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Ortiz statement to police raises several hearsay questions

Ortiz AP

It’s one thing for police to have statements from Carlos Ortiz that can be used to support the issuance of a search warrant.  It’s quite another to be able to use those statements at trial.

Many of you instantly recognized that Ortiz’s explanation to police that Ernest Wallace told Ortiz that Hernandez told Wallace that Hernandez shot Odin Lloyd entails multiple levels of hearsay.

Let’s start this foray into trial procedure by assuming Ortiz will testify in the prosecution of Hernandez.  Would testimony from Ortiz that Wallace said Hernandez said he shot Odin be admissible?

As the case often is with matters that eventually will be decided by a judge, the answer is “maybe.”

Hernandez’s statement falls within the exclusion to the definition of hearsay, since the statement (“I shot Lloyd”) is being used against Hernandez.  But Hernandez said it to Wallace, not to Ortiz.  So when Wallace tells Ortiz that Hernandez told Wallace that Hernandez shot Lloyd, it potentially becomes hearsay.

Actually, there’s a chance that Wallace’s connection to Hernandez brings the entire statement within the exclusion to the hearsay rule.  Section 801(d)(2)(E) of the Massachusetts Rules of Evidence says that “[a] statement of a coconspirator or joint venturer made during the pendency of the cooperative effort and in furtherance of its goal when the existence of the conspiracy or joint venture is shown by evidence independent of the statement.”

In English, this means that if the effort to kill Lloyd and clumsily cover it up became a joint venture between Wallace and Hernandez, anything Wallace says about the joint venture isn’t hearsay.  The pressure point would be whether telling Ortiz that Hernandez said he shot Lloyd constitutes a statement made “in furtherance of [the] goal” of the joint venture.

Coincidentally, Bristol County, Massachusetts District Attorney Sam Sutter recently used the term “joint venturer” when discussing the situation.

Another level of hearsay arises if, for whatever reason, Ortiz doesn’t repeat what he said to police in court.  His own statements to investigators, made out of court and without an opportunity by Hernandez’s lawyer to cross-examine him, also become hearsay — unless it’s determined that he’s another “joint venturer,” even though his agenda on the night in question appeared primarily to be sleep.

Complicating matters in this context is the Confrontation Clause of the Constitution, which gives a criminal defendant the right to interrogate anyone giving testimony against the defendant.  The statements Ortiz made to police about the events of the evening and Wallace’s comments about Hernandez’s confession are more likely to be admissible if Ortiz is not available to testify at trial; one issue that would need to be researched under Massachusetts law is whether invoking the Fifth Amendment right against self-incrimination makes the witness unavailable.

In the end, the judge presiding over the case will have to decide whether to allow the statement in to evidence.  Factors that shouldn’t matter but that definitely will include whether the judge believes based on all of the other evidence that a conviction is likely without the statement being admitted.  Since allowing the statement to go to the jury could be what lawyers and judges call “reversible error” (in English, grounds for overturning the conviction on appeal), there’s no reason to do it if the evidence otherwise appears to be overwhelming.

It’s a very common dynamic at trial.  If, all of a sudden, one side starts winning all of the evidentiary rulings, it’s a strong clue that the judge thinks the other side is poised to win the case.  For Hernandez, despite the information made available to the media, it’s still way too early to tell how this one would play out in a court of law.

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Bills sign Ramon Humber, make their kicker decision

Ramon Humber AP

The Bills have made their kicker decision — or at least helped lend depth to their linebacker position.

According to Vic Carucci of the Buffalo News, the Bills have signed veteran linebacker Ramon Humber, and cut kicker Jordan Gay to make the roster spot.

That leaves Dan Carpenter as the Bills kicker, after he and Gay had competed for the job throughout the offseason.

Humber was released by the Patriots yesterday, giving him one of the primary requirements to play for the Bills. Humber spent the previous six years with the Saints, and has been a solid special teamer over the course of his career.

The Bills also just traded for former Packers linebacker Lerentee McCray, as they’re trying to lend some depth to a spot plagued by injuries this preseason.

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Mike McCoy: Joey Bosa looked “ready to roll” in first practice

San Diego Chargers' Joey Bosa works out at his first practice since agreeing to a four year contract, Tuesday, Aug. 30, 2016, in San Diego. (AP Photo/Lenny Ignelzi) AP

The Chargers finally got defensive end Joey Bosa back onto the practice field on Tuesday, a day after Bosa ended his long contract stalemate with the team and signed his four-year rookie deal.

Tuesday’s workout was just a walkthrough, so there was a limit to how much Bosa was able to do on the field. Coach Mike McCoy said after the workout that he was happy with Bosa’s condition and energy after being away from the team since OTAs came to an end.

“It was great to get him here,” McCoy said, via the team’s website. “We couldn’t wait to get him here, and he looked as expected, in shape, ready to roll. [He’s] a guy who loves to play. The energy, the passion he comes to work with every day. He was that way all day yesterday either in the weight room, in the meetings [or] no matter where it was.  You go out there and see it when he goes through individual drills. He looked like the way he did when he left.”

Bosa said he plans to spend extra time with coaches during upcoming practices in hopes of getting “back in the rhythm of things” after his long absence from practice. That may be a while for a player who hasn’t been in pads since his last game at Ohio State, but getting the process started was an important step after so much waiting this summer.

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Apparently, not all former players dropped their objection to the concussion settlement

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So the New York Post has reported that the players objecting to the concussion settlement dropped their appeal, opting not to proceed with an effort to persuade the U.S. Supreme Court to take up the case.

The lawyer representing the class of players who settled with the NFL has issued a statement to the contrary.

“We believe the Supreme Court should deny the appellants’ petition, as these objections have now been exhaustively examined and overruled by the both the District Court and the Third Circuit,” lawyer Christopher Seeger said in a press release. “Despite the fact that the claims process has not opened due to delays caused by these appeals, more than 9,000 retired players have sought enrollment in the settlement’s benefits. These appeals come with devastating consequences for the thousands of retired NFL players suffering from neurocognitive injuries and effectively stand between truly injured retired players and their sole prospect for obtaining benefits while still alive. While we are pleased several appellants have decided against petitioning the U.S. Supreme Court, it is clear the few lawyers still objecting to this settlement have motives other than what is in the best interest of the retired NFL player community. We hope the Court will reject this appeal and affirm the settlement so former players can finally receive the care and support they urgently need.”

Apparently, when Alan Faneca told the Post he was dropped the issue, he was speaking only for himself. Other former players have decided to pursue the Hail Mary option, which will delay by several more months the payment of benefits under the concussion settlement.

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Panthers finally sign a veteran safety, pick Stevie Brown from the pile

Stevie Brown AP

The Panthers have looked at a number of safeties in recent days, and have finally settled on one.

Or gotten one to settle for what they’re offering.

According to Ian Rapoport of the NFL Network, the Panthers are signing safety Stevie Brown.

They’ve looked at a number of veteran options, including Donte Whitner and Major Wright. But they also had an immediate need, since four of their seven safeties are some degree of injured and they’ve got a game to play tomorrow night.

Brown had a great 2012 with the Giants (when Panthers General Manager Dave Gettleman was working there), but has bounced around considerably since. He was cut by the Chiefs last week.

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Saints expected to put Damian Swann on injured reserve

NEW ORLEANS, LA - NOVEMBER 01: Damian Swann #27 of the New Orleans Saints warms up before his team took on the New York Giants during their game at the Mercedes-Benz Superdome on November 1, 2015 in New Orleans, Louisiana. (Photo by Sean Gardner/Getty Images) Getty Images

The Saints are adding linebacker Paul Kruger to their defensive mix, but they are also losing another player on that side of the ball.

Nick Underhill of the New Orleans Advocate was the first to report that cornerback Damian Swann will be heading to injured reserve. Swann has missed time recently and went to see Dr. William Meyers in Philadelphia earlier this week for an examination. Meyers is a specialist in core muscle injuries, but there’s no word on the exact injury and Adam Caplan of ESPN reports he doesn’t need surgery.

Swann was a fifth-round pick in 2015 and made two starts in seven appearances during a rookie season interrupted by three concussions. He had 22 tackles and four passes defensed over the course of the year.

The Saints cut Keenan Lewis earlier this summer and losing Swann would leave them with P.J. Williams, Delvin Breaux and Cortland Finnegan at the top of the depth chart and undrafted rookies De’Vante Harris and Ken Crawley behind them. That may leave the Saints scouring the discard piles this weekend for more help at the position.

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Concussion settlement objectors drop their appeal

GettyImages-56016909.0 Getty Images

Three years to the day after the NFL and thousands of former players reached a tentative settlement in a massive concussion class action, the settlement is finally official.

Via the New York Post, Monday came and went without the former players who opposed the settlement filing a petition for appeal with the U.S. Supreme Court, ending the case and allowing the settlement to proceed.

“It’s been a long road, and I guess there comes a point in time when you see the end of the road,” Alan Faneca told the Post. It is for the greater good of everybody.”

The settlement has flaws, but it also provides compensation for players with specific conditions regardless of whether playing pro football caused those conditions.

The biggest hole arises from the inability to prove Chronic Traumatic Encephalopathy in living players. The estates of deceased players with CTE will be entitled to payment. Living players who have CTE but none of the specific conditions covered by the settlement receive nothing — primarily because there’s currently no way to know whether they have CTE.

If/when a reliable test for diagnosing the condition is developed, the terms of the settlement should be revisited. Until then, it’s finally time for former players who need compensation to receive it.

UPDATE 12:07 p.m. ET: Contrary to the report in the Post, the lawyer representing the class of players who negotiated the settlement has issued a statement indicating that some of the former players who object to the settlement have continued to pursue the appeal process.

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Falcons put rookie WR Devin Fuller on injured reserve

Atlanta Falcons wide receiver Devin Fuller carries the ball during the first half of an NFL preseason football game against the Cleveland Browns, Thursday, Aug. 18, 2016, in Cleveland. (AP Photo/David Richard) AP

Falcons seventh-round pick Devin Fuller made it through the cut to 75 players, but the wide receiver won’t be on Atlanta’s 53-man roster this season.

The Falcons placed Fuller on injured reserve Wednesday, ending his first NFL season before the official start of his first NFL season. Fuller injured his shoulder against the Dolphins last week.

Fuller had had five catches for 66 yards and a touchdown in his three preseason appearances and also saw time as a returner on both punts and kickoffs. J.D. McKissic looked like the choice on kickoff returns even before Fuller’s injury thanks to a 101-yard return for a touchdown against the Redskins.

The Falcons brought fullback Will Ratelle back to the roster to fill Fuller’s spot, although his chances of making it past Saturday don’t look good after he was released earlier this week.

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Ravens may go with all-rookie left side of offensive line

Baltimore Ravens tackle Ronnie Stanley signs autographs for members of the military after NFL football training camp in Owings Mills, Md., Wednesday, Aug. 3, 2016. (AP Photo/Gail Burton) AP

The last time a team started rookies at left tackle and left guard in the first week of the regular season was in 1995 when the Panthers did it in their first game as an NFL franchise.

The Baltimore Ravens didn’t exist at that point, but they may be going the all-rookie route this season. First-round pick Ronnie Stanley is definitely starting at left tackle and fourth-round pick Alex Lewis may be next to him at guard. John Urschel looked like the choice for that position, but he’s been out with a contusion since the first preseason game.

Coach John Harbaugh said that he has been “really impressed” by Lewis’ play and that going young on the left side is a real consideration.

“That is a great question,” Harbaugh said, via ESPN.com. “We probably are considering that right now, but we haven’t had that discussion yet, just because John hasn’t been out there. That is something we have to consider.”

If the Ravens do go the rookie route up front, they’ll hope for better results than the nine sacks the Panthers allowed in the 1995 opener and that the Stanley-Lewis pairing can be foundation pieces on the line for a long run.

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Steelers restructure Antonio Brown’s contract

Pittsburgh Steelers wide receiver Antonio Brown (84) warms up during a practice at the NFL football team's training camp in Latrobe, Pa., Monday, Aug. 1, 2016. (AP Photo/Gene J. Puskar) AP

The Steelers have a strict policy regarding contract extensions. For any player other than a quarterback, they don’t happen with more than a year remaining on the deal.

But there are other ways to reward key players, and as non-quarterbacks go there’s no player more important to the Steelers than receiver Antonio Brown.

A league source tells PFT that the Steelers have moved $4 million in Brown’s compensation from 2017 to 2016, pushing his compensation this year to $10.25 million. Although the restructuring robs Peter to pay Paul, Brown like will get paid like John, Paul, George, and Ringo come 2017, so it doesn’t matter whether his 2017 pay is reduced.

Specifically, Brown gets and $8.975 million signing bonus and a $1.275 million salary for 2016.

The Steelers made a similar restructuring to the deal in 2015, when Brown had three seasons left on his contract. Although many thought the Steelers wouldn’t do it again — G.M. Kevin Colbert told PFT Live in March that the team expects the contract to be honored without any issues — they did.

Come 2017, the question will be how much more he receives and for how many more years he commits to a franchise for which Brown, a sixth-round pick in 2010, seems destined to become one of the all-time greats.

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Kaepernick goes vegan, but claims it hasn’t led to muscle loss

San Francisco 49ers quarterback Colin Kaepernick watches his teammates warm up before an NFL preseason football game against the Houston Texans, Sunday, Aug. 14, 2016, in Santa Clara, Calif. (AP Photo/Tony Avelar) AP

Colin Kaepernick’s refusal to stand for the national anthem has overshadowed what may be a more important issue to the 49ers: He has significantly declined as a player. One reason for that decline may be his loss of muscle mass.

That loss of muscle mass is obvious to anyone who looks at him: Kaepernick, who was once so muscular that then-49ers coach Jim Harbaugh worried that his huge muscles could affect his throwing motion, now looks skinny.

And yet Kaepernick, who confirmed to reporters that he went vegan nine months ago, claims he hasn’t lost any body mass. That’s hard to believe not only because he looks so much skinnier but also because it’s hard for anyone not to lose muscle when on a vegan diet because protein is essential to maintaining muscle mass and most protein sources are animal-based. (Former NFL tight end Tony Gonzalez briefly tried a vegan diet during his playing career but started eating meat again after he lost too much weight.)

San Francisco coach Chip Kelly confirmed that Kaepernick has lost muscle, although Kelly said it’s because he hasn’t been able to lift weights while recovering from offseason surgeries.

“He’s limited in the type of lifting so he’s not the same size,” Kelly said. “He’s not back to where he was before.”

Getting back to where he was before from a size and strength perspective will be essential to getting back to where Kaepernick was before as a quarterback. That’s going to be harder to do as a vegan.

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Bucs coach loves his QB depth, when other teams don’t have enough

Tampa Bay Buccaneers quarterback Mike Glennon (8) throws a pass while pressured by Jacksonville Jaguars defensive end Chris Smith (98) during the first half of an NFL preseason football game in Jacksonville, Fla., Saturday, Aug. 20, 2016. (AP Photo/Phelan M. Ebenhack) AP

At a time when several teams are looking for capable bodies or starters at quarterback, the Buccaneers have three they like.

And Bucs coach Dirk Koetter is willing to admit that might be one more than they want to keep.

With Mike Glennon and Ryan Griffin behind starter Jameis Winston, the Bucs have an experienced starter and a promising project in reserve.

“I feel great about that room. I think we have good depth,” Koetter said, via Rick Stroud of the Tampa Bay Times. “If it was a perfect world, we are getting to the point where it would be better for our football team if we could keep two quarterbacks because we’re going to have to let some guys go that we don’t want to let go. And I think the perfect set-up with the way the NFL is structured right now, is two quarterbacks and one on practice squad. But if you have a good one and you try to put him on practice squad, the league is so short of quarterbacks, he’ll get scooped up like that. . . . I believe in keeping two and a developmental guy, but we’re just not in that situation right now.”

“I believe in keeping two and a developmental guy, but we’re just not in that situation right now.”

Glennon’s the one they’d likely receive calls — and maybe listen — on. He has 18 starts in his career, has played acceptably well in the past but will become a free agent after the 2016 season. Griffin is the guy they’d like to develop a bit, and as long as Winston is well, that’s a fine plan.

But since they’d get a compensatory pick if Glennon leaves in free agency anyway, the Bucs would likely have to be blown away by an offer to move their backup at this point.

“I think it’s safe [to say] that we’re probably going to keep three quarterbacks,” Koetter said.

But if anyone’s looking, it can’t hurt to call.

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Baseball dreams accelerate endorsement realities for Tebow

Former NFL quarterback, Tim Tebow works out for baseball scouts and the media during a showcase on the campus of the University of Southern California, Tuesday, Aug. 30, 2016 in Los Angeles. The Heisman Trophy winner works out for a big gathering of scouts on USC's campus in an attempt to start a career in a sport he hasn't played regularly since high school. (AP Photo/Chris Carlson) AP

Tim Tebow claims that his desire to play baseball is “definitely not about money.” I wonder how much money he’d be making if it was about money.

As it stands, he’s making plenty of money as part of an effort that’s definitely not about money. Tebow has been selling signed baseballs and bats at $125 and $175 a pop, respectively. And now, ESPN co-worker Darren Rovell reports that Tebow has signed a multi-year deal with Adidas.

“Sources said there was always an active dialogue between Tebow and shoe and apparel companies,” Rovell writes. “His attempt to make it in baseball accelerated that timeline.”

In other words, Adidas and others had been talking to Tebow when he was a football player in permanent limbo. Once he became a budding baseball player, a deal got done. The first manifestation of it occurred on Tuesday, when Tebow became essentially an Adidas sandwich board, wearing the company’s gear from head to toe.

But Tebow’s baseball excursion definitely isn’t about money.

It’ll be interesting to see how else this not-about-the-money baseball endeavor results in money being paid to Tebow for things other than, you know, actually playing baseball.

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Laremy Tunsil says he still has a lot of work to do

Miami Dolphins' offensive lineman Laremy Tunsil talks with the media, Wednesday, Aug. 17, 2016, after practice at NFL football training camp in Davie, Fla. (AP Photo/Lynne Sladky) AP

Dolphins rookie offensive lineman Laremy Tunsil was a left tackle in college but is projected to start at left guard in Week One. That’s the position he’s been playing in the preseason, and a position where he still says he has a lot to learn.

“Looking at the film I feel like I played pretty good,” Tunsil said, via the Palm Beach Post. “I still need some improvement. I still need some work.”

While many starters sit out the final preseason game, Tunsil will play on Thursday night, as the Dolphins try to give him as much work as possible at his new position before he plays it in the games that count.

“I’m going to continue to get better every day,” Tunsil said. “Keep listening to the coaches, keep listening to the vets.”

That’s what the Dolphins will need Tunsil to do to be ready to start at left guard in 11 days.

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Report: Saints signing Paul Kruger

FILE - In this Dec. 13, 2015, file photo, Cleveland Browns outside linebacker Paul Kruger (99) rushes the passer against the San Francisco 49ers during an NFL football game, in Cleveland. The Browns have released linebacker Paul Kruger, a startling move in another step in the team's youth movement.
Kruger started 46 games and made 18 sacks in three seasons for Cleveland and was considered one of the team's leaders. At left is 49ers' Erik Pears (71). (AP Photo/David Richard, File) AP

The Saints finished Tuesday with 74 players on their roster, but it looks like they’ll be topped up at 75 soon.

Ian Rapoport of NFL Media reports that the Saints will sign linebacker Paul Kruger. Kruger visited with the Saints on Tuesday after being released by the Browns and also drew interest from the Chiefs, although they’ll have to look elsewhere for help filling in for Justin Houston.

The Saints were bidders for Kruger before he signed with Cleveland in 2013 and pass rushing help has been a consistent need in New Orleans over the years. This year’s push for it intensified after they lost Hau’oli Kikaha to a torn ACL in the spring and the team’s play in the preseason has done little to suggest that they had the right pieces on hand.

That’s why Kruger is reportedly coming to town and why the team traded for Chris McCain this week. They’ll try to get both players integrated into the defense in time to put pressure on Raiders quarterback Derek Carr come Week One.

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Parcells to Zimmer: This isn’t a situation where success is impossible

MINNEAPOLIS, MN - AUGUST 28: Head coach Mike Zimmer of the Minnesota Vikings looks on from the sidelines pregame against the San Diego Chargers at US Bank stadium on August 28, 2016 in Minneapolis, Minnesota. (Photo by Adam Bettcher/Getty Images) Getty Images

When Vikings coach Mike Zimmer met with the media after quarterback Teddy Bridgewater’s knee injury in Tuesday’s practice, he mentioned that he’d spoken to his former boss Bill Parcells after Bridgewater got hurt and before he spoke to the media.

Zimmer’s main message was that the Vikings will figure out a way to move forward without Bridgewater, something that Parcells told Peter King of TheMMQB.com was a big part of their conversation. Parcells said that Zimmer is resolute and determined, two things that he’ll need to be now that he’s “driving the train” with “100 sets of eyes” on him while he tries to move the team forward without their quarterback.

Parcells said he told Zimmer that “there are situations that won’t allow you to succeed,” but that this isn’t one of them. He recalled the need to turn to Jeff Hostetler in 1990 after Phil Simms was injured after a great start to the season and said the Giants figured out “ways to win those games” all the way up to a Super Bowl victory over the Bills. He believes the Vikings have the same potential and told Zimmer it’s up to him to figure it out.

“I told him, ‘The first thing you need to know is this: Everyone in the organization, and that includes some of the players and the coaches, are going to think they have an excuse now,'” Parcells said. “Once the shock is over, probably 48 hours from now, they’re all gonna come to you and look at you and say, ‘What are you gonna do?’ Because you’re charged with winning games now, no matter what you have on your team. You need to figure out what works — what recipe works. And tomorrow morning, once the shock wears off, nobody’s gonna give a s—. It’s his problem. He’s gotta figure out how to win now.”

Things didn’t always work out as well for Parcells as it did with Hostetler. In 1999 with the Jets, Parcells had a good team coming back from an AFC title game loss to the Broncos but quarterback Vinny Testaverde tore his Achilles early in the season opener. The Jets turned to Rick Mirer during a 1-6 start that sank their hopes of contending in Parcells’ final year as the team’s coach.

Zimmer’s task will be to avoid similar results and he has a little more than a week to put the pieces in place for Tennessee.

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