Maybe it’s a coincidence, but it’s strange how the case of alleged sexual assault against Steelers quarterback Ben Roethlisberger has begun to publicly unravel in the three days since Commissioner Roger Goodell addressed the situation for the first time in brief but ominous fashion.
“The most important thing is we take the issue seriously,” Goodell said. “We are
concerned that Ben continues to put himself in this position.”
On Tuesday, word came that the request for a DNA sample had been withdrawn. Though not technically relevant to these circumstances given the absence of any issue regarding mistaken identity, the development caused many to conclude that the case would soon crumble.
On Wednesday, KDKA-TV reported that the alleged victim has failed to meet with authorities for a second interview, and that she hasn’t spoken to police since the evening of the alleged incident. The fact that she promptly retained counsel after the incident means that she’s either acting on advice of those lawyers — or she’s ignoring their recommendations. Either way, no criminal case can proceed without a cooperative victim.
Now, the Pittsburgh Tribune-Review reports that the alleged victim had a blood alcohol concentration in excess of 0.20 percent, a very high number suggesting significant intoxication. Still, the information comes not from police, but from the lawyer representing the nightclub where the alleged incident occurred. Carl Cansino claims that the authorities shared this information with him.
So if they shared it with him, why didn’t they share it with the Tribune-Review? (In this regard, keep in mind that the Tribune-Review also reported a couple of weeks ago that Roethlisberger would be providing a DNA sample and submitting to another interview, neither of which have happened. Then again, the Tribune-Review never has reported that Terry Bradshaw has died. I felt compelled to add that because several commenters surely would have.)
And here’s where it gets weird. (Or, as the case may be, weirder.) Cansino explains that the security videos from the evening of the incident weren’t available, because the system used at the club “recorded over the footage.”
“The DVD system overwrote itself,” Cansino told the Tribune-Review. “Had it just been
deleted, they might have been able to save some of it.”
Setting aside for now the fact that we don’t understand how in the hell more of the footage would have been available it all of it had been deleted, the fact that the tapes would not have been preserved in relation to an event that came to light before the evening ended is very troubling to us.
I’ve encountered multiple situations like this, in my technically mothballed legal career. Many businesses have security cameras, and most have a system where, eventually, the old footage automatically is replaced with new footage. Otherwise, each place of business eventually would need an NFL Films-style vault to house what amounts to, in most cases, recordings of primarily if not exclusively innocuous activity within the premises.
One of the frustrations often encountered in these cases is that nightclubs and retailers are in position to preserve the footage that advances their interests, such as video of employee misconduct, because they know to pull the images before the system covers them up with new footage. For incidents that could create liability for the business, the footage usually is long gone by the time a lawsuit is threatened or filed, since the business had no reason to save it, especially if it might be harmful to the interests of the business.
There’s a huge difference in this case. The folks who run the Capital City nightclub in Milledgeville, Georgia knew immediately that an incident had occurred. Thus, the footage should have been flagged and saved, with or without a request or a subpoena.
So, yes, something stinks about this specific development. Even though there reportedly was not a camera in the vicinity of the place where the alleged incident occurred (“a staff restroom near a dingy storage corridor,” the epitome of high class), other cameras could have captured images that would have provided circumstantial evidence of innocence or guilt, based on the alleged victim’s demeanor before and after the incident.
If, in the end, a lawsuit is filed by the alleged victim (assuming, of course, that her failure to cooperate hasn’t resulted from a confidential settlement that already has been reached), look for Capital City to face a litany of claims for failure to provide a safe and secure environment — and look for the alleged victim’s lawyer to hammer the nightclub for failing to preserve video evidence that might have been incredibly useful to the overall pursuit of the truth.