With the release of the Mitchell Report, I’ve been thinking alot about the concept of ‘innocent until proven guilty’ in the United States.  For those of you who are unfamiliar with the Mitchell report, the "Mitchell Report" is the result of former United States Senator George J. Mitchell's investigation into the use of anabolic steroids and human growth hormone in Major League Baseball (MLB). The 409-page report, released on December 14th, 2007, covers the history of the use of illegal performance enhancing substances by players and the effectiveness of the MLB drug testing program.

In the Mitchell Report all of the gathered evidence linking particular players to steroid use was provided, but no conclusions were drawn as to innocence or guilt.  The players were provided an opportunity to refute any evidence linking them to steroids; at the urging of the players union almost all players implicated declined to cooperate.  In some cases, the evidence linking a particular player to steroids was flimsy when compared to legal standards of evidence - in essence “I overhead Bob talking about using steroids once or twice.”  In other cases, the evidence was much more substantial. 

Since the release of the Mitchell Report, sports pundits and legal analysts in the media have been crying to anyone who would listen about “Reasonable Doubt” and the concept of “Innocent until Proven Guilty” in the United States.  They claim that the standards of evidence in this Mitchell report could never be used in court of law.  After listening to this whining for roughly four weeks, I felt moved to speak out against this lunacy.  Seriously people, you’re lawyers… perhaps you should have paid a bit more attention in your law classes. 

First of all, the Mitchell Report never states conclusions.  Mitchell’s investigation was intended to unearth any evidence of steroids use; the Mitchell report is a detailed accounting of that evidence – both weak and strong.  Despite the media hoopla, the Mitchell Report does not state Roger Clemens used steroids.  It instead accurately reports the assertions of Brian McNamee, Clemens' former trainer, WITHOUT drawing conclusions.  This is exactly what Senator Mitchell was charged to do – with a limited budget and no subpoena power, collect and report all evidence of steroid use in Major League Baseball in an unbiased manner.

Secondly, the Mitchell Report BEARS NO LEGAL WEIGHT, and is therefore not subject to the same standards of evidence.  Even if the Mitchell report had legal ramifications, the concepts of “Reasonable Doubt” and “Innocent Until Proven Guilty” bandied about in the media are radically different than the practical application of these concepts in a courtroom.  Here’s the deal – even in a courtroom, “Reasonable Doubt” and “Innocent Until Proven Guilty” are determined on a sliding scale.

Using a personal example, I have been cited twice for urinating in public (UIP) without ever having committed the crime.  In the one instance, I was waiting for a friend to finish his 'business' behind a building.  I didn’t want to stare at my friend’s penis, so I faced the wall next to him.  When a cop came up and saw us both facing the wall, he cited us both.  My second ticket for urinating in public was under similar circumstances.  I fought both tickets in court, and lost… and I completely understand why.

In both UIP cases, I was innocent.  In both cases, there was certainly reasonable doubt – the officers even admitted to the judge they never actually saw my exposed penis or my ‘urine stream’.  Yet if the judge had let me off, the government could never give anyone else a UIP or a parking ticket.  We simply don’t have the resources as a society to hold ‘UIP’ tickets up to the standards of “Reasonable Doubt"; A UIP is a 75 dollar ticket, and its simply not worth the trouble to gather the evidence.  Instead, we accept the officer's interpretation of the events.  Yes, this means that occasionally people get bogus tickets, but this is a tradeoff we are willing to make in order to create ‘enforceable’ laws.  In these small cases, the offender is guilty until proven innocent by necessity.  

As the penalty for a particular transgression increases, the burden of proof increases.  O.J. Simpson was not convicted in a criminal courtroom; the evidence was deemed insufficient to condemn a man to life in prison.  He was, however, found guilty in a civil courtroom and asked to pay reparations to the victim's family for his crime.  The civil courtroom is based off of the standard 'preponderance of evidence', i.e. the jury felt there was a greater than fifty percent chance that OJ was guilty.

Although the Supreme Court has struck down all attempts to quantify ‘the percent chance of guilt’ that “Beyond Reasonable Doubt” entails, post-hoc analysis of jury decisions puts the number between 75 and 90 percent.  Whatever the true number may be, we accept as a given that a few innocent people will be punished for murders they did not commit in order to make sure that the majority of murderers are punished.  This is a necessary evil to maintain a functioning society.  Since the punishment for murder is so drastic, in these cases we tend to err on the side of caution… and more murderers get off unpunished to protect the innocent.

Now let’s put this information in the context of the Mitchell Report.  We must answers the following questions:

1)       What is the likelihood that a truly innocent man was implicated in the report?

2)       What are the negative consequences to said player?

3)       Are these negative consequences offset by the positives of shedding light onto the steroid era of baseballs?

Question 1:  What is the likelihood that a truly innocent man was implicated in the report?

In answer to Question 1, the one thing the Mitchell Report underscores is that there were no innocent parties.  Not the commissioner of baseball, not the teams, the owners, the managers, the trainers, and especially, not the players.  Yes, some of the players named in the Mitchell Report may not have used steroids… but ALL of them were aware of the problem, aware of others who were breaking the rules, and didn’t turn them in.  And YES, that is part of the players’ obligation to baseball, as stated EXPLICITLY in their contracts.

Question 2:  What are the negative consequences to said player?

For the most part, the MLB teams continue to sign players implicated in the report to large quantities of money.  Yes, there are a few fringe players who may not be signed because of their association with the report.  All of the players involved continue to make a living WELL above the poverty line, and continue to be able to provide for their families.  The damage that has been done is in terms of reputation and ‘place in the history of the game’. 

‘Reputation’ and ‘placement in the history of the game’ are difficult concepts to quantify.  Some baseball enthusiasts maintain that nobody was guilty of steroid use, or simply don’t care if they were.  Others baseball fanatics think the sport has been forever changed, and an asterisk should be placed by all records achieved during the ‘Steroids Era’.  These negatives are regrettable, but nowhere near as life altering as a 'death sentence' or 'life in prison'.  Therefore, it is reasonable that the standards of evidence should be less.

Question 3:  Are these negative consequences of naming names in the Mitchell Report offset by the positives of shedding light onto the steroid era of baseball?

This is the most difficult concept to quantify.  Baseball was at an all-time high in revenue prior to the Mitchell Report.  However, the Barry Bonds investigation, coupled with the pitiful performance of Mark McGwire, Raphael Palmeiro and company at the 2005 congressional hearing had tainted baseball.  As baseball ‘fandom’ is based more on statistics than any other professional sport, the long-term consequences of not investigating the prevalence of steroids in baseball cannot be understated.

 Steroid use is a thorn in the side of baseball that if left unaddressed will continue to fester.  The only way to adequately protect against future steroid misuse is to understand what went wrong in the past, and draw attention to the issue.  Naming names in the report was the only way to draw the national attention necessary to get the problem addressed.  Considering the proliferation of new drugs that cannot be detected, placing names in the report was absolutely necessary to discourage future misconduct.  MLB needs potetial offenders to believe that even if they aren't caught and punished immediately, they will never be completely off the hook for missed transgressions. 

In my opinion, the benefit of the Mitchell report drastically outweighs any of the negatives.  Simply put, no one has been ‘convicted’ of steroid use; instead the evidence, along with the sources, has been detailed.  In some cases that evidence is strong; in others, the evidence is hearsay and conjecture.  As with all things, individuals should look at the strength of the evidence themselves before drawing conclusions.  In all cases, more investigation is warranted before suspensions or other punishments are levied.