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ESPN needs to get a better legal expert

Apr 14, 2011, 2:31 PM EDT

lawsuit gavel

I have no personal quarrel with ESPN’s Lester Munson. I don’t know his background or his specific area of expertise. I know that when he is asked to explain to lay people the general gist of any legal issue that touches sports he tends to do an OK job.  He’s good at the “OK, what happens next” part of things, which is probably the thing sports fans want to know.  I’ve dabbled in legal expertise business before, and that’s about 95% of the gig.

I do know, however, that he is most visibly promoted by ESPN when it comes to steroids in baseball stories, and I know that whenever he has been called to go beyond the “what happens next” aspect of that business, he has often gotten things pretty wrong.

The most notable instance I can remember of him stone cold whiffing was when the Barry Bonds prosecutors lost some preliminary evidentiary rulings a couple of years ago and took an appeal.  I won’t bore you with the details, but the basis of the prosecution’s argument was an evidence concept called “the residual exception.”  The important thing to know about the residual exception is that if you have to argue that your evidence is admissible on that basis, you’re screwed, dude. Almost every single person with a legal background knew that the prosecutors were screwed there too. But not Munson, who claimed “their chances are good” and otherwise gave them a tongue-bathing while slamming Judge Illston.  He was wrong.

So color me unsurprised this morning when Munson’s column analyzing the Bonds verdict came out and it was filled with praise for the prosecution on a “major triumph,” and said that the defense “went 0 for 4” despite getting three hung juries, including one involving Bonds lying about steroids.  I suppose reasonable people can disagree about whether the prosecution can declare a victory of some kind, but Munson’s hyperbole and reasoning is so far removed from common sense and reality that I almost got an attack of vertigo trying to wrap my brain around it.

Thankfully some others took it down:  Wendy, at the Hanging Sliders blog, simply eviscerates Munson’s arguments.  The point-by-point takedown is what you should really read, but the conclusion pretty much covers it:

I don’t know Munson nor do I know anything about his law practice. But I suggest that if you are suspected of committing a crime, you should hire an attorney who understands criminal, evidentiary and constitutional law better than Lester Munson apparently does.

Elie Mystal at the inimitable Above the Law blog goes after Munson too, and suffers from the same sort of vertigo that struck me, only with more F-words.

I don’t know what Munson’s deal is. At some point several years ago he fell in love with the prosecution’s case and hasn’t been able to see it objectively for some time.  Or maybe he’s  just out of his depth with this stuff.  All I know for sure is that, given how often sports and law intersect these days, the self-proclaimed World Wide Leader in Sports should find someone who knows what the hell they’re talking about with this stuff.

  1. sdelmonte - Apr 14, 2011 at 2:40 PM

    It could just be the anti-steroid bias. He’s caught up in the witchhunt mentality that has underscored this and other prosecutions. And can’t see anything but the witch.

    • Jack Marshall - Apr 14, 2011 at 2:45 PM

      Note: Witches were imaginary. Steroid cheaters are not.

      • Kevin S. - Apr 14, 2011 at 5:41 PM

        Note: Bonds was not on trial for steroids.

  2. itsacurse - Apr 14, 2011 at 2:44 PM

    But then they wouldn’t be best pals with any of the players who have legal issues!

  3. BC - Apr 14, 2011 at 2:45 PM

    Munson seems like a smart guy, but he’s 137 years old. What happened to Roger Cossack? He seemed pretty sharp.

  4. madhatsam - Apr 14, 2011 at 2:53 PM

    Roger Cossack, another ESPN Legal analyst, had the complete opposite take of Munson on Mike & Mike this morning, shame Munson seems to get more exposure though.

  5. bigxrob - Apr 14, 2011 at 2:54 PM

    ESPN needs to get a better everything

  6. umrguy42 - Apr 14, 2011 at 3:03 PM

    On a tangential basis… what’s with lawyers becoming sports bloggers? You, Craig, Florio over at PFT, Wendy there in your link…

    • lbehrendt - Apr 14, 2011 at 3:05 PM

      Short answer: relative amounts of fun.

      • marinersnate - Apr 15, 2011 at 2:07 AM

        Or long(er) answer. They were all really, really “good” lawyers.

  7. jnvh - Apr 14, 2011 at 3:07 PM

    Cynicism time: ESPN producers told Munson to “declare victory” for the prosecution so they could dovetail their narrative of the case with the public’s general desire to see Bonds go down, and to keep their viewers in agreement (and therefore pleased) with ESPN’s coverage.

    • madhatsam - Apr 14, 2011 at 3:11 PM

      That would make me sad if it wasn’t so plausible and in line with what ESPN tends to do.

  8. lbehrendt - Apr 14, 2011 at 3:12 PM

    Munson’s column was one for the ages. He should have included the usual caveat that nothing in his column should be construed as legal advice, because if his column WAS legal advice, some of it borders on legal malpractice. For example, Munson stated thusly:

    “Any citizen who is caught up in a federal investigation is obligated to tell the truth when federal agents show up to ask questions.”

    Um. That’s not right. First, there’s a little matter of the Fifth Amendment right against self-incrimination. Second, even if the Fifth Amendment is not involved, U.S. citizens are not required to cooperate with law enforcement. You can’t impede law enforcement, but you don’t have to cooperate.

    Once they put you under oath, things change: you still have Fifth Amendment protection, but absent the Fifth, you have to tell the truth, not be evasive and so on.

  9. micker716 - Apr 14, 2011 at 3:14 PM

    Munson’s views may have been colored by his “love” for the prosecution’s case, but I’m starting to think your obsession with the decision has been colored by your contempt for their case.

  10. kmgannon - Apr 14, 2011 at 3:28 PM

    George Dohrmann on Si.Com has been my go-to legal expert for the Bonds trial. Even-handed and analytical.

  11. oldfanpres - Apr 14, 2011 at 3:30 PM

    The best thing to come of all this is that Bonds–holder of the “records” for HRs in season et al, will not make it into the Hall of Fame in this generation, at least. Maybe years from now his reputation will have been made indistinct by time and he’ll get in on a Veteran’s pick. But–thank goodness–not in my lifetime.

  12. scatterbrian - Apr 14, 2011 at 3:49 PM

    “…that I almost got an attack of vertigo trying to wrap my brain around it.”


  13. banksatdixie - Apr 14, 2011 at 4:21 PM

    I’d rather be in jail than Munsoned out here all alone.

  14. stevejeltzjehricurl - Apr 14, 2011 at 4:57 PM

    Craig, you may want to check this link out — looks like Munson was full of even more crap back during the Duke lacrosse case:

    Not sure how Munson got hired with that track record, or how he continues to get hired.

    To be fair to ESPN, Cossack’s coverage and commentary is generally pretty good. He gives his opinion without pretending its fact, while also providing cogent analysis of what’s taking place and why.

  15. kchoya - Apr 14, 2011 at 5:55 PM

    Munson also seems to have a strong dislike for the judge on the case, which comes through in this recent piece:

  16. Lukehart80 - Apr 14, 2011 at 6:04 PM

    Thanks for linking to those other take downs, which I would not have otherwise seen. I’m no lawyer, but Munson’s take just seemed… off, somehow. I’m glad to see I’m not the only one.

  17. motherscratcher23 - Apr 14, 2011 at 8:29 PM

    I would recommend William Kunstler or Ron Kuby.

  18. chrisny3 - Apr 14, 2011 at 10:17 PM

    The hyperbole, exaggeration and misleading statements about legal principles which Munson may be prone to is not too different from the way some Barry Bonds apologists have been writing about the case from their point of view for the last few years. And it doesn’t obscure the fact that the government did come out the winner here. Was it a big win? Maybe not. It was more a limited victory, but a victory nonetheless.

    Also, I’m not too impressed by the critique of Munson by Wendy the blogger who — surprise, surprise — used to work with one of the lead defense attorneys in the case. She basically attacked Munson on his use of hyperbole and played legal semantical games with his prose. All her nitpicking couldn’t hide the fact that Bonds lost. Bonds is now a convicted felon and will never get into the HOF.

    • Craig Calcaterra - Apr 14, 2011 at 10:35 PM

      Chris. For once in your life, admit that you’re out of your depth. Wendy’s critique of Munson was, if anything, light. Munson’s take, if transformed into legal advice (don’t file motions in limine; be sure to talk with a federal agent if they start questioning you) is malpractice.

      • lbehrendt - Apr 15, 2011 at 1:27 AM

        Chris, Craig could not be more right on this point. Wendy’s critique was dead on, and if anything not as cutting as it might have been.

      • aaronmoreno - Apr 15, 2011 at 2:22 AM

        Even further, these mistakes aren’t on subjects where you need to be a veteran trial attorney. Law students and baby lawyers generally know better than to stake a case on the residual exception, or that there is a thing called the Fifth Amendment.

        Hell, the law kids I met who thought Bonds would lose pretty much based it on the Fed’s conviction rate, not on that strength of the case.

      • chrisny3 - Apr 15, 2011 at 9:17 AM

        Craig (and ibehrendt and aaron):

        Munson is no longer a practicing lawyer. And he doesn’t write in that capacity when he writes his ESPN columns. Nor do I think anyone is reading his columns for legal advice. He is merely a writer on a sports website opining on legal and investigative issues which impact sports. I very well understand his error about fifth amendment rights (hence my reference to “misleading statements about legal principles”). And I’m not referring to Wendy’s arguments about motions in limine. What I was primarily criticizing Wendy over was her harping about essentially small stuff and Munson’s use of hyperbole. Those arguments amount to no more than semantical games.

        For example – she begins her little rant by going off on Munson’s use of the term “major victory” and goes so far as to describe the trial outcome as instead an “embarrassment” for the prosecution. Here, she is using her own hyperbole to critique’s Munson’s hyperbole. Most people have characterized this as a prosecution victory, even if limited, so it appears Munson was right on that. So what you have left is Wendy arguing over the word “major” which isn’t even a legal or relevant issue here; it’s merely Munson’s own subjective hyperbolic opinion. Wendy gets her panties in a bunch over Munson’s use of an adjective! Does anyone really care or does it really matter whether it was a “major” or “minor” victory?

        Then she takes issue with Munson saying the defense was not victorious on any of the counts. Unless you consider a hung jury a “victory” then she is wrong. The best you can say is no one won on the perjury counts but the government won on the obstruction count. But regardless, how one wants to paint the outcome is subjective at this point. Arguing over whether the defense went 0 for 4 or 3 for 4 is silly and she stoops to Munson’s level for obsessing over a tally count. Because bottom line, Bonds was found guilty on at least one count, is now a convicted felon, and the conviction and prosecutorial process itself are enough to have sent the intended message to the general population about the need to preserve integrity in the GJ process … as well as to have forever tarnished Bonds’ legacy and chances of ever making the HOF. Cut through all the smoke … he lost.

        So, Wendy blew a lot of smoke because essentially, when all is said and done, Munson was right in that the government won here. Which is the most important point in his column. As I said, I don’t think it was a big victory but it was nonetheless a victory.

        By coming off sounding like a sore loser, Wendy unintentionally gives weight to Munson’s argument that the feds won here. I think she would have been better off limiting her critique of Munson to the strictly legal issues instead of veering off into parts of Munson’s column which were essentially subjective opinion. She had valid legal concerns with his column but came off like a petty whiner.

      • Craig Calcaterra - Apr 15, 2011 at 9:29 AM

        “Unless you consider a hung jury a “victory” then she is wrong.”

        I think you will find that every single criminal defense attorney you talk to would consider a hung jury a victory. The prosecution is trying to put the defendant in jail. A hung jury prevents that. It may not be as complete and thorough a victory as an acquittal, but it is most definitely a victory.

        And I’m sorry, I don’t care what Munson’s current status is. He’s being asked to provide insight form the perspective of a legal expert. When he says things that are demonstrably false about the practice of law, he is failing at his job.

      • chrisny3 - Apr 15, 2011 at 10:14 AM

        Since the defendant is often tried again, and often convicted the second time around, and incurs more hefty legal and emotional expenses being tried again, I fail to see how a hung jury is a “victory.” It’s a stalemate or indecision at best … and neither a victory or a loss. Regardless, the fact that there was a conviction on a single felony count in this case makes the victory-loss-tally argument pretty pointless and petty I think. Which was my point regarding Wendy.

        Munson was wrong about citizens speaking to the government, but it wasn’t a major point of the article and he likely is not the first “legal analyst” to have incorrectly portrayed our legal system or individual rights. At any rate, if you agree with the verdict, you can get past his error. If you don’t like the verdict, you won’t get past it.

      • Joe - Apr 15, 2011 at 10:30 AM

        Are you kidding me? I took one law class in my life, more than 20 years ago, and all I remember about it is that the instructor was incredibly dull and used the word “tort” on occasion – and even I know that you aren’t _required_ to tell all to investigators when they start knocking on your door. Any “legal expert” who would “incorrectly portray” that point simply can’t be considered an expert. That’s “four strikes and you’re out” territory.

  19. kchoya - Apr 15, 2011 at 1:45 PM

    “Since the defendant is often tried again, and often convicted the second time around, and incurs more hefty legal and emotional expenses being tried again, I fail to see how a hung jury is a “victory.” It’s a stalemate or indecision at best … and neither a victory or a loss.”

    Really? You have no idea what you’re talking about chrisny3, so just give up while you can.

    • Kevin S. - Apr 15, 2011 at 2:59 PM

      Having no idea what he’s talking about has *never* induced chrisny3 to give up while he can. Expect more chest-puffing and declarations that every other person arguing with him is misinformed or wrong, regardless of their backgrounds or expertise.

      • chrisny3 - Apr 16, 2011 at 3:57 PM

        So says the man who just the other day declared the spitball was banned because it was deemed a dangerous pitch. LOL.

    • cggarb - Apr 15, 2011 at 4:27 PM

      Co-sign. Barry Bonds was facing multiple charges, including perjury. He was convicted of one less-serious charge. He has better-than-usual arguments for overturning that conviction at either the trial level or on appeal.

      The government is almost certainly not going to go through the expense of a retrial on this charge. Barry Bonds is the “winner” of this trial. It’s not an unqualified win, but I guarantee that the defense lawyers are happier than the prosecution lawyers about the verdict.

      Anyone who argues to the contrary is making a foolish argument, whether they gab on TV or post here.

    • chrisny3 - Apr 16, 2011 at 3:55 PM

      “Really? You have no idea what you’re talking about chrisny3, so just give up while you can.”

      Oh really? Why don’t you enlighten us as to how anything I said about a hung jury is not true, kchoya.

    • chrisny3 - Apr 18, 2011 at 3:59 PM

      No answer, kchoya? Not too surprised. Seems clear to me who has no idea what they are talking about.

      • kchoya - Apr 18, 2011 at 4:15 PM

        Really? You check in two days later to see if you got a reply? What a troll.

        1. The defendant is not “often tried again.” How many of your clients, for whom you secured a mistrial, were tried again?

        2. “often convicted the second time around.” Really? Let’s see your evidence instead of pulling stuff out your ass. My experience tells me otherwise.

        3. Ask any defense attorney or any defendant if they think a mistrial is a victory or not. I know what 99 out of 100 will say. Tell me how Barry Bonds loses by securing a mistrial?

      • chrisny3 - Apr 18, 2011 at 4:44 PM


        1) I checked in specifically to call you out as a troll since you made a criticism which you wouldn’t explain when asked to do so. That is the very behavior of a troll. I already knew you hadn’t replied so no need to check in for that.

        2) “Often” is an indeterminate amount. The fact is many defendants ARE tried again. I am right on this.

        3) Again, “often” is an indeterminate amount. So I am right that defendants are often convicted the second time around.

        4) I have talked to two defense attorneys about the Bonds verdict. They agree with me. The jury being hung on 3 of the charges is neither a victory or loss for either side. And overall, it definitely is not a victory for the defense since he was convicted on one of the charges. If you want to believe it was a victory, knock yourself out. I’m sure even Bonds disagrees with you.

      • chrisny3 - Apr 18, 2011 at 4:49 PM

        “Tell me how Barry Bonds loses by securing a mistrial?”

        Tell me how still being in legal jeopardy for additional felony charges — while incurring additional exorbitant legal fees — versus getting a clean acquittal is NOT a loss?

      • kchoya - Apr 18, 2011 at 4:56 PM

        “Tell me how still being in legal jeopardy for additional felony charges — while incurring additional exorbitant legal fees — versus getting a clean acquittal is NOT a loss?”

        You know what? If Barry Bonds had be declared not guilty on every single one of the counts brought against him, he’d still be in jeopardy of facing additional felony charges. Is a not guilty verdict better than a mistrial? Yes. No one is arguing that. Nor was that your point. You were arguing a mistrial is a loss, which most of the attorneys I know would disagree with.

        And BTW, I’m guessing Barry can afford the “exorbitant legal fees” you keep bringing up.

      • chrisny3 - Apr 19, 2011 at 1:14 PM

        “If Barry Bonds had be declared not guilty on every single one of the counts brought against him, he’d still be in jeopardy of facing additional felony charges.”

        Huh? Explain that one. This will be interesting.

        “You were arguing a mistrial is a loss, which most of the attorneys I know would disagree with.”

        LOL, either you can’t read and have poor reading comprehension, or you simply think everyone else is stupid and can’t read and comprehend English. In either case, I hope for your sake you don’t read your legal briefs the way you’re reading these comments.

        Go back to my original statement about a hung jury — the very same statement you quoted and initially took issue with. I quote: “It’s a stalemate or indecision at best … and neither a victory or a loss.”

        So I ask you, what part of “neither a victory or loss” don’t you understand?

      • chrisny3 - Apr 19, 2011 at 1:19 PM

        And, BTW, I’m sure Bonds can afford additional exorbitant legal fees as well. The question is whether or not it pains him to keep paying hefty legal fees when a “not guilty” on all counts would have put an end to those expenses.

  20. cggarb - Apr 15, 2011 at 4:31 PM

    Lester Munson, “Chicago Lawyer”

    Though he’s not currently permitted to practice due to failure to complete CLE requirements:

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