFL is it could open the flood gates to individual lawsuits from players alleging the same as Green. Any player who feels he was a target of a Williams bounty could file a suit in hopes of cashing in.

There are a few substantial obstacles Green will have to overcome in order to be successful. First, the football is an inherently violent game; courts have generally held that when a player steps onto the field of play, he accepts a certain amount of risk associated with doing so. Courts have stated that in order for there to be a claim for injury on the field of play, the plaintiff must show a reckless disregard for safety and an intent to injure outside the scope of the game. This principle is commonly referred to as the “contact sports exception” to negligence. Hackbart v. Cincinnati Bengals, Inc., 601 F.2d 516 (10th Cir. 1979) is a primary case that courts look to when ruling on situations such as this.

In Hackbart, the plaintiff, Dale Hackbart, was injured during a game between the Bengals and the Denver Broncos. Bobby Thompson of the Broncos had just intercepted a pass from the Bengals and returned it to midfield. Frustrated by the interception, Bengals fullback Charles “Boobie” Clark, struck Hackbart in the back of the head with his forearm. No penalty was called on the play and both players finished the game. Hackbart, after being waived by the Broncos later that season, sought medical attention and it was discovered he had a neck fracture from the hit by Clark. Hackbart sued the Bengals and the court ultimately ruled that although players consent to a certain amount of violence when stepping on the football field, conduct expressly prohibited by the rules and done with the intention to injure, can be the basis for civil liability. See Id.

The idea is that actions that occur on the field of play are not looked at the same as they would be if they occurred off the field. For example, if you are tackled by someone while walking down the street, there’s a great chance the person who tackled you will be arrested and charged with battery and that you will be able to successfully sue them. Although a certain amount of contact is assumed in football, the fact that football is an inherently violent game, does not justify players intentionally injuring other players. This is the principle that Green will have to hang his hat on when arguing his case. He will have to show that the bounties Williams was accused of offering while coaching the Saints, were being offered at the time of his injury and that his injury was a result of a hit that was delivered with the intent to injure and outside of the rules of the game. It likely won’t be difficult to show that Williams was offering bounties while coaching the Redskins. According to ESPN, a number of former Redskins players admitted to Williams offering bounties while coaching them from 2004-2007.

A second obstacle Green will face is the statute of limitations may have run on his case. This means it may have been too long since the date of the injury for him to file the suit. The statute of limitations for a battery case in Maryland, where Green filed his suit, is three years. Green’s injury occurred in 2004 and so it would seem as if the statute of limitations has passed. However, there is an exception to the statute of limitations that Green may be able to invoke. The discovery rule  is a common law doctrine that suggests the statute of limitations may not start running until the injured party discovers the injury.  Although Green cannot claim he did not know he was injured since he tore his ACL, he will likely claim that he was unaware that the hit was outside the rules of the game and therefore unaware he had a case until the bounty scandal was uncovered in 2012. Under that presumption, the ‘clock’ on the three year statute of limitations would not have started until last year.

It will be tough however, for Green to prove that he did not know he had a case until last year. According to the suit, just two days after the hit in 2004, Green was quoted in the New York Post saying, “It wasn’t an accident, he shot at my legs; it was intentional. Hopefully the league will take notice, because they seem to do something when defensive guys do something.” Because of his admission, a court would likely rule that Green had enough information to file a lawsuit and the statute of limitations began in 2004.

Although it’s unlikely Green will prevail in his lawsuit, nothing can be written in stone. That idea has been demonstrated recently by the high profile murder cases of George Zimmerman and Casey Anthony and is demonstrated daily in courts across the nation. When a case goes to trial and is in the hands of a jury, nothing is guaranteed and anything can happen. That being said, if Green is successful, the effect on the NFL and possibly other professional sports could be enormous.

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O’Bannon v. NCAA: What is antitrust and what does it all mean?


Most of us (over a certain age) remember Ed O’Bannon cutting down the nets as a star at UCLA. Now he has become the face of an historic lawsuit against the NCAA which could change the way college athletics operate forever. Last week, U.S. District Court Judge Claudia Wilken ruled she is going to allow the plaintiffs in O’Bannon v. NCAA to add a current college athlete to the suit.

In case you are not completely familiar with this suit, former UCLA basketball star Ed O’Bannon filed an antitrust lawsuit against the NCAA for using his name, images, and likeness to make billions of dollars, none of which O’Bannon has been entitled to. Since the suit was filed more than four years ago, O’Bannon has been able to add former NCAA athletes as plaintiffs including NBA legends Bill Russell and Oscar Robertson. The plaintiffs contend that they are entitled to a share of the television revenue and revenue from video games and other digital and electronic media generated by schools and the NCAA. EA Sports (a leading developer of sports video games), and the Collegiate Licensing Company (which handles trademarks and licensing for most schools) are also defendants in the case.

What are ‘antitrust’ laws and what do they have to do with the NCAA?
Congress passed the Sherman Antitrust Act in 1890 (the “Act”) prohibiting certain business activities that federal government regulators deem to be anticompetitive or ‘in restraint of trade’. There are three sections to the act, Section 1 focuses on the specific means of achieving anti-competitive conduct, Section 2 focuses on whether the end result is anti-competitive and Section 3 extends Section 1 to U.S. Territories and the District of Columbia.

Section 1 has three elements:

  • An agreement;
  • which unreasonably restrains trade; and
  • effects interstate commerce.

Section 2 has two elements:

  • The possession of monopoly power in the relevant market; and
  • the willful acquisition or maintenance of that power as distinguished from growth or development as a consequence of a superior product, business acumen, or historic accident.

The violation that O’Bannon and the rest of the plaintiffs allege against the NCAA is price-fixing. Price-fixing occurs when two parties agree to sell a product at a certain price rather than allowing the market to determine the price. Price-fixing can be seen as a ‘per-se’ violation of Section 1 of the Act, meaning the intentions of the parties or the effects of their actions do not matter, only that there is evidence that prices were fixed. In the alternative, courts can apply the ‘rule of reason’ when analyzing whether a price-fixing scheme exists and whether it is in violation of Section 1 of the Act. In this case, the plaintiffs allege that the NCAA is restraining trade by not allowing college athletes to realize their potential market value.

What is the current status of the case?
Two weeks ago, U.S. District Judge Claudia Wilken heard arguments over whether the plaintiffs can certify the lawsuit as a class action. Wilken has not yet made a decision on whether to certify the class but this week she announced she is allowing a current college athlete to join the plaintiffs in the lawsuit. This does not mean she is going to certify the class but it could be a good indication that she may. The plaintiffs have two weeks to amend their complaint adding a current college athlete to the suit. This should not be an issue as the lawyers for the plaintiffs say they have ‘a number of current athletes’ who are interested. Currently there are about a dozen plaintiffs including O’Bannon but if Wilken certifies the suit as a class action, thousands of former and current athletes could join increasing the potential damages into possibly billions of dollars.

What does all of this mean?
The final decision in this lawsuit could mean that the ‘amateurism’ of college athletics may be over for good. If this case is ruled in favor of the plaintiffs, it means the NCAA may have to pay a cut of their broadcast and other digital media revenue to NCAA Division I football and mens basketball players. One scenario would be to place funds for each player into a trust allowing them to access it once they leave school or reach a certain age. In any case, the ramifications of this case could be huge and mean the end of college athletics as we have known it.

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Can Sheriff Thomas M. Hobson keep Aaron Hernandez from Marrying?

Earlier today it was reported that Bristol County Sheriff Thomas Hobson told USA Today that he would not allow Aaron Hernandez to marry his fiance Shayanna Jenkins. Hobson said:

”I don’t subscribe to that. I feel that those rights are things that you access on the outside, if you’re a good citizen, we’ll do everything we can to not have that happen.”

Unfortunately for Hobson, despite being in charge of the prison where Hernandez is being held, he may not be in a position to deny Hernandez the right to marry.

The United States Constitution affords a number of protections to the citizens of this country and one of those is the right to marry. Once a person is in prison however, their rights are drastically diminished. Prisons are given a great amount of discretion over what they will and will not allow prisoners to do. This does not mean however, that prisoners can be deprived of all of their rights. Inmates frequently challenge prisons in court over their rights and the right to marry is no exception.

In a landmark decision that legalized interracial marriage, the Supreme Court in Loving v. Virginia 388 U.S. 1 (1967), held that the right to marry is a fundamental right that is protected by the ‘liberty’ element of the Due Process Clause of the Fourteenth Amendment of the United States (to provide some perspective on the importance of this case, the decision has been recently brought up in the fight for same-sex marriage).

Applying Loving to prisoners rights, the Supreme Court in Turner v. Safley 482 U.S. 78 (1987), addressed the constitutionality of two prison regulations, one being a prisoners right to marry. The Court established a reasonableness standard when deciding whether a prison regulation that ‘impinges’ upon an inmates constitutional rights is valid. The Court used four factors in deciding whether a regulation was reasonable:

  • Whether there is a valid, rational connection between the prison regulation and the legitimate governmental interest put forward to justify it.
  • Whether there are alternative means of exercising the right that remain open to prison inmates.
  • The impact the accommodation of the asserted constitutional right will have on guards and other inmates, and on the allocation of prison resources generally.
  • Finally, the absence of ready alternatives is evidence of the reasonableness of a prison regulation.

The Court in Turner struck down the Missouri prison regulation preventing prisoners from marrying based on the fact that it violated the prisoners constitutional rights.

If Sheriff Hobson does not allow Hernandez to marry and Hernandez decides to challenge that decision, the court may take into consideration whether Hernandez is only doing so to prevent his fiance from testifying against him. It will be difficult however, for a court to conclude that he has a single motivation because Hernandez and Jenkins were engaged and have a child together.  In addition, as I mentioned in an earlier post, courts in Massachusetts have generally been reluctant to force a spouse to testify even if the marriage seemed to have been consummated for the sole purpose of invoking ‘spousal privilege’.

What does all of this mean? It means that although Sheriff Hobson is ambitious and is trying to protect the integrity of the case, it’s likely that he will not be able to deprive Hernandez of his right to marry his fiance, Shayanna Jenkins.

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