SPOILER ALERT: This is about the past. 11W staff writer Jeff Beck tossed out a question in one of his columns and I think it deserves a discussion of its own. If the past does not interest you then don't read this blog. Nothing is gained by you adding yet again that the cat is dead. Some of us like to analyze.
SPOILER ALERT #2: This will be a long post. It is being offered as a blog so that it can be long. If reading long posts tires out your brain then don't read, but nothing is gained by adding a comment saying nothing more than that this is too long.
And now on with the show. I'll start with something other than football. It is relevant, bear with me.
I'm a criminal defense lawyer. Most people who are not lawyers think a lawyer's job is to be devastating in the courtroom. Not true, at least in criminal defense. No less than the United States Supreme Court recently observed that often THE most important part of defense is plea bargaining - trying to come up with a lesser charge and/or a lower sentence that will be acceptable to both the prosecutor and the client. Giving something, but getting something in return. The part that goes with this is giving clients good advice so they know whether what seems like a big punishment is big or small compared with what else is out there, and what the likelihood of various outcomes really is.
So to give an example, in Maine where I practice law drunk driving (OUI) is an offense with a maximum possible sentence of 364 days, a minimum of zero, and anything at the ends or in the middle within the discretion of a sentencing judge. Typically drunk drivers get sentences of zero to three days for a first OUI conviction. Getting the maximum 364 days for a first offense OUI is theoretically possible but in practical terms almost impossible. On the other hand, getting a sentence of zero days upon conviction for a first offense OUI is pretty common but no one having been found guilty after trial of an OUI should assume that 2 days will be the max - leave it to the judge and you're at the judge's mercy. My biggest job as a lawyer is to look at my client's facts, the trends in sentencing, the judge who is going to have the power, the prosecutor I will be negotiating with and other intangibles and then first tell my client the chances of walking away by winning at trial, and then to tell him what I think is both likely and - just as important - possible if he loses. I'll typically say that in my opinion you have a chance of x% of no jail time, chance of y% of getting sentenced to two days or z% of four days or w% of 14 days. For most clients there is essentially no chance of 6 months, but if the client had been not just slightly over the legal limit but totally shitfaced with a bad driving record behind him and had passengers in the car with him he scared out of their wits and nearly ran over pedestrians and who was saying that he would never stop drinking and the judge could go f*** himself I'm going to say that 6 months is not out of the question; three months is likely; and the 14 days the prosecutor is offering is a really sweet deal. I need to give both the likelihoods and possibilities so that my client can decide whether the possible gain from going to trial outweighs the possible risks from losing, with gain and risk measured by what is most important to the client.
I also tell my clients that judges like to see people accused of crimes accepting responsibility. A person who admits that he was drunk and driving is more likely to get that zero day sentence; a person who minimizes his conduct is more likely to get 2 days or more to teach the lesson of the value of personal responsibility.
For some clients the deal never gets good enough - those go to trial. For some clients keeping an OUI off the record is priority #1, and for them I see if I can get the district attorney to change the charge to Driving to Endanger (considered a lesser offense) with maybe an extra day of jail. Others want to stay out of jail, and I then don't fight with the State over the charge but the sentence. I tell this kind of client who is thinking of going to trial that there is a theoretical possibility that a judge might give no time at all if he loses at trial and I also tell him when appropriate that that possibility is very very unlikely and that if priority #1 is no jail then best bet is to plead guilty to the OUI for the agreed on deal of no jail time. Give up the chance of walking away without a conviction for the near certainty of staying out of jail by accepting responsibility.
That in a nutshell is the job of someone trying to minimize the damage to a client at risk. In 2011 the client was Ohio State's football program. Its advocate was Gene Smith.
We were not facing a death penalty. That's the full 364 for just an OUI. But some bad things were still a possibility. I have heard it said that a bowl ban had never been handed out for just a Failure To Monitor. Perhaps. But it has been a long time, if ever, since the NCAA had been dealing with a school already on probation where minor and less-minor infractions were rampant, where the coach clearly lied to the NCAA, where the school president knowing about the lies said that he hoped the coach would not fire him, and the AD trying to satisfy the posse he knew was on its way offered . . . essentially nothing. Almost no acceptance of responsibility at all. This was Smith telling the guy who was in deep trouble that he didn't need to worry. Smith may have been working with a possible, perhaps even a likely, but he was not advising his client of a much worse outcome that was very much in the picture.
So. Smith's first question was: is a bowl ban at all possible? The answer on our facts was absolutely YES, regardless of what had been done in the past. The accompanying question is: how likely? That answer is unknown, but definitely more likely than zero%, probably more likely than 33%; quite possibly in the 50% range if not higher.
So what were OSU's risks and needs in this case? Obviously we wanted to be allowed to walk away untouched. That was about what Smith offered and it wasn't happening. At this point let me switch analogies, from the courtroom to the ocean. OSU is a weak swimmer and a shark is approaching. Shore is too far away to escape completely. What do we do? If we let the shark have its will we will not be happy with the outcome. We'd rather not give up a hand but the shark doesn't look all that hungry, it just wants something and maybe a hand will be enough. The hand was a bowl ban of our choice.
If we banned in 2011 our 2011 seniors would lose out on a bowl. The seniors of 2011 included guys who contributed to the problems we were in. It also included Joe Bauserman who had been as loyal a Buckeye as ever put on the Scarlet and Grey - playing behind Pryor, as a senior having his job taken from him and given to a freshman with narry a peep - and no one has ever suggested that the 2011 team deserved a bowl to reward JB. Trying to hold on to a bowl in 2011 was never really about deserving seniors, it was about the possibility of a win and the opportunity for fans who could afford it to get a vacation.
It was also the possibility of a loss. The 2011 team by the end was a train wreck (anyone need to watch the end of Purdue again?). There was nothing to be gained by a bowl game that year. People talk of a *bowl game* as if it is some holy grail. The Taxslayer.com Gator Bowl is nothing OSU aims for. Ever. For a school such as Indiana that is a step forward, but for tOSU? don't kid me. Every year our goal is the NC. Short of that we'll take a BCS game. And even the Capitol One or Outback has some prestige. But are we really arguing the merits for Ohio State of the Taxslayer Bowl? So that we could - and did - end up with a losing record?
I have read one person say that we didn't really know that 2012 would be better than 2011. In the sense that nothing is guaranteed then true. But in the sense of trying to evaluate possibles and likelies it was as close to a guarantee as possible that 2012 would indeed be better than 2011. New good head coach, new good assistant coaches, good players a year older, good coach's new recruits, new attitude and hopes. Maybe not 12-0 better, but competing-for-the-B1G-and-the-Rose-Bowl better was not a smoke dream.
Also, a team that goes bowling gets extra practices. Should those extra practices go to the Fickell-lead 2011 squad or the Meyer-lead 2012 squad? I thought so.
To summarize so far. A bowl ban was more than a remote possibility, it was in the realm of the being-considered. And if we have to give up one bowl 2011 is better than 2012.
Which brings us to the $64,000,000 question: how do we know one game would have been enough? We don't. But I know from experience that offering to accept a sentence with some substance is more likely to satisfy a judge than minimizing what you did when you have some reason to believe that the judge is not happy with your client. And if you take Smith's position that a bowl ban is not likely at all then you have to agree that one game will be enough. One game can not be both too much and too little. In Smith's world it may be too much, but it is not too little.
It has been said that the NCAA hates OSU, or at least wanted to make an example of us. I think this has a bit of paranoia about it. Even for the NCAA the punishment has to fit the crime at least somewhat. An OUI will not get 364 days. Except in the worst cases it will not get 6 months, or even 3 months. You want to avoid being a worst case? accept some responsibility. Self-impose punishment that says the school is taking the matter seriously. Have Gordon Gee grovel. Find other bones to throw. Our facts were bad but they were not PSU bad. The NCAA was happy (so far) with Miami's one-year self-imposed ban. The NCAA was not going to hammer us just for being us - had we done reasonable things the NCAA might have played with the amount of the fine or what we needed to do while on probation but it would not likely increase the big punishment.
What are the risks of self-imposing a 2011 ban? That we might miss 2012 too. In which case we lost something - the Taxslayer and a losing record - that should not have had great value to OSU fans. This is a subjective judgment I know, but I think that a Taxslayer Bowl and a losing record do not give most OSU fans a feeling of accomplishment.
What are the possible gains of a 2011 ban? That it *will* be enough and the 2012 team gets to go bowling. Obviously now that we are 6-0 and with 12-0 and the Rose Bowl if not the NC not out of the question it is easy to say we wish we could play in December or January this year. But we should have been saying that last year. Even if we could only predict improving to 8-4with our rabid fan base 8-4 would probably be good enough for something better than a Taxslayer Bowl and depending on who the losses were to and what else happened in the B1G we might still be in the Rose Bowl. However 2012 played out a bowl this year would be no worse thamn and likely better than the bowl we got in 2011. And the cost of preserving the chance of getting that bowl was a hand if you still think that a Taxslayer in 2011 had value, and less than a hand if you agree with me that that bowl in 2011 was pretty worthless.
And as it happens we are 6-0 and being talked about in the NC conversations had we not been banned this year. Can't argue what we should have done in 2011 based on what we actually are doing in 2012, but still . . .
I have just presented my case for Gene Smith as grossly negligent in representing OSU's interests. No debate is iron-tight, arguments can be made on the other side.
Defenders of Gene Smith, the floor is yours. If you want to argue precedent give the sanctions imposed and the significant facts.
