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Big Games and the End of the Hokey Pokey Era Trash Talk

My my, there is a lot going on in the sporting world this weekend, so let’s take a look at some of the more interesting bits and pieces. First off there was some big news in Ann Arbor yesterday that pretty much answers the burning question from last weeks trash talk, namely who will scuttle their flailing football coach sooner, Michigan or Florida? The answer is in, and it is the Michigan Men! Michigan Athletic Director Dave Brandon has resigned effective immediately, and that will almost certainly spell the end of the Brady Hokey era for the Wolverweenies.

There are a couple of updates to items on the Docket Report. First, there was a hearing in EDVA on the appeal lawsuit of the Washington Redskins from the negative trademark decision in the administrative patent court system. The hearing was on a motion to dismiss and the early reports are the court was dubious about the dismissal effort and seemed inclined to retain jurisdiction. If so, that probably favors Dan Snyder and the Skins, because it will allow additional evidence to supplement the narrow and limited administrative record. It will be interesting to see what the decision is here. Secondly, the Ray Rice appeal hearing is set for next Wednesday, and the hearing officer, Judge Barbara Jones, has ordered Roger Goodell to testify. Some people are discussing a settlement, but I would be surprised. This could be fascinating seeing good attorneys cross-examine Goodell.

Then there are the games. The World Series is over, and congratulations to the San Francisco Giants who won a compelling series over the Kansas City Royals. The Cicago Cubs have hired Joe Maddon as their new manager after he quite suddenly up and left the Tampa Bay Rays. That is a great move for the Cubs, but the Cubbies are career killers for managers. RIP Joe Maddon. And the NBA season has started, so there is that. But we are really about football here, so let’s get to it, and there are a lot of big match ups on tap.

You would think that there is no way possible that the biggest game is not Peyton versus Brady and the Broncos at Patriots in the quarterback battle of the ages. Nope, that ain’t it. No, the biggest game this weekend is the Cardinals at Jerryworld to take on the Cowboys. The Cards, along with the aforementioned Broncos, have the best record in the NFL to date with only one loss on the season. The Cowboys were up there too before last week’s close loss to an inspired Redskins squad. This really shapes up as a great game. The Cowboys Demarco Murray has passed Jim Brown with eight straight games over 100 yards to open a season. But the Cards have perhaps the leagues best run defense. The Cowboys can be thrown on, and Carson Palmer has finally got Larry Fitzgerald untracked. Tony Romo is hurting and has not practiced all week. Oh, and by the way, the Honey Badger is back. All the factors point to the Cardinals having the edge. So I am picking the ‘Boys on the basis that they are home, and pissed about their performance against the Skins.

The other big game is of course Broncos at Patriots. Both Brady and Manning are playing lights out currently, and the Pats are on a bit of a roll. Any matchup between these two quarterbacks is an instant classic candidate, and this one is no different. I am going to assume ‘Ole Noodle Arm Manning and Brady cancel each other out. once you get past that, and even understanding Gronk is really rounding into the old Gronk, the Broncos simply have more and better weapons on offense. The Broncos also have a better defense, and they get the pick here. The only other really interesting game on the NFL schedule is Ravens at Steelers. Oddsmakers have it a draw right now, but I think Big Ben and the Stillers have found a groove and pull out the home win at the Big Catsup Bottle.

In college, the unquestioned game of the week is number 3 Auburn at number 4 ‘Ole Miss. After today, one of the teams will be done for the playoff discussion. The Rebels are favored by two at home, and that sounds about right to me. The other really good match ups are in the Pac-12, which has provided every bit as much excitement and compelling football this year as the SEC. Stanford is at Oregon, and the Trees have a history of manhandling the Ducks and giving them fits. Stanford is having an off year, but seemed to find an offensive groove last week. Still, I think the Quackers have the edge. Number 12 Arizona is at number 22 UCLA and I smell an upset here. Lastly, in a night game, number 17 Utah is at number 14 ASU. Utah is always superbly coached by Kyle Willingham and is consistently a better team than people give them credit for. But ASU has some momentum and, as long as they don’t get caught looking forward to next week’s tilt with Notre Dame, should take care of business in Sun Devil Stadium, though I expect a tight game.

Welp, that is it for this week. Rock on. This week’s music by Gerry Mulligan, Dave Brubeck, Doc Severinsen and the Cincinnati Pops with Duke Ellington’s classic “Take the A’Train”.

More Catcalling Debate Room Needed at New York Times

So, the New York Times today has up another in their series called “Room For Debate”. Today’s topic is “catcalling”, and the supposedly relevant question for debate is “Do We Need a Law Against Catcalling?” The ‘debate” is based on the “catcalling video” that has gone somewhat viral the last couple of days. First off, let us stipulate that catcalling is disgusting and reprehensible, and there seems to thankfully be a bipartisan consensus on that. But does the New York Times make it a fair debate when it comes to criminalization of public speech? No, of course not, there are three contributors who specialize in seeking to restrict clear First Amendment speech on this subject against one token policy guy from the ACLU who gives the “whoa, hold on there” position. Hardly a “fair and balanced” fight, but the framing itself makes it crystal clear the Times did not want a fair fight.

Frankly, the fact that the NYT was determined to push the knee jerk attack on free speech side was patently obvious from the fact of their title “Do we Need a Law Against Catcalling” and that is exactly what they put up. Which, considering that the New York Times has led the pantheon of First Amendment law for decades, is a rather astounding and depressing thing. I guess the Times’ love and protection of the First Amendment tails off quickly when their own rear ends and press rights are not on the chopping block. A disturbing position.

This is but the latest example of a growing victim culture trend that is willing to abandon the founding Constitutional principles, and shift inherent burdens of proof, out of emotional angst. There is the attempt to criminalize speech in via so called “revenge porn” laws. There is the astoundingly intellectually backward desire of Ezra Klein to eliminate due process and shift the burden of proof onto the accused – presumed guilt – in state government sponsored punitive proceedings in state universities. And now this.

These are all feel good laws fighting against things that are detestable – revenge porn, non-consensual sex and flat out rape on college campuses, and verbal harassment of women on city streets and in public places. Those are all terrible things that we should all be firmly against, and I am. But just because there are terrible things out there in our world does not mean there is always an appropriate path to eradicate it through ever more broad and vague criminal laws. That is a path our founders took great care to protect against, and one we would do well to keep in mind when emotions try to overcome Constitutional protections.

So, in conclusion, no, we most certainly do NOT need a law against catcalling. Furthermore, in the true spirit of Halloween, I boo and hiss in the general direction of the hypocritical New York Times, who apparently view the First Amendment as protecting them, but not the rest of us non-journalist common citizens.

[Note: It is my belief that this will be one of multiple entries from a group of friends who are either practicing criminal defense attorneys, or heavily involved in the criminal justice system. Our own "More Room For Debate" if you will, because the Times will never seek out actual practicing criminal defense lawyers when talking about, you know, criminal laws. Those in for the debate, or hopefully contemplating it, are: Scott Greenfield from Simple Justice, Gideon from A Public Defender, and Liliana Segura from The Intercept. All of these people, and their blogs, are simply superb, and you should be reading them. When and if they post their entries at their sites, I will update with links here]

The Decline and Fall of the Bo Merlot Empire

There was once upon a time a great band of Wolverine warriors who prowled a region of earth known as The Big Mitten. Proud and fierce, they were led by a god like creature known as Bo. Merlot that is. Three yards and a clod of sod Schembechler. A fine wine was named in honor of the great god Bo. They were hailed as victors far and wide, everywhere they went. Except the Rose Bowl of course, that rarely worked out very well because, you know, PAC teams can actually pass the football.

Anyhoo, enough about ancient history, let us talk about the present. It is bleak. In Ann Arbor, the locals no longer bother with chattering about great wars with the hated Tattooed SweaterVests of Ohio State, for they must spend all their time hiding from their in state Sparty neighbors in green. Green is good, unless you are Blue. You see, the Green Meanie Spartys are 5-1 against the Michigan Men in the last six years, and are looking to get their swerve on yet again today in East Lansing. And Sparty is, frankly, starting to get bored. When asked this week about the looming battle for the coveted “Paul Bunyan Trophy“, pretty much all Michigan State coach Mark Dantonio could muster (apparently while yawning) was:

We have to keep our edge regardless of who we play. If we can’t do that, then we’ve not succeeded.

Michigan-Wolverines-Football-Dave-Brandon_455405196Ooof. Brutal. But, well, what is he supposed to say? The Wolverweenies have not scored a touchdown on Michigan State in the last two years, and last year Michigan rolled up an impressive negative 48 yards rushing for the game. And that was in Ann Arbor, today Sparty is eighth ranked and home cooking. Brady Hoke is right about one thing, this is not Devin Gardner’s problem. The problem at Michigan is far greater than that, it is systemic, and it appears to go all the way up to state Republican apparatchik Dave Brandon, who is the current athletic director. There won’t be a riesling, much less a merlot, named for Dave.

Which leads to the question asked by Marcy, who will fire old and hire new, coaches sooner, Michigan or the Florida Gators? Great question. My guess goes to Florida because I think they are more stable at the athletic director position. Michigan has issues across the board at this point. Jim White can flesh out the Gators’ details further, but things are not good in Gainesville with Will Muschamp either. I kid a lot about both of these programs, but it really is sad. Football is infinitely better when these storied programs are healthy and not woebegone.

Okay, let’s take a brief look at other things sporting in the news. The Royals last night stole a win in San Fancisco to go up 2-1 in the World Series. Ratings for this series are in the dumper, but I cannot fathom why. These are both compelling teams, and the series itself seems great. The Giants are a close to a dynasty as there is in baseball the last decade, and the Royals were once glorious and are finally back on the big stage. That is good stuff, and worth watching.

In the student athlete portion of this weekend’s schedule, apart from the Paul Bunyan fest in East Lansing, ‘Ole Miss at LSU and South Carolina at Auburn could both be surprises and look worth a look. USC at Utah is another upset special in the making. The Trojans are up and down this year, but Cody Kessler is running up impressive quarterback numbers along the way, and Utah can be thrown on. But Utah can score too, and they are always tough as nails in Rice Stadium. I have actually been to Rice Stadium by the way, but it was for a Rolling Stones concert, which was plenty proof the joint can rock. On a more sober note, I hope USC pulls off a big win because the Trojans are the team of my friend Kevin Drum, and life has dealt him a very bad card. Marcy and I have been together at this blogging thing a long time now, but long before that, Kevin became one of the first people in the blogosphere I came to know and interact with off blogs. He is a prince of a man, and I send him all my best wishes, and hope you will too.

Screen Shot 2014-10-25 at 5.55.27 AMIn the professional football sporting side of things there is much ado about something. First off, in the supposedly game of the week, closest pairing evah etc Thursday night tilt between the Donkos and Bolts, ‘ole Noodle Armed Washed Up Lemon Sucking Face Peyton Manning skewered San Diego. Denver better find a way to sign and lock up BOTH Thomases, Julius and Demaryius, because Peyton looks like he easily has another 2-3 years in him. And those three are magic together. Can the Bungles rebound with a win over the Ravens home in Cinci? I wouldn’t bet on that; Flacco and the boys are on a roll. The Bills at Jets might actually be interesting. By the way, no, that is not a photo from Bill & Ted’s Excellent Acid Adventure there on the right, that is the Tennessee Titan’s new starting quarterback, Zach Mettenberger.

The three real games of the week are, however, Green Bay at the Saints and the Eagles at Arizona. Obviously I will be watching the latter, and think it ought to be a hell of an interesting game. The Iggles offense is, on paper, far more potent than that of the Cards. But this will be Carson Palmer’s second week back from his shoulder nerve injury and Larry Fitzgerald has mad a career of going wild on the Philadelphia defense over the years. So, the offenses may be a wash. Right now, the Cards’ defense seems to be the better of the two and, therefore, and I KNOW I will regret this, I think the edge has to go to the Cards at home. Lightening will strike me down for that I am sure.

Okay, that is it for this week’s trash talk, whoop it up people. Music this week by the great Mose Allison. On a melancholy music note, it has just been announced that Jack Bruce, the great bass player for Cream, has passed away. In his honor, here is my favorite Jack Bruce/Cream song ever, SWLABR, which Bruce both wrote and sang. It has always been a little disputed what the title stood for, but I have always bought that it really was “She Was Like A Bearded Rainbow” instead of “She Walks Like A Bearded Rainbow”. Either way, RIP Jack.

Week Seven Pro and College Football Trash Talk

The week got off to a good start as the Patriots outlasted the Jets Thursday night. Barely and, really, the Jets should have won, they played better. Then, yesterday, the Jets traded a conditional draft pick to Seattle for Percy Harvin. Seems like a horrid deal for the Squawks, but apparently Harvin was a locker room cancer. Man, that is a big loss for Seattle talent wise, so they must have really wanted him gone. If the Jets had had him a couple of days earlier, they might well have beaten the Pats. The Seahawks probably won’t miss Harvin too much against the woeful Rams on Sunday, but may later in the year.

The two best games of the weekend are Chiefs at Bolts and 49ers at Broncos. In the former, you have to like San Diego. They finally seem to be getting rid of the Norval Turner syndrome, and Philip Rivers is playing soundly again. The Chefs are capable of blowing out even a good team on any given weekend, but are more than capable of sucking too, especially on the road. The 49ers at Broncos looks like a tossup, but I will take Peyton and the Donks at Mile High against pretty much anybody, and do here. Denver’s receivers are just too good for the so so defensive backfield of San Francisco.

The big game out west is Stanford at ASU here in Tempe. Stanford has pounded the Devils in the last few years, including twice last year (regular season and in Pac-12 championship). ASU is flaky, but they are more than capable of pulling off the win. They now have two quarterbacks as Taylor Kelly is returning from injury, but Mike Bercovicci, who has played well, is expected to get the start. Devils may actually have the better ground game for once too. Still, the odds are Stanford walks out the winner. The Washington Huskies have a great record so far at 5-1, but don’t have nearly enough juice to beat the Oregon Quackers in Eugene. Texas A+M at Alabama has been a fantastic game the last couple of years, and should be again. Both teams have looked out of sorts lately.

The marquee game nationally is, of course, Notre Dame at the Florida State Rapists and Coddlers. Hard to find a team to root for in this matchup. Maybe they could battle to a 0-0 tie, yeah, that would work. The Domers may be undefeated and fifth ranked in the country, but they don’t seem to have the talent or game to compete with the likes of FSU. There is currently a 9.5 point spread on the game in favor of FSU, and that seems about right.

No baseball as the World Series doesn’t start until Tuesday, but how bout them Royals! Formula One is off until November 2nd, when the US Grand Prix in Austin goes off. This week’s music courtesy of Neil Young and Crazyhorse. So, with that, I bid you adieu and chat it up.

Formula One and Football Trash Talk

Last week we opened up with discussion of the stunning announcements of Sebastian Vettel and Fernando Alonso to change teams for 2015. That was a titanic sized announcement the likes of arguably never seen before in F1, certainly not with so many races left on the calendar. All that was lead unto the Japanese Grand Prix at Suzuka, which unfortunately was scheduled at the same time a rather large typhoon was rolling in. The conditions were horrible on track, and in fact the first dozen or so laps were run at a crawl behind the safety car.

And then unspeakable tragedy struck Adrian Sutil went off course in his Sauber and a lap later, young Jules Bianchi went off at the same exact location and his Marussia car went into the side of and under a tractor crane present to remove Sutil’s car. frankly, it is so graphic that I am not going to embed it, but if you want to see it, it is here. It seems almost inconceivable that Bianchi survived, but he has, although his condition is grim and with serious head trauma.

The accident has cast a pall over this weekend’s inaugural Russian Grand Prix in Sochi. Team Marussia will run only a single car for the race, a dedication to a down teammate not seen since Damon Hill of Williams ran solo after the death of Aryton Senna 20 years ago. Bianchi is young, personable and a fantastic up and coming driving talent. Get well Jules.

Baseball is back, and there was yet another extra inning barnburner involving the Kansas City Royals last night, with the Royals pulling out the win – again – on the road in ten innings. Today is game two between the Royals and Orioles, and the start of the NLCS between San Francisco and St. Louis. MLB has been incredible this October.

Hey, who would have thought the road to the college football national championship would run through Starkville and the Mississippi state Bulldogs? But today it does as the second ranked Auburn Tigers come to town to face the third ranked Bulldogs. Mississippi State has beaten LSU and Texas A & M in back to back weeks. Can they beat Auburn too? Tall order, not so sure about that, but should be one heck of a game. The aforementioned Aggies host the ‘Ole Miss Rebels, and may be in danger of losing two in a row after a hot start. Two other games are huge, and in the Pac-12. Oregon at UCLA and USC at Arizona are both big games with huge post season implications.

In the pros, Dallas at Seattle looks like the best matchup of the weekend. Dallas is way better than people thought, and their defense and running game are really coming into their own. But Seattle at home is a tough hill to climb, don’t think the ‘Boys have enough juice for that. Giants at Eagles also could be decent. Giants have looked better last couple of weeks, but I will take Nick Foles over Bad Eli here. Pats at Bills, Steelers at Browns and Skins at Cardinals also may have interest.

What you have to talk about?

MLB Divisional Playoffs and NFL Week 5 Trash Talk

A fairly minimalist week on the sports criminal docket front other than the announcement of former SDNY Judge Barbara S. Jones to hear the Ray Rice appeal against the NFL. She looks like a decent pick.

There is, however, a lot going on in the actual sporting world. Exciting MLB playoffs, and week five of college and pro football. But, by far if you look to the global sporting stage, the biggest news broke late yesterday: Sebastian Vettel is leaving Red Bull for Ferrari, and it seems almost certain that Ferrari’s Fernando Alonso is leaving the Scuderia for his old team, McLaren.

This is simply stunning. Frankly, not sure I have ever seen such a seismic shift with this much time left in the current season. Vettel is certainly younger (by about a decade), and would look to be with Ferrari for the long haul, but Alonso is for now a superior driver. For the next couple of years, not sure the boys from Maranello got the better part of this change. And the Circus is in Suzuka for the Japanese Grand Prix this weekend. Rosberg and Hamilton have the front row locked out after qualifying, and Suzuka is a great course. Worth the watch.

Then there is baseball. We don’t usually do much baseball here, but holy cow has there been some fantastic playoff action in the MLB. Especially any and all of the games involving the Kansas City Royals. First they beat the Oakland A’s in one of the most gripping baseball games you will ever see to make it past the initial knockout 1 game wildcard playoff game – in 12 innings. It was mesmerizing. Then they have followed it with back to back 11 inning wins over the Angels in Anaheim. Just wow. The Cardinals and Dodgers series seems similarly charged, and there are hard feelings between the two teams. And once again, Detroit, with all their talent, is self destructing in October, this time with two 8th inning collapses against the Orioles. Great stuff across the board for baseball.

In college football, I think we have to open with credit due for Rich Rodriquez who took his Arizona Wildcats to Autzen Stadium, knocked off the second ranked Oregon Ducks and walked out 5-0. Maybe Rich Rod wasn’t the problem in Ann Arbor. Sixth ranked Texas A+M at Mississippi State has the biggest buzz about it. Don’t sleep on the Bulldogs at home, they have a superb QB, Dak Prescott, and a tough fast defense. Same thing goes for Alabama at ‘Ole Miss. Big day in Mississippi.Stanford at Notre Dame, LSU at Auburn, and Nebraska at Michigan State all look to be good games. Before being exposed in the nightmare against UCLA the last time they took the field, I would have thought ASU at USC would be a good game. Not so much now, the Trojans will roll them.

Not a great week in the NFL. Man, the Packers just destroyed the Vikings on Thursday Night Football, and the Pack is back to 3-2 and looking better. The big game this week is – go figure – the still unbeaten Cardinals in Mile High against the Broncos. The Cards are a solid team, but won’t be unbeaten after Peyton is done. Could be a really good game though. Both teams are coming off a bye. Chiefs at 49ers and Bengals at New England are the only other really interesting games on the schedule. I will take the home team in both of those, though I am starting to wonder if Bill Bel, Brady and the boys deserve the respect any more. We shall see.

Okay, that is it for this week. Chat it up.

Week Four Trash Talk

Not nearly as much criminal docket news this week, but one thing is notable. The NFL has started its pushback on the AP story of the “law enforcement official” who sent the full elevator video to the league now that AP has supplemented its original report to reflect that the law enforcement official sent the tape addressed to Jeff Miller, the head of the NFL Security Office in New York.

This is a sizable problem for the league. So now the NFL is shopping, through its oh so subservient mouthpiece ESPN, the posture that the tape story is all a lie:

“Our office has found absolutely no evidence to support the claim of the anonymous ‘law enforcement source’ that he sent a video to the NFL office or that he received a telephone call to his ‘disposable cell phone’ from an unidentified female using an NFL line,” the league said.

This is simply pathetic. As if they had not already engaged in enough mendacity and duplicity over their handling of the Rice case, now they are doubling down. Their defense to the tape allegations is it is all a lie. That the AP got hoaxed on their huge story. The AP, who knows exactly the full identity of their source, his law enforcement status, and presumably has confirmed details. The NFL is the truth teller and everyone else, from Ray and Janay Rice, to Ozzie Newsome, to casino security, to the cops, to the venerable AP…they all are lying. Yeah, that’s the ticket. Roger Goodell and the NFL grow exponentially more pathetic with each passing day.

After Thursday night’s debacle here at Sun Devil Stadium, it is hard to talk about football at all. Very ugly. A possible upset special might be Stanford at Washington. Tough conference game and the Huskies are improved under Chris Peterson. The national interest seems to be on FSU and Heisman criminal Winston at NC State. Hard to see the Wolfpack making a game of it, but one can hope. Really not a lot of interesting games this week.

On the beleaguered NFL side, there are a few games worth watching. Starting, of course with the best rivalry in the history of pro football, Packers and Bears. It is at Soldier Field, so I am not sure why the Cheese is a one point favorite. The Pack is playing like crap so far this year, no running game and an unusually ineffective passing attack. I’ll take the Bears here. Can the Lions stay on their early season roll and beat the Jets Jets Jets? Yes, they can. Eagles at Niners is really interesting. Eagles are rolling, and San Fran is reeling. Oh, and Jim Harbaugh really is a giant flaming detestable asshole. So, I will be rooting for the Iggles, plus they are more fun to watch. Patriots have been horrible so far, especially on offense. Still hard to see them not beating the Chefs to go to 3-1 despite how bad they have been. KC is still hung over from the Royals making the playoffs.

On a sad note, this blog has lost another of our old friends dating back to when we started. She has been absent for about two years now, but Skdadl was a great and wonderful presence in our comment threads for a very long time. Now she is gone. The full obituary for Susan Kent Davidson is here, and she had a full life. RIP Susan.

On that melancholy note, I leave you to chat it up.

Criminal Docket Talk

Another week, another series of missteps and embarrassment for the National Felon League. More facts surface showing Adrian Peterson to be a backwards horrible human, the Cardinals’ Jonathan Dwyer is charged with felony assault for head butting his wife and breaking her nose and Roger Goodell held a news conference yesterday where he came off as even a bigger dissembling jackass than he seemed before.

Lost, at least somewhat, in the relentless shuffle of negativity surrounding the NFL were significant developments in the Ray Rice case that set everything off to start with. As an excellent report by ESPN’s Outside The Lines lays out, both the Baltimore Ravens and the NFL knew everything about the Rice incident immediately and colluded to minimize the impact on Rice. From the New York Daily News:

According to the ESPN report, the Ravens’ director of security, Darren Sanders, was made aware of the inside-the-elevator video just hours after Rice clocked his then-fiancée, Janay Palmer, at the now-closed Revel Hotel and Casino in Atlantic City in mid-February. Sanders, according to the report, had reached out to an Atlantic City police officer, who described in detail what transpires in the elevator video. Sanders then conveyed the information to Ravens executives, according to ESPN, although the report does not name which individuals Sanders contacted.

The report describes how Ravens owner Steve Bisciotti, team president Dick Cass and GM Ozzie Newsome worked behind the scenes to try to have their star running back get off with a lenient punishment. According to ESPN, the three men campaigned with prosecutors in Atlantic City — where Rice was charged with assault — as well as with Goodell, since he would mete out punishment for Rice, and with organizational personnel.

The full NYDN article linked above is worth a read, and the long form detailed ESPN OTL article is chock full of further details and a tick tock from the night of the incident through the present day. Literally the only person who seems to have consistently been honest in this mess is Ray Rice. As I said in last week’s Trash Talk, I think he has a pretty good chance in his appeal with the league and the Ravens over his suspension in light of the Article 46 §4 single penalty clause. The Players’ Union formally noticed that appeal last Tuesday, and it is supposed to be heard within ten days.

Hey, it is not just the NFL that is chock full of criminals, the NBA has them too! Rex Chapman, former sharp shooting guard for the Bullets and Suns, and former NBA team executive, just got arrested for shoplifting $14,000 (yes, $14,000!!) of Apple products in Scottsdale. Oh, and career criminal Jameis Winston is in trouble again.

Welp, in addition to all the criminal docket activity, there is purportedly actual football to be played. It seems kind of secondary any more.

The Florida Gators are in Tuscaloosa and look ripe to get rolled by the Tide. I actually think the BYU and Virginia game may be decent. Don’t sleep on the Cougars, they have a good team and a favorable schedule this year. They are capable of going undefeated, but the Cavaliers will be a test. FSU may not have Career Criminal Winton at QB, but they should have enough at home to get past Clemson. Mississippi State could be a tough matchup for LSU.

The big game in the National Felon League is, of course, the rematch of the Super Bowl when Peyton and the Broncs meet the Seasquawks in Seattle. This game will be a lot closer that the SB was; I rate it a toss up, but would not be surprised if Peyton pulls off the win. The surprising Bills host the Chargers in an early game that should be pretty interesting. The Packers are in Detroit. Both teams are 1-1 and need the win. As much as I hate to say it, I think Detroit is the better team right now, and it will show. But Aaron Rodgers is starting to heat up again, so it could go either way. While the rest of the country is watching Peyton versus the Squawks, I will be stuck with Niners at the Cards. Carson Palmer is out again it appears for the Cards, and Drew Stanton will start for a second week in a row. With Palmer, I would like the Cards, but not sure there will be enough offense without him, so I will take the Niners there.

Well, that is enough. Talk some trash amongst yourselves.

Are New Sealed Filings in Barry Bonds Appeal More Dirty Tricks By DOJ? Update: YES!

The handling of the BALCO series of investigations, both by lead investigator Jeff Novitsky and the US Attorneys office, has been relentlessly aggressive and marked by dubious, at best, tactics. Considering that the DOJ, during the entire time period, could not find the resources to prosecute the banksters who brought down the entire economy, BALCO was one of the most hideous wastes of taxpayer money imaginable.

Remarkably, the questionable tactics by DOJ may well be raising their ugly head yet again. Bonds’ appeal in the 9th Circuit is a somewhat mundane legal issue that has been fully briefed on the en banc petition for the better part of a year. The en banc hearing, before KOZINSKI, Chief Judge; and REINHARDT, O’SCANNLAIN, GRABER, WARDLAW, W. FLETCHER, RAWLINSON, CALLAHAN, N.R. SMITH, NGUYEN and FRIEDLAND, Circuit Judges is set for 2:00 pm tomorrow, Thursday September 18, 2014

Yet, less than 48 hours before the en banc rehearing is scheduled to commence, the DOJ has suddenly, and mysteriously, lodged sealed filings at 8:00 pm last night. These are Docket Numbers 64 and 65 respectively:

Filed UNDER SEAL Appellee USA motion to file a letter to the court under seal (PANEL). Deficiencies: None. Served on 09/16/2014. [9242886] (JFF)

Filed UNDER SEAL Appellee USA letter dated 09/16/2014 re: constructive amendment argument. (PANEL) Paper filing deficiency: None. [9242910] (JFF)

Here is Bonds’ Petition for Rehearing En Banc. Here is the previous panel decision in the 9th Circuit. If you don’t want to bother with the full pleadings, this article from the Orange County Breeze gives a nice synopsis of the scope of the en banc proceeding for Bonds.

As can quickly be discerned, the appeal centers really on common statutory interpretation as applied to the facts in the public trial record. The issue is whether there was sufficient evidence to convict Bonds because his statement describing his life as a celebrity child — in response to a question asking whether his trainer ever gave him any self-injectable substrances — was evasive, misleading, and capable of influencing the grand jury to minimize the trainer’s role in the distribution of performance enhancing drugs, and whether, under the law, that can properly constitute obstruction. I wrote an extensive piece arguing the weakness and infirmities of the verdict at the time it was handed down by the jury. Which is when the jury also acquitted Bonds of all the substantive underlying perjury counts.

Yes, the appeal is really that simple. So why, pray tell, does the DOJ need to be interjecting last minute sealed documents? What possible need could there be for anything to be sealed for this mundane criminal appeal? There may be a valid explanation, but it is nearly impossible to fathom what it could be.

I am willing to bet Bonds’ attorneys, Allen Ruby and Dennis Riordan, must be apoplectic.

UPDATE: Well well, I am sitting in Alice Cooperstown having lunch, waiting for my preliminary hearing to reconvene, and Josh Gerstein just sent me the answer to the question of this post. YES! Indeed the sealed filings are a slimy last minute trick pulled by the DOJ. DOJ was trying to insert grand jury testimony from the aforementioned government BALCO investigator, Jeff Novitsky, into the appeal when it has never, at any point of the proceedings, whether in the trial court or 9th Circuit, been part of the record or indictment.

Here is the responsive pleading just filed by Bonds’ attorney Dennis Riordan. Here is the pertinent part:

The grand jury transcripts referred to in the government’s motion and letter are not part of the record on appeal. Had they been before the district court in any form, the proper method of adding them to the appellate record would have been by means of a timely motion to correct or modify the record under Rule 10(e) of the Federal Rules of Appellate Procedure. The transcripts which are the subject of the government’s motion, however, were never placed before the district court in either pretrial, trial, or post-trial proceedings. Notably, the declaration of AUSA Merry Jean Chan which accompanies the government’s motion makes no claim that the transcripts were filed with the district court. “Papers not filed with the district court or admitted into evidence by that court are not part of the clerk’s record and cannot be part of the record on appeal.” Kirshner v. Uniden Corp. of Am., 842 F.2d 1074, 1077 (9th Cir. 1988) (citing, inter alia, United States v. Walker, 601 F.2d 1051, 1054–55 (9th Cir.1979)).

Should the Court nonetheless wish to consider the transcripts in question, they fully support Mr. Bonds’s argument that the district court constructively amended the indictment by instructing on “Statement C” as a basis for conviction on the Count Five obstruction count, although that statement was not contained in the indictment. In his testimony, in discussing Statement C, then labeled “Statement F” before the grand jury, Novitsky admitted that Mr. Bonds had responded to the pending question—“Did Greg ever give you anything that required a syringe to inject yourself with?”—with a “denial” before veering off into a digression about “being a celebrity child.” (RT of February 3, 2011, at 110.) Novitsky’s admission that the prosecutor’s question was in fact answered by Mr. Bonds constituted a good reason why the grand jury would not have relied on Statement C in indicting on the obstruction charge. The only manner of accurately ascertaining whether a grand jury relied on an act in indicting is by the inclusion of that act in the indictment itself. Here, Statement C was expressly excised from the indictment by the use of asterisks. See Appellant Bonds’s Petition for Rehearing En Banc, at 16.

Hilarious. DOJ tries a patently inappropriate punk move and Dennis Riordan turns it around to bite them in the butt. Quite well deserved. You have to hand it to the DOJ in the BALCO cases, they are nothing if not consistently ethically dubious.

The National Felon League: Week 2 Trash Talk

Welp. Not a particularly banner week for the National Football League. In fact, I am not sure I have ever seen a league, any league, take quite the self inflicted beating that Goodell and the NFL have this week.

The Ray Rice affair was already quite the ugly black eye before all hell broke loose, and appropriately so, with the release of the TMZ tape clip from inside the elevator at the Revel Casino in New Jersey. Marcy already covered the tape and some of its implications. I don’t have a ton to add here, but I do have a couple of things to say. First, the NFL and Goodell are just flat lying through their teeth about the video. I have dealt with pro security offices before, including one in the NFL. They are almost always run by either ex-FBI or ex-state police. Experienced people that know what they are doing and are very connected to police and other local authorities (say, for instance prosecutors). If the Ravens and NFL security wanted the video, they would have the video, whether from the Atlantic City Police or from the Revel Casino itself. The thought they couldn’t get it is absurd. And that is irrespective of the law enforcement member that says he gave it to the NFL.

Secondly, a lot of people are shocked and outraged that Rice was give a diversion plea. Frankly, I am not all that shocked; diversion is not at all uncommon where there are no serious physical injuries, no prior convictions and the victim uncooperative as to prosecution and requests that diversion be given. That is certainly the case here, and from talking to a couple of experienced attorneys in New Jersey, it is not at all unheard of there. Here is the actual prosecutor’s reasoning for doing so. Here is a TMZ report citing anonymous junior prosecutors in the Atlantic County DA’s office saying it is very rare and expressing outrage. Frankly, in Arizona, I think the Rice case would be filed as a misdemeanor to start with and while diversion would be discretionary, it would not be uncommon. Time, and their own conduct, will tell if diversion was the right Continue reading

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bmaz @ScottGreenfield @lawfareblog @OrinKerr @granick You saw my opening salvo I presume.
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bmaz @ScottGreenfield @lawfareblog @OrinKerr @granick Ah, top of the morning to you Mr. Greenfield.
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bmaz @LegallyErin Bundle up baybee!
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bmaz @LegallyErin Say, my tee-bee says you have some kind weather thing going on there.
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bmaz @walterwkatz @gideonstrumpet @ScottGreenfield @LilianaSegura @roomfordebate Yes, that was a nice little touch, no? Jeebus.
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bmaz RT @LegallyErin: There's something very sexy about Anthony Hopkins as Hannibal. I always date the worst guys.
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