Should we believe that the NFL career of DeAndre Baker is, for all intents and purposes, already over as he faces felony charges in relation to an armed robbery that allegedly occurred last Monday? Should we believe the more optimistic and indignant “he’s innocent of all charges” claims coming in recent days from his attorneys?
The legal proceedings regarding the charges against the 22-year-old New York Giants cornerback are really only just beginning, with a resolution somewhere off in the distance. To help us understand what is happening, what it means, and what might be coming I turned to Daniel Wallach, a legal analyst for The Athletic. Wallach’s law firm, Wallach Legal, LLC, is based in Hallandale Beach, FL., which means Wallach knows the Florida laws under which Baker could be prosecuted.
The possible prison time he faces
Baker faces eight counts, four for armed robbery and four for aggravated assault with a firearm. Florida law includes a 10-year sentence for a first-degree felony conviction. Does that mean Baker is facing 80 years in prison if convicted of all charges?
“Generally, charges like that if they stick and he’s convicted the sentences will run concurrently rather than consecutively,” Wallach said. “So instead of serving 10 years times five convictions equal 50 years he’ll serve the maximum if he was convicted of the highest count.
“But whether it’s concurrent or consecutive if he’s convicted you’re never going to see him on a football field again.”
About that $200,000 bail
Baker was freed Sunday on $200,000 bond, $25,000 per count against him. There has been some speculation that bond of this amount for a player who signed a four-year, $10.525 million contract that included a $5.675 million signing bonus after he was drafted indicates weakness in the prosecution’s case against Baker. Not so fast, according to Wallach.
“In New York that might very well be the case, but in Florida legal experts who practice in the area of criminal defense law tell me that that is not to be read as sort of a silver lining on DeAndre Baker’s case. To read nothing into the $200,000 bail,” Wallach said.
“At least superficially when you consider that an athlete who received a near $6 million signing bonus is released on $200,000 bail that certainly suggests that the case might be weak. But that’s not how it works in Florida. I’ve been told by a number of different legal experts who specialize in that area to read nothing into that aspect of it.”
Should there be some optimism for Baker?
Our legal system is built on the presumption of innocence, with the burden of proving a person’s guilt falling on the prosecution. Yet, in the public eye, there is often a rush to convict. To assume or assign guilt without knowing the facts or allowing the justice system to fully play out.
That has, of course, been the case with Baker. Attorneys for the 22-year-old have proclaimed his innocence in recent days and spun a story of Baker being a mark for others in this scenario because of his status as a first-round NFL draft pick.
“There might be optimism for his future because Baker and [Quinton] Dunbar did one very smart thing. They retained effective counsel immediately and then those lawyers began to pile up witness statements from every witness that was at the party that was willing to cooperate to basically recant all of the testimony that they had given to the Miramar Police Department,” Wallach said.
Those statements given to the lawyers, per Wallach, could do a great deal to damage the cases against Baker and Dunbar.
“A sworn statement taken by a lawyer is going to carry more weight than an interview conducted by a police officer where the witness didn’t swear to it under oath. So the case(s) against Baker and Dunbar have been compromised by virtue of how smooth and sharp that these lawyers were in getting in there right away to get the witness to change their stories,” Wallach said.
“It’s a byproduct of two things. The value of effective lawyering and No. 2 this police department in Miramar which is a relatively small city didn’t do a good enough job of locking these witnesses in and their case may be cratered as a result. So, I think the outlook does look much better today for DeAndre Baker and Quinton Dunbar than it looked two days ago. I’ve never seen such a turn of events in a criminal case in less than 48 hours.
“I think the police may have overcharged and oversold this if the witnesses’ most recent statements are truthful.”
Police vs. witness statements
I asked Wallach to clarify the point about the impact a signed police affidavit vs. that of statements signed by witnesses or given under oath punishable by charges or perjury if proven knowingly false.
“It would be a crime to lie to a police officer, but I believe that the probable cause affidavit submitted to the court was signed by the police officer as the affidavit giver, they call it the affiant. The signed, sworn affidavit is given by the police officer based upon his recollection, first-hand knowledge of the interviews that he conducted with the witnesses at this party,” Wallach said.
“You can bet everything that these defense attorneys on the other hand took witness statements and had the witnesses swear to it under oath in the presence of a notary public or under penalty of perjury. If you’re going to look at the value of two different types of statements I think you’ll always take sworn testimony over sort of second-hand recollection of what the witnesses told the police officer.”
Wallach said night of party statements given to police could be “most reliable, but they’re not sworn statements.
“That creates a problem for the Miramar Police Department and the Broward’s County Sheriff’s Office prosecution of these two players because the witness testimony they’re relying upon to convict these two players have now been compromised.”
“In order to sustain or to get a conviction in a criminal setting you need proof beyond a reasonable doubt … when there are witnesses who have recanted their testimony that almost negates, it does negate proof beyond a reasonable doubt. A jury could choose to believe whichever of the two stories they want to believe, but certainly, a sworn witness statement that’s more recent in time carries a lot of weight.”
When will Baker’s case be resolved?
The short answer is, probably not for a long time.
“We’re in the middle of a pandemic. While large segments of Florida are reopening the courts are holding virtual sessions, videotape hearings, there’s no question about the fact that the timeline on both criminal and civil cases has been elongated,” Wallach said.
“I don’t think we’re looking at any resolution of these two criminal cases until at least after the 2020 regular season has concluded if it ever does start on time and take place. Short of a guilty plea or a no-contest plea or the prosecution dropping the case entirely were this to go to a trial in front of a jury the earliest it could potentially take place would be in 2021 if not 2022. So I wouldn’t expect any swift resolution of this matter.”
So, could Baker be available to the Giants in 2020?
Wallach said that decision is likely not going to be made by the Giants.
“The team does have remedies (cut/inactive list), but in all likelihood, the National Football League will be making the initial determination as to whether Baker can play a game for the Giants this season and unless the prosecutors drop the case entirely I don’t see that there’s any way that Baker will be playing a National Football League game in 2020 while there are felony gun charges hanging over his head,” Wallach said. I think [Commissioner Roger] Goodell would place him on the Commissioner’s Exempt List at the earliest possible stage while the criminal case is still going on.
“It would be a black eye for the league to have a player who’s facing felony gun charges suit up for a National Football League game. Roger Goodell will never let that happen.”
Wallach pointed out that Goodell does not have to wait for the legal system to play out, adding that by invoking the league’s personal conduct policy the commissioner could “just act on the witness interviews that are already available.”
“They have a little bit of evidence to go on right now and that might be enough to justify suspending them.”
Wallach said the newly-agreed upon Collective Bargaining Agreement gives Goodell the right to act without needing to wait for a conviction.
“The standard of proof [for the NFL] isn’t proof beyond a reasonable doubt it’s whether credible evidence exists to justify the imposition of a suspension. Credible evidence is as low a threshold as you’ll ever get in the law. It just means that you need some evidence that these players committed the acts in question,” Wallach said.
“You already have the arresting officer’s probable cause affidavit that recounts witness interviews that place Baker at the scene of the crime holding a gun, threatening to shoot somebody. If Roger Goodell wanted to suspend DeAndre Baker solely on the basis of that police officer’s probable cause affidavit he has every right to do so under the new Collective Bargaining Agreement.”