Deshaun Watson, the Grand Jury System, and why the NFL should let him play football until there is an indictment, a trial verdict, a civil settlement, or he admits he did something wrong
The Deshaun Watson case continues to circulate through the news in and outside of the sports world. Watson, the former Houston, Texan quarterback, is now the assumed starting quarterback for the Cleveland Browns. The Browns, despite twenty-two (22) civil lawsuits against Watson, agreed to pay him a record breaking $230 million guarantee contract. The original twenty-two (22) lawsuits have grown to twenty-six (26) lawsuits, all alleging that Watson contacted massage therapist for their services, and at some point in time, coerced them to engage in inappropriate sexual conduct. The incidents allegedly occurred between March 2020 and March 2021.
Tony Buzbee, who is employed on a contingency fee, is representing all the women against Watson. At this point Watson has declined to settle any of the matters and two Texas Grand Juries declined to indict Watson on criminal charges related to these incidents. The NFL, correctly, hasn’t taken any action against him because, at this point, the only proof that something occurred is the victim’s statements and video interviewed, where Buzbee, who has contingent financial interest, likely prepared them for hours.
What to know about the Grand Jury System – What system does Pennsylvania and New Jersey use in criminal cases?
This case has raised many questions regarding Texas’ Grand Jury system, the burden of proof before a grand jury, and its procedures. Texas, like New Jersey, maintains a grand jury system. The role of a Grand Jury is to listen to the facts of the case and determine if probably cause exists for the charges alleged against the Defendant. Pennsylvania, unlike New Jersey and Texas, doesn’t employ this type of system. Criminal charges in the Commonwealth are initially brought before a District Magistrate or Municipal Court Judge (Philadelphia) to make a similar finding at the preliminary hearing.
What is the grand jury’s procedure and what is the prosecutor’s role before a grand jury?
In Texas, a Grand Jury is composed of twelve (12) persons who must be citizens of the county where the grand jury sits. In addition, grand jurors must satisfy the ability to write, read and have no disqualifying criminal convictions. The Texas grand jury must have at least nine (9) grand jurors to indict a case. Failure to achieve non-votes will result in a “No Bill”, which is what occurred in the Watson case.
During grand jury proceeding, prosecutors are permitted to recite the relevant facts to the grand jury so that they can decide if probable cause exists to indict. Prosecutors however may also present documents with testimony from witnesses, including the accused. Defense lawyers along with Judges are not present in the Grand Jury room. In Texas, only the following are permitted, grand jurors, the Prosecutor, witness, a stenographer, and bailiff.
While the accused may be called as a witness before the grand jury, he or she can invoke his/her right against self-incrimination (5th Amendment). All grand jury proceedings are secret, and Prosecutors are only permitted to share information obtained from a grand jury with another grand jury, law enforcement agency or another Prosecutor when they need their assistance with the case.
Grand jurors are allowed to ask questions of the Prosecutor and can request production of other evidence if they think they need it. Grand juries are not trials and Prosecutors are under no obligation to present any evidence which would be exculpate the accused or in some way prove innocence.
Watson faced two (2) grand juries and neither found that sufficient probable cause existed for the charges against him despite reviewing police reports and hearing testimony from witnesses. Watson, apparently invoked his 5th Amendment right during civil depositions, which occurred on the same day as the first grand jury convened. He allegedly answered questions, however, under oath, after the second grand jury declined to indict him.
Why can’t the NFL make a decision on this case?
At this point, the NFL has not any taken action against Watson despite an alleged detailed investigation. Further, Watson is not on paid leave (Commissioner’s Exempt List) despite the allegations.
The NFL’s personal conduct policy states that players, coaches, and team administration must refrain “from conduct detrimental to the integrity of and public confidence in the NFL”. The policy goes on to say that conduct by anyone in the league that is illegal, violent, dangerous, or irresponsible, damages the reputation of others in the game and undercuts public respect and support for the NFL.
Players convicted of a crime or subject to a disposition of a criminal proceeding (alternative to conviction program) are subject to discipline. Even if conduct however doesn’t result in a criminal conviction, a player found to have engaged in any conduct which undermines the integrity of the NFL is subject to discipline.
Why should the NFL let Deshaun Watson play?
With that said, the NFL is in a very tough position as the grand Juries in Texas failed to find that probable cause existed to indict Watson. The evidence standard at a grand jury is much lower than what Prosecutors would need to convict him at trial. It is very similar to a civil standard and at this point Watson has yet to settle any of the cases against him. He and his attorney, Rusty Hardin, appear ready to take all matters to trial and only reportedly offered settlements to the alleged victims.
While the NFL policy seems clear that Watson’s alleged behavior, if true, violated league policy, there is no evidence other than the victims’ statements. Unlike other NFL players, such as Ray Rice (2014-suspended indefinitely for domestic violence caught on video); Adrian Peterson (2014-six (6) games-reckless assault of a minor); Greg Hardy (2015-four (4) games – assault and terroristic threats); Ezekiel Elliott (six (6) games – no criminal charges).
The Watson case may actually go to trial. There are no admissions from him, no physical evidence, but only alleged victim’s statements. It may be difficult for the NFL to take any action against him. If the NFL were to act, purely based on allegations and police reports, with as far as we know no real corroborating evidence (videos, recording, an indictment, civil verdict), the league is setting an extremely bad precedent! While I have not reviewed the NFL’s personal conduct policy at length, it would seem extremely unfair if a player could be discipline without some type of admission or finding of guilt. This would open the doors to possible player extortion in the future. Alleged victims could make allegation and players would face discipline even if the only proof was their statements and interview for which they were no doubt prepared for by attorneys who have a financial contingency interest.
Despite critics, the NFL should hold off taking any action against Watson until this matter is resolved. Waiting respects the victims and Watson’s rights. Premature punishment could not accurately reflect what actually occurred through an admission or what a judge or jury found occurred,
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