The BP Broadside: Say It Ain’t So, Braun!

We have yet to hear much more about the rationale behind the Ryan Braun decision except rumors about irregularities in the handling of his urine sample, but if it is indeed the case that he was let off the hook because the chain of evidence was broken, his acquittal is a triumph for due process. Sorry, Baseball, but your minions screwed up, and therefore you did as well.

Our Constitution is an amazing living document that stretches and evolves with the times, surviving generations of politicians and Supreme Court justices who life to play taffy pull with its brittle old pages. As a result, sometimes we get a Constitution that’s very expansive in its grant of rights and at other times it’s a bit stingy. For a long time, due process was more about corporations than individuals—the Supreme Court spent decades saying you couldn’t have labor laws because they inhibited the free market, and any law that does that is messing with the right of due process.

The 1919 Black Sox had their case fall squarely during the period of time when due process was more concerned with protecting employers from labor than vice-versa. Had the case happened roughly 20 years later, Joe Jackson and friends might have kept on playing. In some cases (Jackson, Buck Weaver) that might have been a better outcome than what actually happened, whereas in others (Chick Gandil), the result would have been the continuance on the field of some players who were clearly guilty. Still, to the extent that “the verdict of juries,” as Commissioner Landis put it, is one of the keystone of our rights, the Sox clearly got a raw deal.

I’m not going to recapitulate the whole history of the Black Sox; it’s dangerous to assume much of anything in life, but in this case I feel comfortable guessing that most BP readers are conversant with the basic elements of the story: pennant-winning but underpaid stars of the 1919 White Sox conspired with gamblers to throw the World Series to the Cincinnati Reds. The conspiracy was not very well contained, a grand jury investigation was lost, signed confessions were obtained from Jackson and Eddie Cicotte, and eight players were ultimately indicted. The confessions disappeared, as did immunity waivers and some of the grand jury testimony. The players were acquitted, and the next day the players were banned for life by Judge Landis, who didn’t care what the jury had said.

In a lesser-known coda to the case, Jackson sued the White Sox for his salary in 1924. He had been working under a three-year contract when he had been banished, and although Landis and the owners considered him guilty, the law had deemed him innocent. As Jackson was testifying in the case, Charles Comiskey’s lawyers suddenly were quoting from transcripts of the grand jury testimony, testimony which should have been sealed, the confessions, and other materials that had vanished five years before. Comiskey’s attorneys could not explain how they obtained the materials. Jackson’s lawyers were not allowed to see the materials. The jury was allowed to consider the grand jury material, could consider that Jackson had been indicted by said grand jury, but could not consider that he was acquitted.

In a small miracle, the jury found that Jackson had not conspired to throw the World Series and was entitled to all monies owed him—at which point the judge in the case set aside the verdict and threw Jackson in jail for perjury. The grand jury transcripts were never seen again. The evidence against Jackson is still equivocal at best, with a lot of vague stuff about envelopes with cash being dropped in his room but never put in his hands, as well as his .375 batting average in the eight games of the Series.

It is not my intention to whitewash the Black Sox here, given that most were clearly guilty, particularly the ringleader, Gandil, who later implicated himself in other crimes in open hearings before Judge Landis (Chick Gandil: not Albert Einstein). Rather, I am merely observing the standards of different times. Due to the right of collective bargaining, which was not secured by law until the New Deal, players today have rights versus their employers that didn’t exist in Shoeless Joe’s day. He could be banned from baseball without clear evidence that he had participated in the fix, and his recourse to the courts for justice badly backfired.

If Ryan Braun had been in Shoeless Joe’s place, he would have just been suspended for 50 games, or perhaps received an even harsher punishment given the owners’ ability to ban players altogether through the “gentlemen’s agreement” that let them waive players out of the majors for important disciplinary reasons such as not liking their salaries. That may be more your thing. Maybe you’d rather 100 innocent men be found guilty than one guilty man go free. Maybe the whole PEDs thing, with its ambiguous impact on baseball, means that much to you. I’m not saying that position is right or wrong, but amorphous outcomes such as Braun’s (at least, it’s amorphous to this point) are the inevitable outcome of a system in which one truly must be proven guilty before being subjected to a punishment.

Lives are ruined and even ended on tainted evidence and testimony. Look at how many convicted criminals have been exonerated through DNA evidence in the last decade. If Braun is truly a cheat, he will slip up again. If not, he doesn’t deserve to have his career tarnished because someone took his urine home and stuck it in the fridge between the Hellman’s and the Velveeta. I’ve always suspected that contact with Velveeta could taint anything and should be an indictable crime in and of itself.

Again, until we have all the information before us, we can’t know exactly what went down here. Until we do, I think it best if we stifle those cries of, “Say it ain’t so, Braun!” He not only had the right to this appeal and the verdict that he received, but our acceptance of it as well. It’s not only the American way, but a better justice than many before him have received, and therefore a better America as well.