On Baseball, Due Process, and Ryan Braun

As part of Crusty Old Dean's efforts to show his non-ecclesial side this Lent:

One of Crusty Old Dean's other loves in this world, along with good music and a good Islay, is baseball. He has been perplexed by the recent folderol surrounding the positive drug test by Ryan Braun, who won the MVP award in the National League last year.

The facts: Braun was randomly drug tested on the Saturday of the Brewers' first playoff game, October 1. He signed that his drug test had been properly taken and properly sealed. However, the drug tester could not find a FedEx open on a Saturday afternoon that late, so stored the sample in his refrigerator and didn't FedEx it until Monday morning, October 3.

Braun appealed, claiming that major league baseball (MLB) did not follow its own protocols -- that is, drug tests must be FedEx'd the day they are taken -- and that the sample could have been compromised in an unsecure location next to the drug tester's relish. Braun was facing a 50-game suspension and, probably more damning, being shown to be an idiot for still taking performance-enhancing drugs in a sport which does random testing with draconian penalties for first-time offenders.

Braun won his appeal by a 2-1 vote by the arbitration panel. Instead of wanting to get back to playing baseball, however, Braun has gone on the offensive. He has proclaimed that "truth is on his side" and lambasting MLB's drug testing process. He has garnered the support of Packers QB Aaron Rodgers, who tweeted that MLB had tried to "sully the reputation of an innocent man."

Crusty Old Dean is no lawyer, but Braun seems to be confusing several issues here.

One is the difference between due process violation and a determination of guilt. His appeal was granted not because the arbitrators believed his claims he didn't do performance enhancing drugs, but because, technically, MLB didn't follow its own procedures. This is something mystifying, wonderful, and maddening about America: that we would rather let a few possibly guilty people off rather than compromise long-established precedent for due process and people's rights to be protected from illegal searches. This can be embarrassing, like when, in the words of Alan Dershowitz, the LAPD decided to frame a guilty man and OJ got off in 1994. It can be maddening, with Caylee Anthony dead and no one held accountable. It can be mystifying to the rest of the world which does not have these principles as enshrined and more evidence can be admitted. But this is America, and we have these protections. Braun could have said, "God bless America, were our rights are protected." But he didn't. He is claiming his appeal on a technicality as an opportunity to pronounce his innocence.

And herein seems to be a second confusion Braun is making: the difference between "non guilty" and "innocent." Again, COD is no lawyer, but did serve as a foreperson of a jury, and had a judge more or less explain the difference between the two as part of jury instructions. (At first COD was baffled the judge would make a 24-year-old seminary student serving on his first jury the foreperson. Until COD was in the jury room and most of his fellow jurors ended up talking about the tie the district attorney was wearing. COD realized the judge knew COD was the only one who could probably pay attention and understand the instructions.) "Not guilty" means we can't say that you did it beyond a reasonable doubt. We may still think you probably did it, but that doesn't matter, because the onus is on the prosecution to prove it beyond all doubt. Don't confuse finding someone guilty or not guilty with thinking the person is innocent and didn't do it at all. Braun seems to be trying to proclaim himself "innocent" based on 2 out of 3 arbitrators ruling on a procedural technicality.

Though, in the end, it perhaps make sense for Braun to do all of this, because of the fact he won the MVP award in the same season. The court of public opinion has come down hard on performance-enhancing drug users. Tony LaRussa hired Mark McGwire as his batting coach to try to rehabilitate the slugger's image, figuring if he hung around sportswriters enough maybe he would begin to pick up more support in his abysmal Hall of Fame voting. Hasn't worked, he only gets about 25% of the votes for the Hall of Fame when he needs 75% of all votes cast. Next year, when Roger Clemens and Barry Bonds, two more performance-enhancing drug users who have likewise tried to spin every court ruling into an affirmation of their innocence, will likewise go over like lead balloons in HOF voting since everyone knows they used performance. The other option is to admit it and move on, like Alex Rodriguez, but otherwise Braun would know his MVP award would be tainted.

Still unsure if this is a sad reminder that the use of performance-enhancing drugs is widespread or proof that some people are still pretty stupid. Braun's performance on and off the field may help determine which of those is relevant in his case.