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The Isiah fallout

What's next after jury decides against Thomas, MSG?

Posted: Tuesday October 2, 2007 3:00PM; Updated: Tuesday October 2, 2007 5:14PM
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Isiah Thomas plans to appeal the jury's verdict that he sexually harassed former Knicks executive Anucha Browne Sanders.
Isiah Thomas plans to appeal the jury's verdict that he sexually harassed former Knicks executive Anucha Browne Sanders.

1) Does the jury's verdict that Isiah Thomas and Madison Square Garden committed harassment against former Knicks exectuive Anucha Browne Sanders ends the case?

No. The jury's verdict ends the trial, but Thomas and MSG have already said that they will appeal the verdict to the U.S. Court of Appeals for the Second Circuit, which has appellate jurisdiction over the U.S. District Court for the Southern District of New York, where the trial was held. Attorneys for Thomas and MSG would need to identify a "legal error" made by the district court. A legal error refers to a mistake made during the trial about the law, such as allegedly improper jury instructions or a motion mistakenly overruled by Judge Gerald Lynch. Neither disagreeing with the verdict nor believing that it is intrinsically unfair are enough to warrant an appeal.

2) Would an appellate hearing provide the same dramatics as did the trial?

Probably not. If there is an appeal, none of the parties or witnesses would testify, which would immediately remove the possibility of controversial live testimony. In addition, the appellate court would not consider any new evidence, so no more sensational fodder for the tabloids. Instead, attorneys for the parties would engage in a largely academic and theoretical discussion about the law and how it applies to this case, a process more commonly known as appellate advocacy. In making their arguments, the attorneys could refer only to the trial court's written record, including affidavits and the transcript of the trial court proceedings.

Although appeals often lack the dramatics and flair of a sensational trial, an appellate court's opinion can generate controversy and intrigue, particularly if it reverses a district court's holding in a high-profile case.

3) Will NBA commissioner David Stern wait for an appeal before he punishes Thomas (if, in fact, he punishes him)?

That decision ultimately rests with the commissioner, but I believe he will probably wait for the completion of appellate process before taking any action.

As we examined in a previous column on the Thomas trial, verdicts in civil trials are based on the burden of preponderance of evidence, which means more likely than not. Stern, a prominent litigator before being hired by the NBA in 1978 as in-house counsel, certainly appreciates how that burden reflects a much lower threshold than the burden of "beyond a reasonable doubt" found in criminal trials. That is not to say that he should overlook this verdict, particularly given his interest in promoting maturity and responsibility among all persons affiliated with the NBA and in denouncing any form of sexual misconduct, but the distinction between civil and criminal burdens should prove salient as he contemplates possible punishment.

Also, trial courts sometimes get cases wrong; that is why we have appeals. Attorney Stern, who litigated on behalf of defendants at the prestigious New York law firm Proskauer Rose before joining the NBA, undoubtedly appreciates that point.

On the other hand, Stern may seek to immediately punish Thomas to send his own form of specific and general punitive damages. First, by many accounts, the case has been an embarrassment to NBA and it has occurred at a time when the league is still contending with the aftermath of the Tim Donaghy betting scandal; perhaps the time is now for Stern to "send a message" to league officials that they, just like the players they coach, scout, administrate or officiate, need to behave like adults.

Stern might also feel that Thomas already received a reprieve from punishment when the commissioner declined to punish him for his possible role in the December 2006 brawl involving the New York Knicks and Denver Nuggets. He may also feel justified imposing a punishment based alone on Thomas' regrettable comments under oath about how, in his opinion, it would be worse for a "white man [to call] a black woman a bitch" than for an African-American male to do the same.

Michael McCann is a law professor at Mississippi College School of Law. He specializes in sports law. McCann can be reached at mmccann@mc.edu.