On Jan. 4, 1975, insofar as this case is concerned, two events occurred: one, a hockey game was played by two National Hockey League teams, the Minnesota North Stars and the Boston Bruins, in the Metropolitan Sports Center in the city of Bloomington in the county of Hennepin in the state of Minnesota; secondly, the defendant, Mr. David Forbes, a member of the Boston Bruins team, committed an aggravated assault on Mr. Henry Boucha, a member of the North Star team."
So, in flat, just-the-facts-please fashion did Hennepin County Attorney Gary Flakne introduce Case No. 63280, "The State of Minnesota vs. David S. Forbes," to the jury in Hennepin District Court on July 9.
Ten days, 27 witnesses and 18 hours of deliberation later, the trial ended in an equally perfunctory manner when Judge Rolf Fosseen ruled, "Since there is no reasonable probability for agreement, the jury is dismissed. I suggest that you get your hat and coats. Court dismissed."
The hung jury satisfied no one, least of all David S. Forbes. Moments after the mistrial was declared, the 26-year-old Bruin leftwinger slumped against a railing outside the courtroom as if stunned by a particularly vicious body check. "I feel like I've been trampled by a thousand buffaloes," he said. "I'm more confused now than I've been through this whole thing."
He is not alone. Indeed, though propriety prevailed in the courtroom, controversy has raged elsewhere ever since Forbes was indicted (SI, Jan. 27) by a Hennepin County grand jury on Jan. 17 for aggravated assault with a dangerous weapon—his hockey stick. As the first prosecution of a professional athlete in the U.S. for an alleged criminal act committed during a sporting event, the Forbes trial figured to become a test case for legal precedents that could reshape the nature of contact sports.
Fred Shero, coach of the Stanley Cup champion Philadelphia Flyers, a team often celebrated as the Broad Street Bullies, voiced a typical reaction: "This trial's a joke. There'd be no sports, no leagues if this kind of thing always happened. If a guy threw a baseball at your head, you'd immediately sue him. If a guy came into second base with his spikes high, you'd sue him. In football they jump you from behind, they knee you, they kick you, and all you'd have to do is get a film of this, say it's illegal, and sue them. It's crazy."
NHL President Clarence Campbell, who suspended Forbes for 10 games after what he described as "one of the most vicious incidents I have ever been called upon to deal with," said that the trial was "very embarrassing to hockey. Courts are not the answer. Discipline must remain within the sport. Civil authorities are not equipped to deal with happenings in a game [particularly] isolated incidents. If you begin to rely on a court, no discipline in sport would be acceptable in terms of public opinion."
The battle lines became even more sharply defined when Case No. 63280 moved into the courtroom. In an unsuccessful attempt to have the trial dismissed, Forbes' defense attorney, Ronald Meshbesher, the patron saint of lost legal causes in Minneapolis, stated that, "I can't imagine our legislature envisioned that the assault statutes would be applied to any type of professional athletic contest. If that's true, then everyone who engages in boxing is guilty of assault every time they punch the other participant. The application of the law to Mr. Forbes makes him a scapegoat."
Reactions outside the courtroom cast other suspicions. "This is a political thing," said Joseph Keough, Forbes' personal attorney from Pawtucket, R.I., "a situation of a guy who took a national case and is pursuing it for publicity. I know of at least two NHL general managers who want to ban [play in] the whole state of Minnesota. Their feeling is, why bring in a' team and subject them to a guy like Flakne wanting to make political hay."
Flakne, who was appointed to the vacated office of county attorney in 1973, then elected last November, is a liberal Republican in a Democratic county. He says, "I don't prosecute for political purposes. An assault is an assault whether it occurs in a parking lot, at a country club or on a hunk of ice rented by the NHL. Any county attorney worth his salt would prosecute in this case."