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Author Topic:   Deflation-gate
NoNukes
Inactive Member


Message 331 of 466 (779681)
03-07-2016 12:57 AM
Reply to: Message 329 by Percy
03-06-2016 2:01 PM


Re: Appeals Hearing: Concerns About Phone
and that must be recognized by the court.
Recognized in what way?
Why are Brady's concerns any greater or more substantial than those of anyone other person or corporation who elects to destroy evidence prior to a court hearing? I would suggest that Brady is nothing special when the situation is viewed in that light. And again, let's not confuse withholding information from the NFL with destroying the phone. It is the latter that cannot be justified from a legal standpoint. Wasn't Brady advised by counsel?
To uphold the NFL now by elevating to top level importance matters having nothing to do with football deflation makes no sense.
Destroying evidence is irrelevant? Is that really what you meant to convey here? And has the destruction been evaluated to top level importance? Has a ruling been issued yet or are we just looking at some of the things the judges have said so far.
Too many people keep forgetting that this is supposed to be about deflated footballs, something that likely never happened
Deflated footballs and possibly covering up same.
Edited by NoNukes, : No reason given.
Edited by NoNukes, : No reason given.
Edited by NoNukes, : No reason given.

Under a government which imprisons any unjustly, the true place for a just man is also in prison. Thoreau: Civil Disobedience (1846)
History will have to record that the greatest tragedy of this period of social transition was not the strident clamor of the bad people, but the appalling silence of the good people. Martin Luther King
If there are no stupid questions, then what kind of questions do stupid people ask? Do they get smart just in time to ask questions? Scott Adams

This message is a reply to:
 Message 329 by Percy, posted 03-06-2016 2:01 PM Percy has replied

Replies to this message:
 Message 332 by Percy, posted 03-07-2016 9:18 AM NoNukes has replied

  
Percy
Member
Posts: 22392
From: New Hampshire
Joined: 12-23-2000
Member Rating: 5.3


(1)
Message 332 of 466 (779702)
03-07-2016 9:18 AM
Reply to: Message 331 by NoNukes
03-07-2016 12:57 AM


Re: Appeals Hearing: Concerns About Phone
NoNukes writes:
Why are Brady's concerns any greater or more substantial than those of anyone other person or corporation who elects to destroy evidence prior to a court hearing? I would suggest that Brady is nothing special when the situation is viewed in that light. And again, let's not confuse withholding information from the NFL with destroying the phone. It is the latter that cannot be justified from a legal standpoint. Wasn't Brady advised by counsel?
If you're saying that mitigating circumstances shouldn't be a consideration, such as Brady's concerns about personal non-football information on his cellphone leaking out publicly, then I guess we just disagree.
Regardless, Judge Berman's decision didn't touch on the cellphone issue, other than in the paragraphs summarizing Goodell's arbitration decision. Here again is the summary of Berman's decision (for reference, here is the PDF of Berman's decision):
  1. Inadequate Notice of Discipline and Misconduct
    1. No Notice of Four-Game Suspension: Steroid Use Comparison
    2. No Notice of Any Discernible Infraction
    3. No Notice of Suspension as Opposed to Fine: Competitive Integrity Policy vs. Player Policies
  2. Commissioner Goodell Improperly Denied Brady the Opportunity to Examine Designated Co-Lead Investigator Jeff Pash
  3. Commissioner Goodell Improperly Denied Brady Equal Access to Investigative Files
Nothing there about a cellphone. How would the appeals court use the cellphone issue to overturn on any of these points? If they overturn I think it would have to be on other grounds.
--Percy
Edited by Percy, : Grammar.

This message is a reply to:
 Message 331 by NoNukes, posted 03-07-2016 12:57 AM NoNukes has replied

Replies to this message:
 Message 333 by NoNukes, posted 03-07-2016 1:37 PM Percy has replied

  
NoNukes
Inactive Member


Message 333 of 466 (779728)
03-07-2016 1:37 PM
Reply to: Message 332 by Percy
03-07-2016 9:18 AM


Re: Appeals Hearing: Concerns About Phone
If you're saying that mitigating circumstances shouldn't be a consideration, such as Brady's concerns about personal non-football information on his cellphone leaking out publicly, then I guess we just disagree.
Not quite. Mitigating circumstances can affect what sanctions, if any are applied. If the evidence in question is replaceable, the sanction might be a warning. But IMO, Brady's particular case is not all that compelling, compared tot he kinds on things that regularly show up in court. That's based on my experience with the kinds of things I've seen judges do. If we disagree on that, then so be it.
Regardless, Judge Berman's decision didn't touch on the cellphone issue, other than in the paragraphs summarizing Goodell's arbitration decision.
Yes, which makes me wonder why you pummeled the judge for mentioning it. That's pretty much the comment that drew me back into this.

Under a government which imprisons any unjustly, the true place for a just man is also in prison. Thoreau: Civil Disobedience (1846)
History will have to record that the greatest tragedy of this period of social transition was not the strident clamor of the bad people, but the appalling silence of the good people. Martin Luther King
If there are no stupid questions, then what kind of questions do stupid people ask? Do they get smart just in time to ask questions? Scott Adams

This message is a reply to:
 Message 332 by Percy, posted 03-07-2016 9:18 AM Percy has replied

Replies to this message:
 Message 336 by Percy, posted 03-07-2016 3:12 PM NoNukes has replied

  
xongsmith
Member
Posts: 2578
From: massachusetts US
Joined: 01-01-2009
Member Rating: 6.8


Message 334 of 466 (779729)
03-07-2016 1:48 PM
Reply to: Message 329 by Percy
03-06-2016 2:01 PM


Re: Appeals Hearing: Concerns About Phone
But isn't it true that they already have all the phone messages they need from the other guys, who did not destroy their phones? The locker room attendants?

- xongsmith, 5.7d

This message is a reply to:
 Message 329 by Percy, posted 03-06-2016 2:01 PM Percy has seen this message but not replied

Replies to this message:
 Message 335 by NoNukes, posted 03-07-2016 2:06 PM xongsmith has replied

  
NoNukes
Inactive Member


Message 335 of 466 (779732)
03-07-2016 2:06 PM
Reply to: Message 334 by xongsmith
03-07-2016 1:48 PM


Re: Appeals Hearing: Concerns About Phone
But isn't it true that they already have all the phone messages they need from the other guys, who did not destroy their phones? The locker room attendants?
Possibly. But text messages are easily deleted. A phone might contain evidence of those deletions. The best suggestion of good faith is Brady's claim that he tried to have the phone company produce the messages, but if there was such an attempt, it failed.

Under a government which imprisons any unjustly, the true place for a just man is also in prison. Thoreau: Civil Disobedience (1846)
History will have to record that the greatest tragedy of this period of social transition was not the strident clamor of the bad people, but the appalling silence of the good people. Martin Luther King
If there are no stupid questions, then what kind of questions do stupid people ask? Do they get smart just in time to ask questions? Scott Adams

This message is a reply to:
 Message 334 by xongsmith, posted 03-07-2016 1:48 PM xongsmith has replied

Replies to this message:
 Message 344 by xongsmith, posted 03-08-2016 5:08 PM NoNukes has not replied

  
Percy
Member
Posts: 22392
From: New Hampshire
Joined: 12-23-2000
Member Rating: 5.3


Message 336 of 466 (779736)
03-07-2016 3:12 PM
Reply to: Message 333 by NoNukes
03-07-2016 1:37 PM


Re: Appeals Hearing: Concerns About Phone
NoNukes writes:
Regardless, Judge Berman's decision didn't touch on the cellphone issue, other than in the paragraphs summarizing Goodell's arbitration decision.
Yes, which makes me wonder why you pummeled the judge for mentioning it. That's pretty much the comment that drew me back into this.
I was reacting to the media firestorm about the possibility that the cellphone focus meant the three-judge panel was likely to overturn. Here are just a few examples:
And here are some quotes from the judges contained in various articles:
quote:
"With all due respect, Mr. Brady's explanation made no sense whatsoever." -- Judge Barrington Parker
"The destruction of the phone is taking this just one step further." -- Judge Danny Chin
"You all had notice with the cell phone issue. Anybody within 100 yards of this case would have known that the cell phone issue elevates this merely from deflated balls to a serious issue of obstruction." -- Parker
I find the amount of attention the judges gave an issue not relevant to Berman's decision troubling. Don't you? You claim familiarity with the court system - do appeals judges normally focus a lot of attention during oral arguments on issues that play no role in their later ruling?
The NFL suspended Brady for four games on trumped up charges. When those charges became dubious they added a charge of destruction of his cellphone, something Brady likely wouldn't have done had the NFL not suspended him for four games on trumped up charges.
--Percy

This message is a reply to:
 Message 333 by NoNukes, posted 03-07-2016 1:37 PM NoNukes has replied

Replies to this message:
 Message 337 by NoNukes, posted 03-07-2016 5:19 PM Percy has replied
 Message 345 by xongsmith, posted 03-08-2016 5:13 PM Percy has seen this message but not replied

  
NoNukes
Inactive Member


Message 337 of 466 (779747)
03-07-2016 5:19 PM
Reply to: Message 336 by Percy
03-07-2016 3:12 PM


Re: Appeals Hearing: Concerns About Phone
I find the amount of attention the judges gave an issue not relevant to Berman's decision troubling. Don't you? You claim familiarity with the court system
I do have some familiarity with the federal court system, yes. I have not personally appeared in federal court on a civil matter, but I have drafted motions, sat in court during trials, etc. I am familiar with the rules of federal procedure.
Percy writes:
do appeals judges normally focus a lot of attention during oral arguments on issues that play no role in their later ruling?
No, they don't. But your question is loaded with assumptions that may not be correct. The first assumption is whether the judge actually did focus a lot of attention on the issue in question.
Beyond that it appears that we are re-arguing an old point of controversy. The issue of destroying the phone may well have some role in the final ruling. That role could involve the assessment of the judgments made prior to the case reaching the appellate court.
What I will note here is that the comments by the judges fit exactly with my expectations. Withholding the phone from the NFL is a calculated move and I understand Brady's reasoning completely. Destroying the phone was not a well calculated move.
The NFL suspended Brady for four games on trumped up charges.
You and I cannot discuss this particular aspect without generating more heat than light. I'll just say that reasonable minds might disagree on the merit of the original charges, the importance of the phone as evidence, and on the nature of the process the NFL was required to use. I hope that I am not really saying something controversial enough to draw an insult that I cannot manage to ignore. We disagree. That should be fine.
Edited by NoNukes, : No reason given.

Under a government which imprisons any unjustly, the true place for a just man is also in prison. Thoreau: Civil Disobedience (1846)
History will have to record that the greatest tragedy of this period of social transition was not the strident clamor of the bad people, but the appalling silence of the good people. Martin Luther King
If there are no stupid questions, then what kind of questions do stupid people ask? Do they get smart just in time to ask questions? Scott Adams

This message is a reply to:
 Message 336 by Percy, posted 03-07-2016 3:12 PM Percy has replied

Replies to this message:
 Message 338 by Percy, posted 03-08-2016 9:12 AM NoNukes has replied

  
Percy
Member
Posts: 22392
From: New Hampshire
Joined: 12-23-2000
Member Rating: 5.3


(1)
Message 338 of 466 (779771)
03-08-2016 9:12 AM
Reply to: Message 337 by NoNukes
03-07-2016 5:19 PM


Re: Appeals Hearing: Concerns About Phone
The cellphone issue brings to mind some local "justice" from a while back. The Amirault family ran a daycare center in Massachusetts and were charged with child sexual abuse, something that never happened*. Violet, Gerald and Cheryl were given long prison sentences. When Cheryl's sentence was eventually reduced to time served she remained in prison serving her time for violating prison rules for getting into a fight, something that never would have happened had she not been in prison for something that never happened.
Sometimes justices and government officials are confronted with situations where the law doesn't permit justice, and then they search their souls for a way to do right. The Amiraults never did receive justice (though they're out of prison or deceased, the convictions stand), and if Brady's cellphone figures materially in the final deflategate outcome then he won't have received justice either.
NoNukes writes:
I hope that I am not really saying something controversial enough to draw an insult that I cannot manage to ignore.
Any insults are unintended. I'm only being as aggressive in defense of my positions as your assaults, and if I occasionally step over the line into insult then I apologize.
--Percy
*The Fells Acre Day Care Center child sexual abuse case frequently made the national news during the 1980's, so it may sound familiar to you. It was one of a suite of child sexual abuse cases that, in tandem with the recovered memory cases, forced the eventual realization that false memories can be implanted in both children and adults, young children most easily.

This message is a reply to:
 Message 337 by NoNukes, posted 03-07-2016 5:19 PM NoNukes has replied

Replies to this message:
 Message 339 by NoNukes, posted 03-08-2016 10:40 AM Percy has replied

  
NoNukes
Inactive Member


Message 339 of 466 (779780)
03-08-2016 10:40 AM
Reply to: Message 338 by Percy
03-08-2016 9:12 AM


Re: Appeals Hearing: Concerns About Phone
something that never would have happened had she not been in prison for something that never happened.
...and if Brady's cellphone figures materially in the final deflategate outcome then he won't have received justice either.
I highly doubt that the there will be any sanctions for destroying the cellphone that are not relevant to the case. The court does have a lot of discretion (under rule 37) but discretion is not complete. Allowed relief is targeted at whether the missing evidence affects the case in question based on what the other side is attempting to prove. I
f in fact the decision is that the missing evidence is relevant to the case, then I see some substantial departures from your analogy with the Amirault family. For example, destroying the evidence might be deemed part of the cover up, and the trier of fact could make limited findings based on the fact that the evidence was not available. Beyond that, one might not have any choice but to fight in prison, but one does have a chose on whether or not to destroy a phone.
If however, Brady's lawyers advised him to destroy the phone, his lawyers might be punished under Rule 11 which allows for quite severe punishment. So far, I don't see anything to suggest that. Yeah, that too is something that would not have happened if Brady had not been suspended, but we might say the same thing about things like spitting on the judge, or dropping trousers in the middle of court proceedings.

Under a government which imprisons any unjustly, the true place for a just man is also in prison. Thoreau: Civil Disobedience (1846)
History will have to record that the greatest tragedy of this period of social transition was not the strident clamor of the bad people, but the appalling silence of the good people. Martin Luther King
If there are no stupid questions, then what kind of questions do stupid people ask? Do they get smart just in time to ask questions? Scott Adams

This message is a reply to:
 Message 338 by Percy, posted 03-08-2016 9:12 AM Percy has replied

Replies to this message:
 Message 340 by Percy, posted 03-08-2016 10:57 AM NoNukes has replied

  
Percy
Member
Posts: 22392
From: New Hampshire
Joined: 12-23-2000
Member Rating: 5.3


(1)
Message 340 of 466 (779788)
03-08-2016 10:57 AM
Reply to: Message 339 by NoNukes
03-08-2016 10:40 AM


Re: Appeals Hearing: Concerns About Phone
NoNukes writes:
If however, Brady's lawyers advised him to destroy the phone,...
My understanding is that Brady's agent advised him to destroy the phone, but if that were true then why did Brady testify during his arbitration hearing with Goodell that he always destroys his cell phones when obviously he doesn't "always." I do think Brady was trying to hide information, but not about football deflation.
I think we agree that Brady's concerns that the NFL wouldn't be able to keep the information on his phone confidential were legitimate, and when one imagines a protracted battle over the phone conducted in the media because of the NFL's inability to keep anything secret, destruction of the phone doesn't seem so ill-advised. The current focus on the destroyed cellphone may be the best of bad outcomes.
--Percy

This message is a reply to:
 Message 339 by NoNukes, posted 03-08-2016 10:40 AM NoNukes has replied

Replies to this message:
 Message 341 by NoNukes, posted 03-08-2016 11:07 AM Percy has replied

  
NoNukes
Inactive Member


Message 341 of 466 (779791)
03-08-2016 11:07 AM
Reply to: Message 340 by Percy
03-08-2016 10:57 AM


Re: Appeals Hearing: Concerns About Phone
My understanding is that Brady's agent advised him to destroy the phone, but if that were true then why did Brady testify during his arbitration hearing with Goodell that he always destroys his cell phones when obviously he doesn't "always." I do think Brady was trying to hide information, but not about football deflation.
That's possible yes. FWIW, Brady might have response could be completely truthful and understandable if he suspected that destroying the phone in this instance might have been a bad idea even just for appearances. The agent would have then been saying 'do what you normally do'. I dunno. Maybe Brady does always destroy his phones. Corporations normally shred old documents too. But when there is legal action anticipated, they have to stop that activity.
I think we agree that Brady's concerns that the NFL wouldn't be able to keep the information on his phone confidential were legitimate,
Agreed up to this point. The problem is that destruction was unnecessary to keep the phone away from the NFL without a subpoena and a cause of legal difficulty if the NFL were able to subpoena.
and when one imagines a protracted battle over the phone conducted in the media because of the NFL's inability to keep anything secret, destruction of the phone doesn't seem so ill-advised.
Yes, it does seems ill-advised, particularly if Brady's agent is a lawyer. I'll change my mind about how good the advice is if the case ends with Brady not being punished. At that point I'll celebrate his lawyers' great legal acumen and ability to predict the end of the case. But right now it sure seems like putting the phone in a safe deposit box would have been a good move.
Edited by NoNukes, : No reason given.
Edited by NoNukes, : No reason given.

Under a government which imprisons any unjustly, the true place for a just man is also in prison. Thoreau: Civil Disobedience (1846)
History will have to record that the greatest tragedy of this period of social transition was not the strident clamor of the bad people, but the appalling silence of the good people. Martin Luther King
If there are no stupid questions, then what kind of questions do stupid people ask? Do they get smart just in time to ask questions? Scott Adams

This message is a reply to:
 Message 340 by Percy, posted 03-08-2016 10:57 AM Percy has replied

Replies to this message:
 Message 342 by Percy, posted 03-08-2016 11:16 AM NoNukes has replied

  
Percy
Member
Posts: 22392
From: New Hampshire
Joined: 12-23-2000
Member Rating: 5.3


(1)
Message 342 of 466 (779796)
03-08-2016 11:16 AM
Reply to: Message 341 by NoNukes
03-08-2016 11:07 AM


Re: Appeals Hearing: Concerns About Phone
NoNukes writes:
But right now it sure seems like putting the phone in a safe deposit box would have been a good move.
But look at how relentless the NFL has been in their pursuit of Brady. They would get a court order to open the safe deposit box. Brady could refuse to provide his key and be subpoenaed and held in contempt, and then they would drill it out anyway.
--Percy

This message is a reply to:
 Message 341 by NoNukes, posted 03-08-2016 11:07 AM NoNukes has replied

Replies to this message:
 Message 343 by NoNukes, posted 03-08-2016 11:55 AM Percy has replied

  
NoNukes
Inactive Member


Message 343 of 466 (779800)
03-08-2016 11:55 AM
Reply to: Message 342 by Percy
03-08-2016 11:16 AM


Re: Appeals Hearing: Concerns About Phone
But look at how relentless the NFL has been in their pursuit of Brady. They would get a court order to open the safe deposit box. Brady could refuse to provide his key and be subpoenaed and held in contempt, and then they would drill it out anyway.
How would they have found out which bank the box was in? Would Brady have told them that the phone was in a bank? Was Brady afraid of being rubber hosed, or that enough pressure would be applied to make him change his mind about giving up the phone. I don't think the NFL would have had a chance at getting that phone. At least absent a subpoena.
Obviously, my perspective on this is different from yours. I don't believe that the bargaining agreement allows the NFL to issue subpoenas unless the case ends up in court. Beyond that, I don't respect a right to defy a court order. Unlike the NFL, the court could easily have made arrangements to keep secrets out of the public eye. They do such things routinely.
Edited by NoNukes, : No reason given.

Under a government which imprisons any unjustly, the true place for a just man is also in prison. Thoreau: Civil Disobedience (1846)
History will have to record that the greatest tragedy of this period of social transition was not the strident clamor of the bad people, but the appalling silence of the good people. Martin Luther King
If there are no stupid questions, then what kind of questions do stupid people ask? Do they get smart just in time to ask questions? Scott Adams

This message is a reply to:
 Message 342 by Percy, posted 03-08-2016 11:16 AM Percy has replied

Replies to this message:
 Message 347 by Percy, posted 03-08-2016 6:25 PM NoNukes has replied

  
xongsmith
Member
Posts: 2578
From: massachusetts US
Joined: 01-01-2009
Member Rating: 6.8


Message 344 of 466 (779827)
03-08-2016 5:08 PM
Reply to: Message 335 by NoNukes
03-07-2016 2:06 PM


Re: Appeals Hearing: Concerns About Phone
NoNukes writes:
But text messages are easily deleted. A phone might contain evidence of those deletions. The best suggestion of good faith is Brady's claim that he tried to have the phone company produce the messages, but if there was such an attempt, it failed.
THE POINT BEING THAT THERE WAS NOTHING ON THEIR PHONES and they weren't deleted.
A calls B, both have a record. A deletes his, B still has it. When they look at B, there is nothing incriminating there.

- xongsmith, 5.7d

This message is a reply to:
 Message 335 by NoNukes, posted 03-07-2016 2:06 PM NoNukes has not replied

Replies to this message:
 Message 346 by Percy, posted 03-08-2016 5:29 PM xongsmith has not replied

  
xongsmith
Member
Posts: 2578
From: massachusetts US
Joined: 01-01-2009
Member Rating: 6.8


Message 345 of 466 (779829)
03-08-2016 5:13 PM
Reply to: Message 336 by Percy
03-07-2016 3:12 PM


Re: Appeals Hearing: Concerns About Phone
Percy speculates:
The NFL suspended Brady for four games on trumped up charges. When those charges became dubious they added a charge of destruction of his cellphone, something Brady likely wouldn't have done had the NFL not suspended him for four games on trumped up charges.
Not so sure he wouldn't destroy the phone. As you, yourself wrote, the lack of security combined with the risk to his family & children definitely makes it the prudent thing to do.

- xongsmith, 5.7d

This message is a reply to:
 Message 336 by Percy, posted 03-07-2016 3:12 PM Percy has seen this message but not replied

  
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