Alan Millstein: Brady's chances of en banc hearing dramatically improved with latest amicus filings

PatsFanSince74 said:

As I've said about a million times, I'm not trying to convince anyone. It's just my view based on Chin's history. You disagree. No prob. Let's stop wasting each other's time.

But, here is the opening of the first substantive paragraph of Olson's brief, in which he notes the shifting evidence on which Goodell relied to make his "decision:"

"...Even though his arbitral authority was limited to hearing appeals of disciplinary decisions, Goodell “affirmed” Brady’s punishment based on different grounds that were not the basis for his original disciplinary decision." (my underline)

Olson's entire brief focuses on the shifting evidence on which Goodell relies for disciplining Brady. That is exactly what Chin was pursuing. He states that the evidence looks "overwhelming." That opened the door for Kessler to argue that the Commissioner changed the "evidence" to suit his purposes.

But, once again, I'm not trying to change anyone's mind on this. I'm in a small minority that sees it this way. That's fine with me, but I'm done with arguing about it.

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I find your theory persuasive FWIW.

PatsFanSince74 said:

As I've said about a million times, I'm not trying to convince anyone. It's just my view based on Chin's history. You disagree. No prob. Let's stop wasting each other's time.

But, here is the opening of the first substantive paragraph of Olson's brief, in which he notes the shifting evidence on which Goodell relied to make his "decision:"

"...Even though his arbitral authority was limited to hearing appeals of disciplinary decisions, Goodell “affirmed” Brady’s punishment based on different grounds that were not the basis for his original disciplinary decision." (my underline)

Olson's entire brief focuses on the shifting evidence on which Goodell relies for disciplining Brady. That is exactly what Chin was pursuing. He states that the evidence looks "overwhelming." That opened the door for Kessler to argue that the Commissioner changed the "evidence" to suit his purposes.

But, once again, I'm not trying to change anyone's mind on this. I'm in a small minority that sees it this way. That's fine with me, but I'm done with arguing about it.

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I admire the thought and time you've put into this, but I'm just not convinced about Chin. Like others, I'll be pleased as hell if you're right and I'm wrong.

Apparently someone's alive over at CA2 -- they dismissed Crazy McGuirk's stuff.

Wonder if that means they'll be getting to the real stuff soon.

Though Wallach doesn't think there's any correlation between denying McGuirk and being about to release something substantive.

PatsFanSince74 said:

As I've said about a million times, I'm not trying to convince anyone. It's just my view based on Chin's history. You disagree. No prob. Let's stop wasting each other's time.

But, here is the opening of the first substantive paragraph of Olson's brief, in which he notes the shifting evidence on which Goodell relied to make his "decision:"

"...Even though his arbitral authority was limited to hearing appeals of disciplinary decisions, Goodell “affirmed” Brady’s punishment based on different grounds that were not the basis for his original disciplinary decision." (my underline)

Olson's entire brief focuses on the shifting evidence on which Goodell relies for disciplining Brady. That is exactly what Chin was pursuing. He states that the evidence looks "overwhelming." That opened the door for Kessler to argue that the Commissioner changed the "evidence" to suit his purposes.

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Clearly you read a different brief than everyone else because Olson's brief didn't just focus on the "shifting evidence" as you claim. It focused on all the items that Bermand didn't cover which include evidentiary partiality, shifting discipline, and bias of the NFL..


What is clear to me is that part of the problem is that you are claiming Chin said something that he didn't actually say..

Here is Chin's quote "the evidence of ball tampering is compelling, if not overwhelming." He did NOT say the evidence "looks" compelling, if not overwhelming.

NFL Appeal oral arguments thread

So, this idea that he somehow gave Kessler an "opening" is fictitious, imho. Furthermore, you ignore the fact that the 2CA was supposed to be focused on procedure, not evidence. Yet, throughout, it was the evidence they kept going back to.

Chin focused on:
- "the evidence" of ball tampering
- Brady's destruction of the cell phone
- the texts messages between Jastremski and McNally

One thing that seems to be over-looked is that Chin said this:

"Those were discussed in your brief?"

Chin said that in regards to Kessler making points about sending the case back to Berman with a focus on the evidentiary partiality and bias of Goodell.

Chin would know this if he'd read the brief.

And later Kessler DID make a statement about the commissioner not being able to change the discipline just because "new facts" were found..

NFL Appeal oral arguments thread

All I have stated is that Chin didn't do his job by focusing on the evidence.

I'll take your word that he's considered a "great labor lawyer". That doesn't have any bearing on whether he's a good Appellate Judge, imho..

It doesn't matter anymore, Chin ruled against Brady. There's no reason to argue in circles about it.

Only thing i can say for certainty regarding chin is i was shocked at his decision. based on his background, i felt pretty good about him ruling in favor of brady. and like everyone else, his statements were very strange to me. i have no idea why he said/did what he did. was he just unprepared? possible. was he lobbing one in there for kessler to hit out of the park? thats possible too. But theres one thing about this whole appellate process that bothers me and i havent seen anyone/anywhere mention this. Its about the appellate process itself being ridiculously inefficient in a particular way. Heres what i dont understand-why have just 3 judges rule on a case-with the number of judges being so low, if you had, say, a lazy judge not be properly prepared(as some here think was the case with chin), thats going to greatly impact the decision. so that just one lazy judge could help create a miscarriage of justice. Why not instead, have the en banc from the get-go? That would solve several problems. 1. if you have 9 or so judges(actual # is irrelevant,a s long as its a lot) ruling, one lazy judges impact would be minimal,so the correct decision would be more likely. 2. wouldnt also save taxpayer $ and courts time-because if you lose an en banc appeal-doesnt it make sense that far fewer people would appeal that, and if they did, would be far more likely to be turned down by the SC. Im no expert on the appellate process, but it seems pretty inefficient. there are now going to be at least 3 separate judicial hearings. why not go straight from berman to en banc and save everybody time and money? it pisses me off as a taxpayer, but more importantly-i think most americans woulod agree-getting it RIGHT in every case and making sure justice is done is even more important. would like to hear the take on this from those who have studied this process alittle more.

jimnance said:

Heres what i dont understand-why have just 3 judges rule on a case-with the number of judges being so low, if you had, say, a lazy judge not be properly prepared(as some here think was the case with chin), thats going to greatly impact the decision. so that just one lazy judge could help create a miscarriage of justice. Why not instead, have the en banc from the get-go?

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Too many cases.

That makes sense but seems like there should be some middle ground. Like maybe 4 or 5 judges. Would ensure fairer outcome in the case of a corrupt or unprepared judge. And make it the end of the line. No more appeals other than SC. That would allow more cases to be heard. Anyway, just an observation

jimnance said:

That makes sense but seems like there should be some middle ground. Like maybe 4 or 5 judges. Would ensure fairer outcome in the case of a corrupt or unprepared judge. And make it the end of the line. No more appeals other than SC. That would allow more cases to be heard. Anyway, just an observation

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Well not picking on you, and also IANAL. but, we could continue crapping on elites within an elite profession, or we can realize that with three judge panels versus what, fifteen on the en bank panel, they can decide five times as many cases. This feature means that this system is much more efficient. And also this arrangement underscores why obtaining en banc is so difficult: because, most of the time, three judges can decide these things fairly and effectively given sufficiently competent legal representation.

PatsFanSince74 said:

As I've said about a million times, I'm not trying to convince anyone. It's just my view based on Chin's history. You disagree. No prob. Let's stop wasting each other's time.

But, here is the opening of the first substantive paragraph of Olson's brief, in which he notes the shifting evidence on which Goodell relied to make his "decision:"

"...Even though his arbitral authority was limited to hearing appeals of disciplinary decisions, Goodell “affirmed” Brady’s punishment based on different grounds that were not the basis for his original disciplinary decision." (my underline)

Olson's entire brief focuses on the shifting evidence on which Goodell relies for disciplining Brady. That is exactly what Chin was pursuing. He states that the evidence looks "overwhelming." That opened the door for Kessler to argue that the Commissioner changed the "evidence" to suit his purposes.

But, once again, I'm not trying to change anyone's mind on this. I'm in a small minority that sees it this way. That's fine with me, but I'm done with arguing about it.

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That isn't about evidence it's about the authority of the arbiter. How compelling the evidence is has nothing to do with whether the arbiter has the authority to find the individual guilty of something different than what the punishment was based upon.
To wit: commissioner goodell suspended Brady for being more likely than not generally aware.
Arbitrator goodell found Brady guilty if masterminding a scheme that included bribes and inducements.
Pretty clearly this was in response to the correct argument by Brady's team that you can't suspend for being generally aware.
In other words arbitrator goodell found no basis to hold up the original punishment then acted as commissioner goodell in assessing the same ounishment for a different violation which is not within his authority.
It's not about the evidence it's about the process.

Additionally to suggest that a judge feels the evidence is a sham (when he is not ruling in evidence or guilt or innocence) so he says it's strong to prompt an attorney to say it isn't and then finds against him because he didn't like his attitude is just silly. It's like convicting an innocent man because you don't like his suit.

Richard Camembert said:

Well not picking on you, and also IANAL. but, we could continue crapping on elites within an elite profession, or we can realize that with three judge panels versus what, fifteen on the en bank panel, they can decide five times as many cases. This feature means that this system is much more efficient. And also this arrangement underscores why obtaining en banc is so difficult: because, most of the time, three judges can decide these things fairly and effectively given sufficiently competent legal representation.

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I would not call judges"elites" or an "elite profession", any more than say, engineers or carpenters etc. Position, money and power have never impressed me. What impresses me is excellence-i have way more respect for say, an excellent electrician than a mediocre judge.

Here's a question, would they be taking this long if they were going to just reject the case out of hand?

VectorPrime said:

Here's a question, would they be taking this long if they were going to just reject the case out of hand?

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I don't think anyone knows the answer to that question, we won't find out until they respond. Hopefully the McQuirk dismissal indicates they are finishing up the considerations.

VectorPrime said:

Here's a question, would they be taking this long if they were going to just reject the case out of hand?

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Cruelty?

jimnance said:

I would not call judges"elites" or an "elite profession", any more than say, engineers or carpenters etc. Position, money and power have never impressed me. What impresses me is excellence-i have way more respect for say, an excellent electrician than a mediocre judge.

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If there's one thing I've learned, it's that anyone can suck at their job, no matter how much experience it takes to acquire. From McDonald's burger flippers, to doctors, to the president of the US.... I've seen people everywhere wearing shoes they can't fill.

VectorPrime said:

It doesn't matter anymore, Chin ruled against Brady. There's no reason to argue in circles about it.

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Well gee, that approach would wipe out 90% of the conversations on this board...

jimnance said:

I would not call judges"elites" or an "elite profession", any more than say, engineers or carpenters etc. Position, money and power have never impressed me. What impresses me is excellence-i have way more respect for say, an excellent electrician than a mediocre judge.

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A-freaking-men.

VectorPrime said:

Here's a question, would they be taking this long if they were going to just reject the case out of hand?

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Depends if they are Jet fans or not?

Don't think there is much in the way of rhyme or reason, just have to sit and take it as a lesson in patience.

VectorPrime said:

Here's a question, would they be taking this long if they were going to just reject the case out of hand?

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They are government workers with lifetime appointments. The need a dictionary to look up the word "urgency".

I am assuming that there is some healthy debate between judges on this. They may actually be doing some diligence on the NFL's assertions.

VectorPrime said:

Here's a question, would they be taking this long if they were going to just reject the case out of hand?

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Another possibility is that they decided to decline the petition and a judge is writing a dissenting opinion. Or maybe they are busy with other work. We simply don't know what they are doing. Usually petitions are declined immediately. So is that a good sign? A bad sign? People have filled the empty space with all sorts of scenarios, but these scenarios are more revealing about the writers' minds than about what CA2 is doing.