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Transcript: Manion on D&C

04.13.10 at 11:29 am ET

Boston attorney Harry Manion was a guest of the Dennis & Callahan show Tuesday morning to talk about the Ben Roethlisberger situation. Following is a transcript.

Six months ago I was retained by a client of mine, a close friend, to investigate allegations against Ben Roethlisberger in a Las Vegas nightclub that were absolutely identical to this Georgia girl’s story. And the outcome was the young woman did not want to proceed and we dropped it and never took any action. But there is a history here ‘€” and I can’€™t say any further because we never proceeded with it ‘€” but there is a history here that is just super troubling.

Does a guy who’€™s accused of sexual assault, does he feel emboldened when the charges are dropped?

Unless he’€™s totally brain dead, and we don’€™t know, he would be scared. Because he has really walked a perilous line here, there’€™s a whole litany here, not only my experience, I have connected to several other people that have experience. And there’€™s only so far that he said she said will get you and there’€™s only so far that hush money will get you if hush money is paid, and there’€™s only so far as, gee, we’€™re all celebrities, we have a target on our back will get you. When you see this much smoke month after month and continuously, and from ‘€” this young woman was out with her sorority sisters, in the bar in Georgia, my client was a graduate of college, 26 years old, out socially with a bunch of other young women, grabbed from the line, brought up to the VIP suite ‘€” the same old story. You would think that the handlers of Ben, the agents who get 3-4 percent of the contract, and however much of his endorsements, would say ‘€œBen. You have to stop.’€ Even if you haven’€™t done anything and you’€™re presumed innocent, you haven’€™t been proven guilty of anything, these allegations are killing you. They’€™re hurting your career, they’€™re hurting your marketability, they’€™re not good. And we know you are there at 1:30 in the morning, in the VIP room, doing shots, take a look at that. Because that’€™s when stuff happens. I hope, Gerry, that someone will talk to this guy, he’€™s a young guy, 26 or 27 years old, he’€™s got a lot of football left, a lot of life left. As you know, I’€™ve represented a lot of people in Ben’€™s shoes before, and most of them get it, some don’€™t.

Vegas, Tahoe, Georgia ‘€” doesn’€™t he qualify under the brain-dead category?

Yeah, how much is driven by the party atmosphere and alcohol? I mean, you don’€™t know. This isn’€™t happening at 4 o’€™clock in the Starbucks while you’€™re drinking lattés. This is 1:30 in the Vegas club, or 3:30 in the Vegas club, with shots and the private room, with bottles of Grey Goose floating around and the music and the whole scene. And it’€™s the scene that he has gotten himself caught up with the belief that he can walk. And so far, so good. But it’€™s hurting him. He’€™s hurt, he has been damaged, and the next one, the wrath of God is going to come down on him ‘€” if there is a next one.

Why didn’€™t the D.A. bring charges?

By far and away the unwillingness of the victim to proceed. Once that occurred, and the young woman ‘€” for whatever reason, and there may be civil discussions going on. Virtually every case I handle, not one of them ever went to prosecution. And remember guys, we’€™ve been down this drill before, we’€™ve done this drill, you cannot make a civil settlement, you cannot pay the victim when criminal charges are pending, that’€™s obstruction of justice. So you’€™ve got to make sure, if you’€™re looking for money, and I’€™m not saying this young woman is, but if you are looking for money and that is going to be the way you get compensated, you get your injuries addressed, then you cannot permit a prosecution. So first and foremost, John, it’€™s the unwillingness of the victim. Very hard to win a sexual assault case, even a groping case, without the victim. Second, I would rate it the lack of corroboration. The corroboration is a moving target, John. There is some physical corroboration here, DNA was inconclusive, but there are some marks that are relatively inexplicable and they do tend to support. They certainly could have been obtained elsewhere. Intoxication, John, it’€™s in every case. Not every case, but most of these kind of celebrity cases at two in the morning, the victim has been drinking.

It just seems so hard to get the victim to testify, not be discredited, and get a conviction. How do D.A.’s ever get one?

It’€™s hard, Gerry. Remember, there are two kinds of rape. There’€™s the forcible rape, where there’€™s no question; there’€™s a gun, and that’€™s a question of identification. We’€™re talking about, in these contexts, what we call ‘€œconsent.’€ What level of consent occurred in that hotel in Aspen with Kobe Bryant. What level of consent has occurred? What did the woman agree to? Did she agree to kissing? Did she agree to touching? What did she agree to and when did she give a clear sign of no? Because the clear sign of no starts you over the line and over into criminality. Let me tell you something ‘€” in a consent case, I’€™ve tried six of them, all six resulted in acquittals. Because, it takes an enormously committed and absolutely courageous victim to go forward. And unfortunately, in all my cases that I would up trying and the other one’€™s I’€™ve handled, it’€™s a really cloudy issue. It’€™s almost always clouded by drugs and alcohol.

With your client in Vegas, was there someone there who persuaded her to pursue this, or did she make the decision on her own?

She made the decision unilaterally, herself. She’€™s got a business degree, she’€™s very intelligent, very accomplished young woman. And she just said, I put myself in the position, and I got myself there, and I basically laid out her rights to her.

Does anybody say what about the next girl? The next victim?

She did, and what can you do? Unfortunately, I had to say, and I’€™ve said this to victims, because I’€™ve represented both defendants and victims in circumstances like this about equally. And I had to say, the minute you come forward, the police will tell you they’€™ll keep your name out of it, and that’€™s just not true. In today’€™s age, you will be known. You will be on the blogs, there will be discussions about you, and by the way, if you go forward, be prepared to be investigated, every act you committed back to the cradle. It’€™s an unlimited budget, and if you make an allegation against a professional athlete, a movie star, they are going to come at you with everything they have. And if you’€™re willing to do it ‘€” I’€™m willing to do it. But if you’€™re not, let’€™s not start. And that happens many, many times.

So she already knew from her own counsel what would happen?

Sure. At the end of the day, the victims often say, ‘€œWell what will happen to him?’€ And I don’€™t think this was an allegation of rape, they call it sexual assault, so I’€™m assuming there was not a rape here, that there was some sort of groping. And the situation that I was briefly involved in, it was certainly not rape, it was a public place, it was allegedly not consented to sexual touching. But you say to the victim, at the end of the day, your best case is, he’€™s convicted, and I don’€™t know what he’€™ll get. It completely depends on what he’€™s convicted of. It could be indecent assault, which is relatively minor, he’€™s got no record, he could walk, he could get house arrest, he could pay a fine, he might get some small jail time ‘€” so what’€™s your upside here? And when you weight that against the tremendous intrusion on your life and what you have to go through, a civil settlement, a confidential civil settlement, looks very hard to pass up.

Will we ever know the details of what happened that night? And, is it less likely we’€™ll know if a settlement takes place?

Certainly, John. If there’€™s a civil settlement, what you’€™re buying is the confidentiality, and often withholds payments or staggers them over time to let the furor die down. So let’€™s say, and we have no knowledge of this, I’€™m just basing this on my experience hypothetically. If they pay her $100,000 for whatever happened there, this misunderstanding without admitting or denying any liability. You often pay her $50,000 on signing, which the lawyer gets a third usually, who signed her up, and now he’€™s happy. Then you pay another $25,000 in six months, another $15,000 in 18 months and another whatever in two years. And that lets the time to go and keeps her quiet, and not going to the tabloids or to the blogs, or to the newspapers or to a book. And this isn’€™t worthy of much of that. My guess is that there’€™s going to be a deal here, because she has lawyers, but I don’€™t know that.

Have you ever seen a rape conviction without the victim’€™s cooperation?

Yes, there have been, but they are a very, very small percentage. I’€™ve read about them, and I think either Tom Reilly or Martha Coakley got one when they were D.A.’€™s, because I remember vaguely talking to either Tom or Martha about it. But it’€™s one in 10,000, it’€™s just very hard to do. I mean, think about it; you have the burden beyond a reasonable doubt to prove that an unpermitted sexual assault happened, and how do you do that? And then the jury, who are just good common sense people in Massachusetts or Georgia say, ‘€œWhere is she? Why don’€™t we hear from her?’€ What’€™s the problem? Obviously, she’€™s got problems, so, it’€™s almost impossible. Just very hard to do.

When does DeMaurice Smith put you on retainer?

I’€™m a management hack, after Bob Woolf died, although I do represent a whole bunch of players in business stuff and personal stuff.

Did you see the police blog yesterday? Leroy Hill busted for marijuana and then he picks up a domestic assault charge?

The Players Association will tell you, Scott Boras will tell you that they spend an enormous amount of time and money on consultants that meet with the draft choices, that meet with the rookies, that take them into the wood shed and tell them all the dangers and pitfalls that are out there, and the nightclubs, the groupies, the media ‘€” everything you need to watch for ‘€” particularly your family and friends with whom you surround yourself with, who might shoot an innocent bystander. They go through tremendous amounts of education, and they make it available to their players. Some don’€™t listen. It’€™s that simple.



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