TECHNOLOGY

THE CASE FOR THE DEFENCE

Edward L. Greenspan,George Jonas October 19 1987
TECHNOLOGY

THE CASE FOR THE DEFENCE

Edward L. Greenspan,George Jonas October 19 1987

THE CASE FOR THE DEFENCE

By Edward L. Greenspan And George Jonas

Edward Greenspan, 43, of Toronto is Canada ’s best-known and most controversial criminal lawyer. One of his most celebrated clients was Chatham, Ont.-born major-league pitcher and Cy Young Award-winner Ferguson Jenkins, accused of a narcotics offence in 1980. Jenkins, 43, is now retired from baseball and lives in Blenheim, Ont., six kilometres from Chatham, where he manages his 97-acre beef cattle farm. In this exclusive excerpt from Greenspan’s memoirs, Greenspan: The Case for the Defence, written with Toronto author George Jonas and published this week, Greenspan recounts the Jenkins affair from his unique insider position:

Fergie Jenkins is one of my heroes. He was among the greatest pitchers in the history of major-league baseball—a rare Canadian star in this all-American game. In August, 1980, Jenkins had more than 240 victories under his belt. He was on his way to having a genuine shot at winning 300 games—which would effectively guarantee his admission to baseball’s Hall of Fame among the likes of Babe Ruth and Ty Cobb. Representing someone like Jenkins brought me close to the realization of one of my oldest childhood fantasies.

On Aug. 24, 1980, the Texas Rangers took a charter flight from the Dallas-Fort Worth airport to Toronto. When the plane landed there a few minutes after 11 p.m., the members of the team picked up their luggage—but a few pieces had been mislaid. After waiting around for awhile, those members of the club whose luggage was missing had to board the bus without their suitcases. Fergie Jenkins was one of them.

Bags being misplaced at airports is a common nuisance. In Toronto, when such unclaimed luggage is eventually found, the usual practice is to hand it over to Canada Customs. The customs people then open and examine all such luggage as a matter of routine. Canada Customs opened Ferguson Jenkins’s luggage the next day and discovered a very small amount—three grams—of cocaine, along with similarly small amounts of hashish and marijuana. (The street value of the total was eventually estimated at $500.) Two RCMP officers picked Jenkins up at Exhibition Stadium before 1 p.m., just as the game was about to begin. Jenkins’s hotel room had already been ransacked. At the airport, where he was taken next, Fergie told the officers that the luggage and the drugs found in it belonged to him.

Technically, since his flight originated in the United States, Jenkins could have been charged with importing narcotics, but there was no real danger that he would be. A

From GREENSPAN: The Case for the Defence by Edward L. Greenspan and George Jonas, copyright ® 1987 Macmillan of Canada.

charge of importing—with its draconian minimum penalty of seven years’ imprisonment—is never laid against any person for such a minuscule quantity of drugs. The authorities may, however, as a kind of compromise, charge someone with possession for the purpose of trafficking even when the quantities involved—such as three grams—make it evident that the person could only have been bringing the drug into Canada for his own use.

My first task was to make sure that he would not have to face the totally unwarranted charge of possessing $500 worth of drugs for trafficking. Assuming we could get the Crown’s agreement to that, it was equally vital that the prosecution should proceed against Jenkins by way of summary conviction rather than by indictment. That is always the Crown’s choice in the case of such hybrid offences as possession of drugs, and I had to make sure within the first 24 hours that the prosecutor would make the right choice.

The difference was highly significant in the case of someone like Jenkins, a Canadian whose work in major-league baseball made it necessary for him to be able to enter the United States.

It was one of the quirks of American immigration law that exactly the same offence, in this case possession of three grams of cocaine, would make Jenkins excludable from the United States if the Crown proceeded against him by way of indictment in this country, but not excludable if the Crown elected to proceed by way of summary conviction.

For the Crown to proceed by way of summary conviction would still not have been enough to remove Jenkins from possible repercussions from the American immigration authorities. The maximum penalty for a first offence of simple possession in Canada was six months’ imprisonment, a $1,000 fine, or both. In practice, virtually no one was sentenced to prison for a first offence, but a judge might wish to make an example of someone with a $1,000 fine. To qualify as a misdemeanor for U.S. immigration, a fine could not exceed $500.

What made it urgent to settle the question of the charge within 24 hours was that baseball in America is a serious and sensitive business. Keeping the sport clean is one of the preoccupations of the office of the commissioner of baseball. There was reason to fear that the baseball authorities might bring immediate sanctions against any player accused of a felony—just accused, never mind convicted. The baseball authorities had to see that what Jenkins was being charged with was only a misdemeanor at worst.

For Ferguson Jenkins, 36 years old at the time, the difference could mean being able or not being able to play two or

three more full seasons of major-league baseball. In financial terms, that difference could have amounted to well over $1 million, taking increments into account. More importantly, it could have meant the difference between having or not having a shot at 300 victories. The greatest Canadian player of all time had a lot at stake for having been found with three grams of cocaine in his luggage.

Like any other bargaining process, plea negotiations involve asking for something and offering something in exchange. In one sense, the bargaining is usually initiated by the police and the Crown. They often begin by laying a charge against an accused that is far more severe than the offence on which they wish to secure an eventual conviction (or far more severe than can really be supported by the facts

and the evidence in a given case). That is the legal equivalent of an asking price.

What I could offer the Crown attorney, Ivan Bloom, was that the defence, after entering a plea of not guilty, would agree to a set of facts. They would include the fact that the three grams of cocaine were in the luggage of Fergie Jenkins and that he had admitted to the RCMP that the drug belonged to him. Not contesting this, in spite of our not-guilty plea, would almost certainly result in a finding of guilt on a charge of possession. That was accepted by the Crown. In exchange, Bloom agreed to charge Jenkins with simple possesion only and also to proceed by way of summary conviction against him. He would not, however, agree on a penalty (except for acknowledging that the offence did not call for a jail term). When it came to sentencing, the Crown would push for the maximum $1,000 fine.

That still meant that Ferguson Jenkins’s career would remain in jeopardy. For him, a fine of $1,000 could mean a million-dollar fine. It would also put an immensely gifted athlete’s entire life of blameless behavior and extraordinary efforts at risk for what was, at worst, one isolated lapse of judgment. Because of the politics, money and social significance of major-league baseball in America, Jenkins was beginning to face grave consequences right after the charges were laid against him and long before his trial began. Within six days of his arrest in Toronto he was being called to an interview with Henry A. Fitzgibbon, director of security for Bowie Kuhn, the all-powerful commissioner of baseball in the United States. I flew to New York.

I could not believe my ears when I heard Fitzgibbon outlining the main questions that Kuhn expected Jenkins to answer before his trial. Several of the answers might have required Jenkins to incriminate himself; any one of them

could have been admissible against him in a criminal proceeding in Canada (or in the United States). He would have had to answer them under no privilege or safeguard whatever. It was a flagrant disregard of due process in the country that invented the term “due process.” I told Fitzgibbon flatly that I was advising my client not to answer any of his questions except for the information that Fergie had never been previously arrested in his entire life.

Kuhn’s letter to Jenkins read in part: “Since you have declined to co-operate with this office’s investigation, and thus perhaps to exonerate yourself, I think it is also fair that

you should not be in uniform again until this matter has been disposed of. I am hopeful that your defence in the Canadian proceeding will establish your innocence. Consistent with that view, I am asking the Texas club to continue your salary and benefits in your absence, which should make it clear that my action is in no sense intended to be punitive.”

Talk about hardball. Kuhn spoke like the Queen in Alice in Wonderland: sentence first, verdict later. I was especially outraged by the effrontery of his suggestion that the act of suspending Jenkins with full pay was not intended to be punitive. What greater punishment is there than suspending a player in midseason? What’s worse than taking him out of the game and breaking his stride? That could apply to any player, but especially to a player in his middle 30s who may have only two or three seasons of professional baseball left. It was blighting the career of a great athlete with a stroke of the pen.

In such situations it’s often best to take off your gloves. I realized, however, that no matter what happened to Jenkins on the drug charges in Canada, he would have to live with

Kuhn for some time to come. He had to pitch in his ball park. It never serves a client to win a battle if it loses him the war, so I agreed with Major League Players Association counsel Donald Fehr’s very proper and conciliatory plan to plead with Bowie Kuhn first, asking him to reconsider his decision. But the czar of baseball was not in a mood for conciliation or compromise. That left us with no choice. The next day, on Sept. 9, the Players Association filed a grievance on Fergie’s behalf. It called for his immediate reinstatement, “there being no just cause for the penalty imposed.” Baseball’s permanent arbitrator, University of Kansas law professor Raymond Goetz, agreed to the scheduling of a hearing for the evening of Sept. 18 in Chicago. Time was of the essence. The baseball season would end on Oct. 5.

On Sept. 18 I flew to Chicago to testify before the arbitration panel. In addition to chairman Goetz, the panel included one representative of the Players Association bringing the grievance and another from the Major League Baseball Player Relations Committee, Inc.—-in essence, Kuhn’s office. The three men listened to the arguments. The gist of Kuhn’s position was that (1) he had a duty to protect the image of baseball; (2) he had the authority to make the decision that he made; and (3) there were several precedents supporting the view that if a defendant made the “hard choice” to answer his bosses’ questions, even if it could be used against him at his trial later, it did not amount to denial of his constitutional right against self-incrimination.

It was the tough position of a tough guy. The position of a man with perhaps a little more power and a little less understanding of § fairness and decency than he I ought to have had. Goetz did not g buy it. On Sept. 22 he ordered Jenz kins restored to active status with 9 the Texas Rangers effective immediately. Fergie flew off to join the Rangers in Minnesota, ready to pitch against the Twins. I came back to Toronto to prepare for his trial scheduled for Dec. 18 in provincial court at Brampton, Ont., before Judge G. L. Young.

Since the Crown and the defence agreed on the facts, the judge would probably have no choice but to register a finding of guilt on a charge of simple possession against Fergie. For that reason, the entire trial was likely to be about sentencing. Ivan Bloom had already indicated that he was going to ask for as large a fine as he could get under the law. I made up my mind that the proper penalty in this case was an absolute discharge. An absolute discharge would mean that in spite of a finding of guilt, a defendant could walk out of court as if he had not been convicted at all. He would not acquire a criminal record of any kind. I did not think that Ferguson Jenkins, any more than any other first offender, should have a criminal record for an offence of this nature. There was an interesting dilemma, however.

Jenkins was an outstanding athlete, a genuine majorleague star. He was a winner of the Cy Young Award (1971) given to the best pitcher in the league. He had been named

Pitcher of the Year by The Sporting News four times (1967, 1971, 1972 and 1974). Jenkins was also, by all accounts, an exceptional human being. He was a recipient of this country’s highest civilian decoration, the Order of Canada. I could have called an array of glittering international names to testify for him. The most prominent people here or in America would have been glad to offer character evidence on his behalf. But I couldn’t help feeling that rather than helping Fergie this might somehow work against him.

Emphasizing Jenkins’s great achievements, instead of bringing him the same result that any first offender on such a minor drug charge could reasonably hope for in 1980, might have the reverse effect on a court. It might create a feeling in the judge that he was being pressured, that he was being asked to play favorites or to make an exception when, in fact, the defence was asking him not to make an exception at all. I was only hoping for a judgment that would not put Jenkins in a worse position than it would any other first offender of previously impeccable character and blameless reputation. I did not want Jenkins to be let off for being a great baseball star. I just didn’t want him to be penalized for it.

At the trial Judge Young did make a finding of guilt against Fergie Jenkins. By that time I had decided not to call a single famous personality, a single celebrity. The witnesses offering evidence for Fergie would be four ordinary citizens. Four decent, public-spirited members of the small community in which he grew up and which was still the permanent home of his family:

Chatham, Ont. I did not expect these four witnesses to be particularly eloquent. I simply expected that they would tell Judge Young the facts. Tell him about the kind of man Ferguson Jenkins was known to be by those who knew him best: his neighbors in his own community. In the end that turned out to be the most eloquent testimony of all.

This was what Dr. Charles Keeley had to say: “I cancelled four cases this morning to come down here because I felt it was so important that this man be represented by the community. I’ve looked after Fergie’s family. His mother, I tended her in her final illness. And Fergie just amazed me how he would come home and be there at the beck and call even though he was involved in many campaigns at the time during the baseball season. This fellow’s always available for any function, to raise money for any cause, and has always been most gracious about it.” I asked Dr. Keeley, “Would it be in the interest of the public that he be given ... I suppose the best word is a break by this court?” He replied: “Yes. I think even in baseball you’re allowed three strikes before you’re out.”

Ronald Hancock, president of the Kent Life Underwriters Association, described a fund-raising function for a local charity called Poor Boys Lunch at which Fergie took off his own cowboy boots, auctioned them off for $150, then walked home in his stocking feet. “I’m fortunate,” Hancock said. “I’m one of 40,000 people in Chatham that’s been able to come here today. But I think you could probably go to almost any one of those 40,000 and they would probably give you the same testimony. He’s a super individual.”

Douglas Allin, a former mayor of Chatham, said, “I could not praise the gentleman enough for what he’s done to help

me with senior citizens, with our youth.” And when I asked Gene Dziadura, a Chatham history teacher and onetime baseball player in the Chicago Cubs farm system who later became a scout and had first scouted Jenkins for the Philadelphia Phillies, if people would think that the court was condoning Fergie’s offence by giving him an absolute discharge, he said: “No, I don’t. I don’t think our community would look down upon the law, would look down upon Fergie as saying, ‘This was easy for you.’ I don’t think so. I think they’re genuinely feeling that Fergie is part of the community. A mistake has been made. And they want him to continue.”

In his decision, Judge Young declared: “It seems to me that a person who has conducted himself in such an exemplary manner that he is held in high account in his community, and indeed in his country, there comes a time when he is entitled to draw on that account. This is one of those occasions. Especially, and particularly, when the potential ramifications of a conviction would be so severe. I therefore find that it would not be contrary to the public interest to grant [an absolute] discharge.” No judge has ever more narrowly escaped being kissed on the cheek in open court by a defence lawyer than Gerry Young did. But as one of the great phrasecoiners of baseball remarked: it ain’t over till it’s over. The American immigration authorities were no longer a problem, but Fergie Jenkins’s future was once again in the hands of Bowie Kuhn. Quietly, without telling the Players Association of my intentions, I flew into New York. Without even checking into a hotel, I took a taxi to 75 Rockefeller Plaza and had a private meeting with Bowie Kuhn. The battle was won; to get the best result for my client, it was now time to make nice instead of picking another fight.

The result came in a press release from the commissioner’s office on Feb. 5, 1981. There was to be no suspension. Fergie was going to contribute $10,000 to a drug-education program in Texas aimed at young children. He was also to make public appearances, both in person and on educational film clips, supporting the aims of drug-education programs and expressing deep regret “for the mistake that led to my involvement in the drug charges that were recently disposed of in Canada.”

Now it was over. At our final meeting before his press release, Bowie Kuhn and I parted amicably. There was no question about Kuhn’s sincere dedication to what he considered, no doubt often rightly, as best serving the cause of baseball. Nor was there any doubt in my mind—nor in Fergie’s for that matter—that the use of psychoactive drugs is unlawful and pretty stupid. Almost as bad, in fact, as trying to deny a person’s legal rights or wiping out the results of a lifetime’s outstanding athletic achievements for one single mistake.

One final note. In the spring of 1983 Fergie Jenkins was quoted in The Wall Street Journal as saying, “I know I didn’t do anything wrong, but my lawyers told me that if I wanted to stay in baseball I’d have to bend, so I bent.” I would have hoped that having said this much, Fergie might have gone further. As his lawyer, I can’t. Only he is entitled to make all the circumstances public. Maybe he will, one day.O