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September|October 2003
Mock Trial's Big Dance By Brian Montopoli
Pete Rose's Mock Trial By Joshua David Mann
Sue Yourself By Dashka Slater
To Be Continued By Sam Goodstein
No Boundaries By Tyler Maroney
The Prudent Jurist By Susan Koniak
Cases & Controversies

Pete Rose's Mock Trial

By Joshua David Mann

CLASSES HAD LONG SINCE ADJOURNED FOR THE SUMMER, but on a recent Thursday afternoon, a chalkboard in Harvard Law School's Austin Hall sported a newly written question: "Pete Rose ---> hall of fame?" Rose's banishment from baseball and its Hall of Fame were to be the centerpiece that evening of a mock trial, sponsored by ESPN, to be argued by former O. J. Simpson dream teammates Johnnie Cochran Jr. and Alan Dershowitz. At Harvard, Cochran would be the defense attorney, representing Rose and the case that he should be eligible for the Hall of Fame, while Dershowitz was to play the unfamiliar role of prosecutor, arguing that because Rose bet on baseball he should be permanently ineligible to join the sport's immortals in Cooperstown.

The trial was to air "live" at 7 p.m., but there were two taping sessions: one in the afternoon, which featured the trial itself, and another later in the evening, which featured the verdict. Only the second session was broadcast live. The audience began gathering in the main foyer of Austin Hall around 1:15. A table loaded with brownies, lemon squares, and chocolate chip cookies greeted those who walked through the front doors, and because many working people appeared to be forsaking their lunch hour to attend, the table was getting a lot of attention. By 1:30, a sign had been placed on the table that read: "For Crew Only."

Audience members had come for various reasons. Many were law students like Peninna Oren, who attends Brooklyn Law School. Asked her opinion of Pete Rose, Oren said, "I don't really have one, which is strange because I usually have an opinion about everything." Lou Salamone brought along his girlfriend Nicole and his mom Joan. Lou and Nicole came for their interest in baseball, but Joan said, "I was a big fan of the O.J. trial. I wanted to see Johnnie Cochran in action." Gerri Corrado said she was an avowed sports fan and a fan of the law. A former attorney, she found out about the trial through an e-mail from Boston sports radio station WEEI. "I prefer Dershowitz to Cochran," she stated, the same way you might say that you prefer Garciaparra to Jeter.

At around 1:50 p.m., the audience was admitted to Austin Hall's Ames Moot Courtroom, which seemed both too wide and too short to be a television courtroom. Instead of doors in the back of the room that would allow witnesses to make a dramatic entrance, there was a large fireplace. Witnesses had to enter through the front of the room and then make a roundabout journey to the back during commercial breaks. The witnesses would begin their trot as the commercial break ended, giving the impression that they had somehow emerged from the dark of the hearth.

Just after 2 o'clock, a production assistant made his way to the clock hanging on the wall near the jury room and set it ahead to 7 p.m. ESPN anchor Bob Ley began the proceedings by giving a concise explanation of Pete Rose's career—his 4,256 hits are the most in major league history—and the scandal underlying the trial. In 1988, while Rose was managing the Cincinnati Reds, Major League Baseball launched an investigation into Rose's alleged gambling. A year later, the investigation led then-Commissioner Bart Giamatti to offer Rose an agreement whereby he would neither admit nor deny that he had bet on baseball but would be placed on baseball's permanently ineligible list, barring him from coaching, managing, or otherwise playing a role in the game. Eight days after the agreement was signed, Giamatti died of a heart attack. A few months later, Giamatti's successor, Fay Vincent, changed the eligibility rules for the baseball Hall of Fame to exclude anyone on the ineligible list from consideration for induction.

When Ley finished his précis, the bailiff called the court to session. The bailiff was dressed in dark navy blue, his only marks of authority a silver badge pinned above his left breast and a pair of handcuffs, both of which looked like they could have been purchased at a five-and-dime.

CATHERINE CRIER, THE FORMER COURT TV ANCHOR who recently published a book called The Case Against Lawyers, was the presiding judge, and her to-the-point manner and hostile reputation promised a well-run show. But as a long line of witnesses who were at best tangential to the case took the stand, the trial seemed to lag. Baseball players, psychology professors, gambling experts, journalists, and statisticians were paraded before the jury, which had been handpicked by the producers a week before. The voir dire had consisted of a 10-minute interview in front of a camera, and had yielded 12 capable if not necessarily unbiased jurors, including a teacher, a CEO, and a police officer. The jury had eight women and four men; Eddie Andelman, a sports radio host on Boston's WWZN, was the foreman.

Rather than make the case for or against Rose, the combined testimony of all the witnesses begged another question: Where were all the people actually pertinent to the case? Bart Giamatti could not be called, of course, but where was Fay Vincent? Where was John Dowd, the former Justice Department attorney who wrote the report that convinced many people that Rose gambled on baseball? Where was Rose himself?

In lieu of them, the prosecution offered witnesses like Jim Palmer and Steve Garvey, ballplayer contemporaries of Rose's who gave anemic character assessments: They did not know for certain whether Rose bet on baseball, but if he did, they said, he ought to be banned from baseball for life since it was a cardinal sin in baseball to gamble on the sport. Even Arnie Wexler, the defense's gambling addiction expert, failed to deliver convincing testimony, though he didn't seem to realize it. As he left the stand, he handed his business card to Judge Crier.

Cochran's baseball-player witnesses—Hank Aaron and Dave Parker—were no more convincing than the prosecution's, and it quickly became apparent that the case was going to be a pitcher's duel. The liveliest part of the trial came when Dershowitz cross-examined defense witness Bill James, the baseball statistician who invented a new way of evaluating baseball players through statistical analysis called sabermetrics. James has a lot of opinions and even more conjectures about the Rose case, and he has outlined a not-too-unbelievable conspiracy theory that imagines Vincent scheming to oust Rose from baseball by any means necessary. Dershowitz used James's past statements in his writings to try to catch James in a web of contradictions. Dershowitz became loud and aggressive as he fired questions at James, who maintained the slightly awkward air of someone who has been alone for a long time in a poorly lit basement thinking about the virtues of on-base percentage. Perhaps this was Dershowitz's rapacious way of reclaiming some of the spotlight from James, who had recently become prominent in his role as the Red Sox's senior baseball operations advisor and as a subject of Michael Lewis's popular book Moneyball.

By a unanimous verdict, former Red Sox pitcher Bill "Spaceman" Lee was the MVP of the trial. (After the taping, Roland Savage, Dershowitz's co-counsel, was overheard saying, "Bill Lee was the best 10 minutes of that show.") He came in wearing sandals and a casual red button-down shirt. As he prepared to make his way down the aisle to the witness stand, Lee inspected the workings of the fireplace, looking appreciatively at the craftsmanship. During the lull before the commercial break ended, one audience member jumped up from his seat and ran a baseball back to Lee for him to sign, a tribute no one had paid to any of the other players who testified.

Lee earned the largest audience reaction when he described to uproarious laughter and considerable applause his Little Red Sox Book: A Revisionist Red Sox History, in which the Red Sox win and the Yankees lose every year. But Lee offered more than just comic relief; he was also the most convincing character witness of the day. Despite a strong distaste for Rose himself, Lee stated that Rose's impressive records spoke for themselves and that he deserved a plaque in Cooperstown. Lee held up well against Dershowitz's cross-examination. "So he also influenced betting and provided in effect inside information to gamblers?" Dershowitz asked. "Probably did," said Lee. "Pretty serious offense, isn't it?" "Not really," said Lee.

When all was said and done, the jury, by an 8-4 majority, returned a verdict commensurate with what the public opinion has been saying for many years now: Pete Rose very likely bet on baseball, but he has paid for his crime in the purgatory of exile from the sport and from the country's good graces, and he should now be admitted to the Hall of Fame. After the verdict was handed down, Dershowitz asked the judge for permission to poll the jury for "appellate purposes" to see how many of the jurors thought that Rose bet on baseball. Eleven of the 12 jurors were convinced that Pete Rose was guilty.

At the end of the taping, while the cameramen and crews packed up their equipment, audience members milled around Cochran and Dershowitz, getting photographs taken with them and asking for their autographs. The verdict and Pete Rose were seemingly already forgotten, but a few questions remained: Had ESPN made an earnest attempt to broaden the horizons of sports programming? Probably did. Is the verdict likely to convince baseball commissioner Bud Selig to allow Pete Rose into the Hall of Fame? Not really.

Joshua David Mann last wrote for Legal Affairs about band names.

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