Pearl's Benefit of the Doubt Goes Poof

Back in 1996, in my first semester of Criminal Law at UT, the professor kicked off an hour-long discussion about one of the fundamental precepts of criminal jurisprudence in the U.S., Blackstone's Formulation that it is "better that ten guilty persons escape than that one innocent suffer." Some of us resisted the principle, pointing out that the new victims of the recidivism of the ten who went unpunished for their crimes would disagree.

Regardless, it is beyond dispute that our criminal justice system is built with this tenet foremost in mind, and because of this, the entire system is set up to maximize the odds that only the truly guilty are punished. Certain phrases in criminal law -- "presumed innocent," "innocent until proven guilty," "burden of proof," "beyond a reasonable doubt", among others -- have been uttered so many times in so many cop and talk radio shows to have almost lost their meaning, but they're extremely important because they define the parameters of the process, the rules of the game. The defendant is presumed to be innocent, and it is on the prosecution to prove otherwise and to do so beyond a reasonable doubt (in most, if not all, criminal cases). Even the rules of evidence -- what you can and can't use to make your case -- favor defendants. The accused are given the benefit of the doubt at almost every turn.

What's this have to do with Tennessee athletics? Hold on, I'm getting there.

Some of the rules do change, however, depending on the context. They are most strict (the prosecution in a criminal trial must prove that the defendant is guilty beyond a reasonable doubt) in criminal cases where the punishment awaiting on the other side of a guilty verdict may deprive the defendant of his life through imposition of the death penalty or of his liberty through a prison sentence. In civil trials, though, like lawsuits between citizens arguing over who did what wrong to the other, the burden of proof might be something less than "beyond a reasonable doubt." It could be "clear and convincing evidence" or a "preponderance of the evidence," the latter of which is fun because you just have to be a little more right than the other guy. But I digress.

Setting the parameters of the analysis is absolutely critical, and it often directly affects the outcome. We're not just talking about law here, either. The notion applies across the board. It's the underlying premise of Pascal's Wager. It's the reason "innocent until proven guilty" doesn't necessarily apply outside the legal system, such as when you're deciding whether to hire that guy who was just fired for allegedly embezzling funds from his prior employer. You can choose to come to your own conclusions about someone using your own framework of analysis when the only thing at stake is what you think of that person. After all, you're not sending him to the electric chair.

And that right there is the main reason fans will probably never view their rivals' alleged wrongs the same way their rivals do. Your prior relationship with the "defendant," assuming it's a positive one, causes you to set up the parameters of analysis in a much different way than those with a different relationship with the defendant, and the differing frameworks will often lead to different conclusions. When it's your son on the stand facing dire and life-removing or -changing consequences, he rightfully gets a full measure of the benefit of the doubt, at least from you. But when it's "that creepy kid who killed that pretty little girl while drunk driving," well, things are different. It's why juries often have such a hard time with celebrities. They don't want to believe someone they have positive feelings for did something so wrong, so they demand a higher burden of proof.

As a Tennessee fan still in the full on swoon stage with Bruce Pearl, I was giving him a full measure of the benefit of the doubt. Mounting evidence trickling in from periodic reports chipped away at my resolve to continue to believe in him, but the parameters I had set still left room for support. Until this weekend, that is, when GVX reported additional details concerning Pearl's lie to the NCAA about the picture of Aaron Craft in his house and the reasonable part of the doubt was removed. Pearl had said that he panicked and that he'd come clean and told the NCAA that he'd lied. To me, that didn't erase the lie, but it did mitigate the circumstances of it. The version of events I wanted to believe were that Pearl was surprised by the presentation of the picture and the question about whether it was of him and Craft in his house, that he spoke before thinking about it like the kid with his hand in the cookie jar nearly falling off the counter when his mother walks in. "No. I wasn't getting a cookie. It wasn't me. I was just getting a drink." It was a falsehood so reflexive, idiotic, and implausible that it had to be, and was, conceded quickly before too much damage was done.

The GVX article suggests, though, that Pearl wasn't caught off guard and that he had several days to think about his response. It's important to note that although the article says that "[n]either Pearl nor [Mike Glazier, UT attorney] were caught off guard", the rest of that paragraph says only that the NCAA told Glazier that they were coming to ask about the picture in six days. It doesn't say that they told Pearl. Still, even though the article doesn't say that Glazier told Pearl, you would expect that he would. At the very least, Pearl learned about the picture from Steve Forbes, who was asked about the picture first, prior to meeting with the NCAA investigators himself at least some time in advance of actually being asked. He wasn't ambushed.

I suppose it's possible that Glazier never told Pearl that they were going to ask about the picture and that Pearl's "panic" was related to what he was supposed to say when one of his assistants had already disclaimed knowledge of the location shown in the picture. But all of that is asking a bit much and raising the standard of proof of guilt beyond anything reasonable. Perhaps a particularly zealous attorney choosing to go down fighting makes that argument, but we're not being paid to represent Pearl.

As an aside, there's been some discussion about the fact that the most damning evidence was elicited not by the NCAA investigators but by the University attorney himself, who outright asked Pearl if the picture was of his house. This is indeed perplexing. I don't know Mike Glazier, but I do know this: He's the university's attorney, not Pearl's. Speaking from experience, representing organizational clients is an incredibly tricky and hazardous engagement. You represent the organization. You do not represent any of its employees, although the employees almost always believe that you do. Investigations are particularly tricky. An attorney representing an organization and interviewing an organizational employee as part of an investigation is supposed to give that employee his or her "Corporate Mirandas." This is a statement making clear that the attorney represents the company, not the employee. The problem with this is that investigations come in all flavors and often travel the continuum of formality at speeds that cannot be anticipated. Most often, the interests of the employee and the organization are aligned, and a united front is the desired strategy. Unfortunately, sometimes those interests diverge, and you never know at what point that might happen. There is abundant case law in which excellent attorneys have royally screwed this up with catastrophic consequences. (Mandatory ethics CLEs for the win!) It happens.

Sometimes the point at which the interests diverge is the determination that the employee has done something wrong that cannot be jointly defended. Sometimes it's when you realize that the employee has lied to you, which they have an increased tendency to do after you've put them on the defensive by reading them the required corporate Miranda warning. Sometimes it's when the employee decides his own strategy of further deception is the better one and surprises you by answering a question differently than he did before in private consultation. I don't know that any of that stuff happened. It could be just as likely that the University attorney made an egregious mistake by asking a question in front of NCAA investigators to which he didn't know the answer. I don't know.

Bottom line, the whole ordeal has been a constantly changing landscape, and no one should be surprised that the Tennessee administration viewed things favorably to itself and to Pearl because it wanted to believe that things were okay. Nor should anyone be surprised that Vol fans view the situation differently at different times than fans of Tennessee's rivals. In any event, the latest bit of information likely put the last of us over the top and obviates the possibility of a hung jury on this particular question. Pardon us for insisting on more proof than others required. We wanted to be sure.

Now here's something we can hopefully all agree on quickly: The sooner this all gets resolved once and for all, the better.

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