About midway through Pete Rose on Trial, which aired Thursday night on ESPN, a TV show broke out. For the first hour and a half, things were pretty tepid in the mock trial as Alan Dershowitz (prosecution) and Johnnie Cochran (defense) presented their cases for whether or not Pete Rose should be eligible for baseball's Hall of Fame.
You knew right off what kind of trial it would be when Judge Catherine Crier announced that procedure would follow "the spirit but not the minutiae of the law." (The spirit of whose law? The Rose issue has never come to court, and Rose wasn't even present Thursday.) Commentary was ineptly handled by ESPN's Bob Ley and CNN legal analyst Jeffrey Toobin, both of whom seemed prepared to accept Major League Baseball's case against Rose and who appeared stunned at the end when the jury voted 8-4 in Rose's favor. More than 300,000 call-in and online votes went Rose's way by a margin of nearly 4-1.
Most of the "evidence" came in the form of testimony from former ballplayers such as Jim Palmer, Henry Aaron, Dave Parker, Steve Garvey, and Bill "Spaceman" Lee. The players commented on whether Rose's achievements as a player merited a plaque in Cooperstown (of course they do) or whether Rose's gambling activities (about which none of the former players knew anything specific) invalidated his claim to the HOF. Most notable among them was Lee, who admitted he thought Rose had bet on baseball but answered "not really" when asked whether or not Rose's alleged transgression merited a lifetime ban from baseball.
Dershowitz fouled out by comparing the accusations that Rose bet on baseball to Shoeless Joe Jackson's lifetime ban for conspiring to fix the 1919 World Series. Whether or not Jackson actually helped fix the games will always be open to question, but there is no question that he conspired and took the money. No one has ever claimed such a thing regarding Pete Rose, who has been accused of nothing more than betting on sports without a shred of hard evidence that he ever bet on a baseball game.
That's the crux of the matter. The beginning and end of all arguments that Rose bet on baseball come from the Dowd Report, which then-commissioner Bart Giamatti ordered in 1989. (The report is named for John Dowd, Giamatti's handpicked investigator.) This must have occurred to Alan Dershowitz, who, like so many lawyers who are passionate baseball fans, gets a little nuts on the topic of Pete Rose. On Thursday, Dershowitz got a little nuts with the writer Bill James, who has done more to point out the Dowd Report's fundamental flaws than anyone else.
Johnnie Cochran had already scored big when he coaxed James into testimony that called into question the prosecution's primary evidence:
JC: "And to the extent of relevance to these proceedings, can you describe that report for us and for this jury? What was in that Dowd Report?"
BJ: "The Dowd Report is a prosecutor's brief. It is my opinion that early on in the process of investigating the allegations against Pete Rose, Rose met with Dowd, and Rose told Dowd a number of lies. Dowd understandably became very angry, and he became convinced that Rose was guilty, and he wrote a prosecutor's brief intended to prove that Rose was guilty."
JC: "You've read that report, haven't you?"
BJ: "I have."
JC: "Now, there's never been any official finding by baseball that Pete Rose ever gambled on baseball. Is that correct?"
BJ: "That is correct."
If I were—and you'll please excuse the expression—a betting man, I would give odds that in an actual trial, those points, which have never been challenged by any of Rose's critics, would offer a surer chance of victory than Sandy Koufax pitching in a night game at home against the New York Mets the day after Rosh Hashanah. In fact, they have proved so irrefutable that they are the primary reason why MLB has never tried to make a legal case against Rose.
Dershowitz must have concluded that he couldn't put a dent in James' case against the Dowd Report, so in his cross examination he decided to undermine James' credibility. On the subject of Paul Janszen, the body builder and Rose flunky who had testified that Rose placed bets on baseball, James has written: "Janszen and his girlfriend both insist that these were Pete Rose's bets, and both took lie detector tests to prove it. And both failed. When Janszen failed his lie detector test, John Dowd arranged for him to be re-tested by a more sympathetic polygraph artist, and Janszen got by the second test. When his girlfriend bombed her test, Dowd just wrote her off as a lost cause, and failed to mention in the Dowd Report that she had ever taken the test."
Rather than dealing with the key point as to whether Janszen, who had several axes to grind with Rose at that point, was lying about who placed the baseball bets, Dershowitz chose to focus on Janszen's girlfriend, Danielle Markham. Dershowitz argued that there was no evidence that Markham had ever failed a lie detector test and asked James where he got his information.
BJ: "It has been reported."
AD: "When has it been reported?"
BJ: "On 20/20."
[An attempt to verify this with the producers of 20/20 is as yet unsuccessful.]
Dershowitz then went ballistic.
AD: "You made it up!"
BJ: "No, sir."
AD: "Did you make a serious mistake?"
BJ: "I'm certain I've made many serious mistakes. I do not believe that this one of them."
AD: "You still maintain that she flunked that test."
BJ: "It has been reported."
AD: "And that's how you get your facts, 'It has been reported'?"
James had no comment. From there, Dershowitz tried a knockdown pitch, which turned into a passed ball:
AD: "You said that baseball was out to get Pete Rose?"
AD: "In your writing, sir."
BJ: "No, sir."
AD: "I'll tell you where you said it."
BJ: "I did not ..."
AD: "I'll read you what you said. 'John Dowd's job was to investigate Rose's life to see if he could catch him doing something wrong and that Rose was going to be suspended for something.' Now why would baseball be out to get its most valuable asset?"
BJ: "Rose was going to be suspended at that time because he was engaged in a variety of serious misconducts."
AD: "Like what?"
Judge: "Final question."
AD: "I'm happy to rest with 'misconduct.' "
At which point Cochran, approaching the bench for his redirect, responded, "That was misconduct, not gambling," referring to Rose's problems with the IRS.
The vehemence of Dershowitz's attack seemed to shake up the courtroom and completely change the mood of the show. At the break, a surprised Bob Ley commented, "Perhaps we just had a Perry Mason moment in this trial?" Jeffrey Toobin added that Dershowitz "Had Bill James speechless. ... He laid a trap for him and Bill James walked right in."
What didn't seem to occur to them is that Dershowitz had laid his own trap, and James, by refusing to take the bait, let him walk into it. The issue of Paul Janszen's lack of credibility as a witness against Rose was left out in the open for all to see.
In his redirect, Cochran restated a point that James has hammered home on many occasions, namely that Commissioner Giamatti wrote a letter to a federal judge requesting leniency for the four witnesses who had federal cases pending against them, stating that he "found them forthright, truthful and candid." The letter was written in April 1989, beforethe Dowd Report came out, indicating that the commish had reached his own conclusion about Pete Rose's guilt or innocence before the report he ordered was completed.
Finally, Cochran hit a walk-off home run when he summed up the argument for Rose and the Hall of Fame in three words: "Enough is enough"; several of the jurors and countless thousands of e-mailers echoed the phrase. Or perhaps walk-off home run is not the right phrase, since Dershowitz had the last word but failed to score.
Let's call Cochran the closer in the Pete Rose issue, the Mariano Rivera of lawyers. Bill James was his setup man.
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