It was the punch seen ’round the world. It was tough to watch, and I’m saying that as a veteran criminal defense attorney who’s seen it all. I’m referring to Ray Rice, and the one punch knock-out blow that floored his then fiancée, Janay Palmer (now, Janay Rice) in the elevator of the Revel casino in Atlantic City, New Jersey. There has been much conjecture about the propriety of his NFL suspension, and about the man who made that decision, NFL Commissioner Rodger Goodell. So too there has been much discussion about the criminal assault prosecution, and the manner in which it was pursued by the Atlantic County Prosecutor’s Office, and Prosecutor James’s P. McClain. Some people feel the prosecution was heavy-handed, and that Ray Rice was only charged with Aggravated Assault because it was a high-profile case, and the prosecutor’s office didn’t want to appear weak on domestic assault. Some people feel he got a slap on the wrist because he was a high-profile NFL player, and former Rutgers University standout. The reality is that without a cooperating witness, even though the act was captured on video, a case like this can be difficult to prosecute. An uncooperative victim/witness is common in domestic assault cases, and why the decisions made by the prosecutor’s office were extremely pragmatic.
Simple Assault (2C:12-1) in New Jersey is a disorderly persons offense. It caries a statutory maximum penalty of 6 months in county jail, and a $1,000 fine. Aggravated Assault (2C:12-1(b)), the variety that Ray Rice was charged with, is a third degree indictable offense, and has a statutory maximum penalty of 5 years in state prison, and a $15,000 fine. The element that distinguishes simple assault from aggravated assault, is the seriousness of the injury, with aggravated assault requiring proof of serious bodily injury, or the ability to prove that a defendant had the intent to cause serious bodily injury (Serious bodily injury being statutorily defined as that which creates a substantial risk of death, or long-term disfigurement, or loss or impairment of an organ). Consider that the standard of proof for a successful prosecution, is not what you think you know, nor what you believe, nor what you think probably happened. It is, proof beyond a reasonable doubt. I interpret this for juries by telling them they would have to be comfortable saying that they know something for a fact. So, despite the appearance of what looked like an extremely violent blow, there are a number of problems with prosecuting the case. The reality, is that domestic assaults can be tricky, and prosecutors frequently have to deal with uncooperative victims There are no medical records which medically quantify the nature of Janay’s injuries, and Janay refused to cooperate with investigators. We can speculate that she had a concussion, or even that she may have had some type of minor maxillofacial fracture, (which would likely have qualified as serious bodily injury) but without medical reports or her testimony the nature of her injuries remain just that, speculation. As we all know, appearances can be deceiving, and without solid facts, raising reasonable doubt in a situation such as this is all but a certainty for a quality defense attorney
The Atlantic County Prosecutor’s office may have realized they were in a no-win situation, and that no matter what they did they would be criticized. But what they did was praiseworthy. They recognized the truth, which was the horrendous nature of the assault, and they also recognized the weaknesses in their case. The solution was genius in its simplicity. Charge the more serious Aggravated Assault, and then allow him to enter the Pre-Trial Intervention program. PTI is a diversionary program which allows first time offenders to keep a clean record if they remain conviction free for a determined period of time. An applicant will essentially be put on probation for up to two years during which time the charges will be held in limbo. If there is no further legal trouble during the period of probation, the charges will be dismissed. If there is criminal activity during the period of probation, the person gets kicked out of the program, and must defend themselves against the original charges which are then prosecuted in the normal track. The prosecutor has vast discretion about who qualifies for entry into the program, and many complicated legal cases are resolved in this fashion. Allowing Ray rice into the PTI program accomplished several things. Bringing the more serious charges sent a strong message about how serious the prosecutor’s office determined Rice’s actions to be, and it allowed them to keep an eye on him during a probationary period during which time he must attend anger management counseling. It is my professional opinion that all parties concerned were confident that Rice would be counseled to accept PTI for Aggravated Assault. Though he probably would have prevailed in a trial on the indictable offense, he would likely have been convicted of a domestic Simple Assault, the lesser included offense.
Rice Case: purposeful misdirection by team, scant investigation by NFL, ESPN.com, September 21, 2014
Wife Defends Ray Rice, Slams Media, ABC13 Eyewitness News, September 9, 2014