Legal experts praise DA in Georgia
Saturday, April 17, 2010
By Michael A. Fuoco, Pittsburgh Post-Gazette
The decision by Georgia district attorney Fredric D. Bright not to file rape charges against Steelers quarterback Ben Roethlisberger is receiving plaudits from legal scholars who agree he did not have a case that warranted prosecution.
"I think the sentiment is that Bright did a thoughtful job reviewing what he had in front of him and came out with a very sensible decision," said longtime University of Georgia law professor Ronald L. Carlson.
"I think the guy made a very reasoned and correct decision. That was my first reaction and that remains my reaction."
Al Lindsay, a defense attorney and law professor at the University of Pittsburgh, agreed: "There was no other decision to make, in my mind.
"I was quite impressed when [Mr. Bright] made his statement," said Mr. Lindsay, who read the case file that was published on the Post-Gazette's website. "Looking at this file, I think the decision was correct based on the evidence."
Still, retired Pittsburgh police Cmdr. Ronald Freeman, who headed the major crimes unit, said that had he been in charge of the investigation, he would have filed charges against Mr. Roethlisberger.
"I was shocked they didn't file charges. I listened to the entire press conference, and just based on that I felt he should have filed charges," said Mr. Freeman, who said most of what he knew of the evidence came from Mr. Bright's news conference Monday.
But Mr. Lindsay, a former federal and state prosecutor, said it was his conclusion Mr. Bright "would have been way out of bounds to prosecute."
He noted that to win a rape case, Mr. Bright would have had to prove both that Mr. Roethlisberger had sexual relations with the accuser and that the sex was by force. The reason not to seek prosecution, he said, "is he's stuck with [the accuser's] statements" that were at first unclear, because of her intoxication, about whether she had been raped.
"You have to have her testimony, and it would have been very marginal. Because of her extreme intoxication she could not recall [initially]. She wouldn't have been a good witness, and what is significant is she's the only witness [to what may have occurred]."
Mr. Carlson said a defense attorney "would have had a field day" with the accuser on the witness stand because of her level of intoxication and the varying statements she made.
But Mr. Freeman, a professor at Duquesne University, said oftentimes victims of rape are intoxicated because being in that condition makes them vulnerable to sexual assault.
"It's understood there's a history of people taking advantage of women who are intoxicated. It's a pattern people use to their advantage," said Mr. Freeman.
He added that even if it is believed she would have had trouble on the witness stand, that shouldn't deter charges because police arrest suspects in child molestation cases even though children often make bad witnesses at trial.
"I think it should have been up to a judge or jury to decide," he said.
Mr. Lindsay said other factors that may have affected Mr. Bright's decision were the lack of usable DNA to prove at least there was sexual contact between Mr. Roethlisberger and the woman, and the letter from the accuser's attorney saying she and her family did not want to prosecute. Also, he said, her credibility as a witness may have been hampered because at the nightclub she wore a provocative name tag and used a fake ID.
Mr. Carlson said he suspected the lack of DNA figured significantly in Mr. Bright's decision because of what is known as the "CSI effect," named for the procedural television show. That is the phenomena that causes juries to believe a suspect is innocent if there is no forensic evidence presented against him.
"The breakdown of the DNA seemed to me, as I watched his press conference, to be a decisive point, as well it might have been," Mr. Carlson said. "We're finding that criminal juries consider DNA to be the gold standard. We know from research and experience over that last decade more and more juries want to make sure there is DNA before they convict someone."
As for whether the case might have been prosecuted in Pennsylvania, "it would have depended upon the county in which it occurred." That's because, Mr. Lindsay explained, the district attorneys in the state vary widely in their approaches.
"Some of them, such as the good ones like in Armstrong County, have a very strong tradition of only prosecuting cases worthy of prosecution. They are concerned with justice," he said.
"Other counties that will go unnamed, if they had gotten this case would have gotten a lot of publicity and would have let the jury decide and would have brought the tremendous resources of the commonwealth against [Mr. Roethlisberger]."
But, he said, that wouldn't have been justice.
In fact, Mr. Lindsay said Mr. Bright had done the legal profession proud with his actions.
"I love lawyers who do what they are supposed to do. I think it's an honorable profession. When I listened to Bright talk with his measured speech, I thought 'This guy is the real deal.' "