Safety is Paramount!

Image result for rae carruthIn 1999, first round NFL draft pick Rae Carruth hired a hitman to kill his then-pregnant girlfriend to avoid paying child support. Although she didn’t die at the time, she later died after giving birth from complications of the attempted murder. A son was born with cerebral palsy as a result of trauma he suffered from the shooting. Carruth was found guilty of conspiring to murder the son’s mother in 2001, and sentenced to serve nearly 19 years in prison. He is scheduled to be released October 18, 2018.

Last month, Carruth expressed his remorse for the killing and his intent to seek custody of his son. But is he even “fit” to care for his disabled son? Texas law says no! Texas law public policy dictates that child custody decisions should be made based on the child’s best interest. A disability adds a special consideration to the already substantial weight of best interest. That consideration is the safety of the disabled child.

When looking to the best interest of a child, courts have traditionally considered about 9 factors announced in Holley v. Adams, 544 S.W.2d 367 (Tex. 1976). However, the best interest of a child could literally mean anything and everything. For this case with Rae Carruth seeking custody of his disabled son, the primary consideration here should be the concern for the safety of the child. Under Texas law, Carruth would be subject to involuntary termination of his parental rights under 161.001(b)(1)(T)(i) because he was convicted of murdering the child’s mother.

The fact that his rights would be subject to termination defeats his argument for gaining custody of his son. Further, from a best interest of the child standpoint, would it ever be in the best interest to place a child with the parent who is responsible for the death of the other parent? I say that it would not be. There are three factors in particular that would defeat any attempt by Carruth to establish that it is in the best interest of his son to be place with him. Those factors are: (1) the emotional and physical needs of the child now and in the future, (2) the emotional and physical danger to the child now and in the future, and (3) the stability of the home or proposed placement. The child’s emotional wellbeing would significantly be impaired by being placed with his father and it could create a really dangerous precedent in the law. This child should not be subjected to a constant reminder of the person who murdered his mother. This consideration goes hand and hand with the concern of his physical wellbeing. It has been established that the cause of the child’s disability was caused by the father’s actions. The child suffered an immense strain during his mother’s pregnancy when his father attempted to murder his mother. None of these circumstances point to a placement with Rae Carruth being in the best interest of his son. Lastly, there is a good chance that the father’s home will not be a stable place for the child. Carruth is currently serving a jail sentence for his role in the death of the son’s mother. He literally hired a hit man to kill her because she did not obey his wishes to terminate the pregnancy that resulted in his son. In my opinion, an individual that would go to such lengths is not a very stable person. The child would likely suffer immensely in the home of such an unstable person. Therefore, it would be contrary to the best interest of the son to be placed with Carruth.

Rae Carruth should not be allowed to seek custody of his son. Although this case will likely be heard under North Carolina law, reviewing it under a Texas Law standard,  Rae Carruth’s parental rights would have likely already been terminated. Further, it is contrary to the best interest of the child to place him with his father. Rae Carruth’s request should be denied.

Image result for rae carruth

Written by: Kourtney Malone-Parker

It’s An Unjust World After All: The Legal Analysis to Innocent Until Proven Guilty? Not in the NFL.

Background: It can probably be ascertained by the title that this blog post is a follow up from an earlier post. Before writing this post Liz and I had a discussion about the case. Liz was firmly of the opinion that Ezekiel Elliot was wronged and the suspension was, for lack of a better word, bogus. Her opinion didn’t reach the merits of the case, rather it ridiculed the way the NFL went about the investigation that led up to Elliott’s suspension. I, however, was not easily persuaded. I have a big advocate for domestic violence and found it hard to take Elliot’s story as truth. So, like any lawyer or law student, I delve into the facts and conducted approximately two weeks of research. I combed through articles, read opinions, and watched videos on the subject. My opinion changed only slightly. However, looking at the investigation, from the Ohio prosecutor to the NFL, it was plagued with injustice. By the end, I had to agree with Liz. Not for the merits but for the injustice and truly appalling nature of the investigation.

We own no rights to this photo. Provided by Google.

In recent weeks Ezekiel Elliot, running back for the Dallas Cowboys, has gone through litigation over being accused of committing domestic violence against an alleged ex-girlfriend last year in Ohio. Ironically, the Ohio prosecutor and law enforcement officials decided not to criminally prosecute Elliot due to the “conflicting and inconsistent information across all incidents.” Shocking to some and unsurprising to others, the National Football League (NFL) mounted an investigation and sentenced Elliot to a six-game suspension. Elliot appealed the NFL’s decision to an arbitrator. The arbitrator ruled in favor of the NFL. Elliot appealed the ruling to the United States District Court in the Eastern District of Texas, Sherman Division. In the appeal, Elliot argued the fairness of the arbitration hearing, and asked the court to determine whether Elliot received a fundamentally fair arbitration hearing. The merits of the case, which would determine whether there was credible evidence of domestic abuse, were not addressed to the court. Interestingly enough, whether you feel that suspension was warranted or not, there is a stench of injustice that seeps out of the NFL investigation and the arbitration.

We own no rights to this photo. Provided by Google.

When the NFL mounted its investigation they enlisted Kia Roberts, Director of Investigations, and Lisa Friel, Senior Vice President and Special Counsel for Investigations, to preside over the investigation. Roberts and Friel assembled the NFL Investigation Report (“Report”). Roberts’ role in the investigation was to speak with various witnesses, including interviewing the accuser and accused and reviewing some of the documentary evidence. Roberts interviewed Elliot and the accuser and claims that Friel took more of a supervisory role. Friel stated that she interviewed the two doctors and Elliot. However, Friel admits that the she never interviewed the accuser. At the end of the investigation Roberts and Friel compiled their reports. Each, Friel and Roberts, developed an opinion on the evidence and the credibility of the witnesses. Roberts’ opinion was that there was insufficient evidence to corroborate the allegations of the accuser. Roberts communicated the opinion to Friel. However, Friel concluded that there was sufficient evidence to corroborate the allegations. Suspiciously, in a departure of past investigations, neither opinion from Friel or Roberts were included in the report. Friel, surprisingly, with counsel and with not Roberts, made the joint decision to exclude the opinions from the report.

After Commissioner Goodell received the Report, he met with NFL personnel, including Friel, but uncharacteristically excluded Roberts. During this meeting, Friel communicated her opinions. However, Roberts’ opinions were, plainly stated, not shared. It would be safe to say that Roberts’ crucial and contradictory opinion was not shared with the Commissioner Goodell or his advisors.

While preparing for the arbitration, Elliot and his counsel requested that the arbitrator, Harold Henderson, order the NFL to provide the accuser for cross-examination, along with the investigative notes. Henderson denied the request, stating, “the commissioner’s decision in the case was based on affidavits, statements, and interview reports, all available to Mr. Elliot.” Additionally, Elliot’s legal team asked Henderson to order the NFL to provide Roberts to testify about his opinion and investigation, which was granted. After a three-day arbitration, Henderson concluded that the suspension should be upheld. It is curious that the arbitrator would deny a motion that is so pertinent to the arbitration. Under the law, arbitrators must ensure that each party has all relevant documentary evidenceSee Universial Comput. Sys., Inc. v. Big Bell 21, LLC, No.13-cv-00702, 2014 WL 12603178, at *4 (S.D. Tex. Jan. 29, 2014) (emphasis added). While arbitrators do have discretion to the denial of witnesses and documents, it is hard to make a logical argument when key witnesses and documents are intentionally left out. What this basically amounts to is signing up for a class, but not being given the book the teacher is using to teach the class.

We own no rights to this photo. Provided by Google.

As it stands, not looking to whether he did it or not, we have to ask ourselves whether justice was served? In my opinion, and that of Judge Mazzant, it was not. I do not go as far as to say that my opinion on the merits of the case and the facts contained in the report are in line with Elliot or the NFL. I merely state that the fairness that must be provided within arbitration failed. I agree with the court in their decision to grant the injunction because Elliot was denied a fundamentally fair hearing by Henderson’s refusal to allow the accuser and Goodell to testify at the arbitration hearing. Elliot is free to play until the court system works through this issue. The NFL believes that it will find favor in the circuit court because of the favor they received in the “de-flate gate” scandal, however, Judge Mazzant distinguished Brady I and Brady II by highlighting the fact that the evidence and testimony precluded was not material, pertinent or critically important. These facts suggest that favor in the circuit court could be hard fought and not as simple as the NFL may think. For now, Elliot plays and it looks like he will continue to play the entire season, and the NFL may have an uphill battle to uphold the suspension.

By: Jourdan J. Dukes

For More Information about the Clinic, Click Here.

Innocent Until Proven Guilty? Not in the NFL.

On August 11, 2017, Dallas Cowboys fans were shocked when their star running back, Ezekiel “Zeke” Elliot, was suspended for six games due to a domestic violence altercation that occurred between him and then-girlfriend, Thompson, in July 2016. While the NFL has previously stated that a six game suspension is the baseline punishment for a player’s act of domestic violence, this steep of a punishment has only been upheld in two of nine reports of domestic violence in recent years. These lesser punishments were inflicted upon players who were found guilty of charges such as Andrew Quarless firing a gun into the air after an argument (two game suspension) or Jonathan Dwyer head-butting his wife and breaking her nose (three game suspension).

Three separate altercations, which occurred in Columbus, Ohio, were cited by the NFL as contributing to Zeke’s suspension. The first altercation took place on July 17, 2016, where he allegedly used physical force causing injuries to Thompson’s arms, neck, and shoulders. The second took place on July 19, 2016, which allegedly resulted in injuries to Thompson’s face, arms, wrists, and hands. The third and final altercation, resulting in injuries to Thompson’s face, neck, arms, knee, and hips, allegedly took place on July 21, 2016. The only evidence against Zeke comes from Thompson, those who interviewed her about the incidents, and those who examined her injuries after the incidents.

The NFL’s letter to Zeke regarding his suspension repeatedly stated that the injuries “appear recent and consistent with Ms. Thompson’s description of the incident and how they occurred.” However, there were no other witnesses to any of the incidents. The letter, signed by B. Todd Jones, Chief Disciplinary Officer of the NFL, goes on to say that the NFL’s investigators believed Thompson’s count of all of the incidents and never felt that Thompson was lying to them in their many interviews with her.

None of the incidents led to Zeke’s arrest. In fact, the Columbus Police Department chose not to pursue a criminal prosecution against Zeke. In a statement on the matter, the department said it did not pursue charges against Zeke because of “conflicting and inconsistent investigation.” However, the NFL’s Personal Conduct Policy specifically states that “actual or threatened physical violence against another person” is expressly prohibited. The policy also says that NFL players are held to a higher standard, noting that “[i]t is not enough simply to avoid being found guilty of a crime.” While the NFL has every right to heighten the standard of their players’ behavior, is it just for Zeke to be punished for something that there is no legal proof actually occurred?

This NFL organization holds their players to a higher standard due in great part to their fans. Football is America’s sport, with millions tuning in to watch NFL games each week. The decisions made by the disciplinary authorities are scrutinized by the fans who tune to watch their favorite players compete. Further, young children look up to the players in the NFL as heroes and role models. What kind of example does domestic violence set for the young viewers?

On the other end, Zeke’s suspension appears to be more severe than many cases of domestic violence in the NFL that have occurred over the past couple of years. For instance, former New York Giants kicker, Josh Brown, admitted to beating his wife and was suspended for only one game. (On appeal, Brown was given a six game suspension). Ray Rice, former running back for the Baltimore Ravens, committed domestic violence on video, which resulted in only a four game suspension. Thus, many see Zeke’s punishment as unfair. What example does it set for the fans that their role models can be punished for something they took no part in? While domestic violence is a serious issue in our society, so is punishing someone without proof of their crime.

B. Todd Jones stated in Zeke’s suspension letter that there is simply no evidence that another person could have committed the acts of violence towards Thompson. However, the legal world recognizes that one is innocent until proven guilty. Zeke has yet to be found guilty of domestic violence against Thompson. His suspension is more severe than many proven cases of domestic violence committed by NFL players in the past, leading many to wonder if maybe the NFL is trying to crack down on their players and use Zeke as an example? Zeke has not admitted to committing these acts of violence, nor has a video surfaced of him committing them, so why is his suspension more severe than players who have previously been found guilty of committing domestic violence?

Zeke and his lawyers responded to his suspension by appealing it. Harold Henderson, the NFL’s designated arbitrator, took on the task of determining whether or not the NFL made the right call. In the end Henderson upheld Zeke’s six game suspension. Upon the decision, made on Tuesday, September 5, Zeke’s legal team released a statement saying that the “only just decision was to overturn the suspension in its entirety” and added Zeke “was the victim of a conspiracy orchestrated by the National Football League and its officers to keep exonerating evidence from the decision makers…” However, Zeke and his legal team were not going to admit defeat that easily.

Before Henderson had made his final decision on the appeal, Zeke sued the NFL, seeking a temporary restraining order or preliminary injunction. If granted, the temporary restraining order would prevent the enforcement of Henderson’s ruling. On Friday, September 8, United States District Judge Amos Mazzant III granted Zeke’s preliminary injunction, stating that he “did not receive a fundamentally fair hearing, necessitating the Court to grant the request…” Thus, the Judge’s decision was not based on any of the domestic violence allegations at all, but based on the process that the NFL chose in their pursue against Zeke.

As a result, Zeke played in the season opener on Sunday, September 10. With Zeke’s skills, the Dallas Cowboys defeated the New York Giants 19-3. Due to the preliminary injunction, Zeke will have the opportunity to play this season until the matter is moved through the Court system. While Zeke’s legal team sees this as an ultimate success, it could mean that Zeke has to serve his suspension at a later date. However, Judge Mazzant’s ruling shows that the NFL did not give Zeke the “fundamentally fair hearing” that he was owed. The final decision on Zeke’s suspension will likely be widely criticized by fans on both sides, but the granting of his preliminary injunction is seen as a vital step towards achieving the fair investigation Zeke deserves.

By: Liz Feeney

Liz Feeney is a 3L student attorney/chief counsel in the SMU VanSickle Family Law Clinic.