Deflategate or Framegate: Let’s Debate

Full disclosure: I am an unabashed New England Patriots Fan, and have been nearly since the Team's inception (give or take a few years of brain development). If you detect a certain bias because of that, and/or choose to read no further, so be it. The choice is yours, just as much as the choice is mine to "weigh in" (no pun intended) on yesterday's Wells Report findings on "Deflategate."

First, as disappointed as I was by the substance of those findings (especially in light of the forceful and emphatic denials more than three months ago by Patriots' Owner Robert Kraft, legendary Head Coach Bill Belichick, and iconic quarterback Tom Brady), I do not fault Senior Investigator/Litigator Ted Well's "more probable than not" conclusion regarding what he says was a "deliberate effort [by two Patriots employees] to circumvent the rules." True, "more probable than not" is not definitive proof. However, it is important to recall this was not a criminal investigation; it was a civil investigation where the standard (adopted under league rules) is, exactly as he announced, a preponderance of the evidence, i.e., "more probable than not." Moreover, it is also important to remember that even had this been a criminal investigation, the standard to charge (i.e., accuse someone of wrongdoing) is mere "probable cause," which is a lot closer to, if not quite akin to "more probable than not," but certainly nowhere near the "proof beyond reasonable doubt" standard required for a criminal conviction.

As far as the finding that Tom Brady "was at least generally aware of the inappropriate activities" is concerned, call me a "total homer," but I'd say he'd have fairly solid ground to challenge any discipline levied against him on that basis (although I do agree that sanctions might alternately, or collectively, be imposed based on his failing to cooperate, as well). Moreover, while it's difficult to place any positive "spin" on the text messages between the two Patriots employees (McNally and Jastremski), the fact is those "smoking gun" messages only make third party reference to Brady. They do not include him. Even a first year Evidence Law student can spot rank hearsay (i.e., an out of court statement offered for the "truth of the matter asserted"), and as a seasoned criminal defense attorney, I'd have a field day defending charge(s) based on that. (Interestingly, the texts would likely come into evidence under the established hearsay exception regarding co-conspirator statements in furtherance of the charged conspiracy, which is why prosecutors, especially on the federal side, love conspiracies and often invoke the squishy concept of "unindicted co-conspirators" to introduce statements that they know would otherwise be barred—but I digress!)

I agree, though, that none of this makes Brady look good. Because of this, and in view of my blatant bias, I thought I'd offer my "Defense Attorney" take on all of this, because, frankly, that's what I do. To me, when it comes to Tom Brady and him being "at the least generally aware," my argument would be, yes, the texts convincingly suggest McNally and Jastremski manipulated air pressure in footballs. However, as to Brady’s culpability, my contention would be that the texts also show: 1.) the Patriots often received overinflated footballs from the NFL; 2.) Brady didn't like overinflated footballs; 3.) Brady (probably) was not only exacting, but also not overly pleasant to deal with—consistent with glimpses of his angry sideline demeanor we saw from time to time during this past Championship Season—when he received overinflated footballs; 4.) McNally resented Brady's exactitude and (possible) anger; and 5.) McNally, whether joking or not, threatened to return footballs to Brady that were even more inflated. Once I'd established that, I would show, as appears to be the case, that Brady liked his game balls precisely at the league minimum of 12.5 PSI, and being a clear Type A person, anytime he received them from either employee a fraction above, he was not afraid to express his strong displeasure. With this as my predicate, I would then address those supposedly damning after-the-fact communications between Brady and Jastremski as being nothing more than the off-the-field nice-guy QB apologizing for snapping about balls coming back to him overinflated, right before kick-off with the Colts; losing his head and his cool in the heat of the pregame moment, and leave it at that as far as Tom Brady is concerned. This way, whether or not McNally or Jastremski misinterpreted Brady's expressed wishes or screwed up by going too far, given the inexactitude of the process - (plus factoring in outside variables like time-pressure to get it done; and weather conditions) - it's "on them."

So why doesn't QB12 come out and say all this now? Well, that's where my defense attorney instincts also come into play. Normally, my advice to criminal clients is to say nothing, force the prosecution to prove their accusation(s) beyond a reasonable doubt, and don't make their job any easier by saying things that my ultimately come back to hurt/haunt you. Here, though, given the matter is civil and not criminal, my specific advice to Tom (were I his attorney) would be, "Don't say anything public about this now." Instead, I'd advise him to save it for his private meeting with NFL Commissioner Goodell and his designated disciplinarian, Troy Vincent, and explain it all to them. Regarding that meeting, my further advice to Brady if I were him would be: "I" would be both conciliatory and apologetic, and agree that "my" instructions should have been clearer and "my" anger could have been misinterpreted. "I" might even go as far as saying how "I" could see how they (McNally and Jastremki) might possibly have misunderstood what "I" was saying—and if it could plausibly be added, “I” would say "I" only knew the former as "Bird," which is why "I" initially denied knowing "McNally." In short, I would be telling Brady to be contrite and accepting of any sanction, while at the same time, subtly emphasizing through his demeanor and sincerity his status as the poster-boy for, and face of the NFL; and then hope for the best, which in this case would be only a hefty fine.

If you are a Patriots fan, what I've said may all look good on paper. It might even all sound good to a jury were I defending criminal accusations. In a perfect world, that would be the end of things. However, those of us in Patriot Nation know all too well the only "jury" that's going to count is in the court of public opinion. Outside of the six New England states, I'm afraid there will be no contest there.