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The 24 cases pending against Browns quarterback Deshaun Watson will be resolved via 24 trials. In each of those trials, a key question of evidence will need to be addressed. And the answer will dramatically impact the length of each trial.

How much, if any, evidence of the other claims made against Watson will be admissible in each trial?

During Friday’s interview with Sports Radio 610 in Houston, attorney Rusty Hardin addressed that complication, within the context of whether they believed that the trial of the claims made by Ashley Solis could happen between mid-July and the start of training camp. (The parties have agreed that there will be no trials between August 1 and March 1.)

“We’ll do Solis if you will agree that you’re not going to try to introduce the evidence of the other 21 in this trial and let the allegations and the evidence stand alone on this one case,” Hardin said regarding his communications with attorney Tony Buzbee. “Because if you’re going to try to get all these other cases in to poison the water and the judge rules that you can, there’s no way these cases will not take several months to try. . . . You would have like 21 mini-trials.”

Hardin said Buzbee wouldn’t agree to that. Which means that a ruling from the trial judge in each case will be necessary as to whether evidence of other allegations can be introduced in any, some, or all of the cases.

It’s an issue arising squarely under what’s widely known as Rule 404(b) of the various rules of evidence, federal or state. Rule 404(b) generally prohibits evidence “of any other crime, wrong, or act . . . to prove a person’s character in order to show that on a particular occasion the person acted in accordance with the character.” In other words, evidence of other allegations against Watson can’t be used for the purposes of arguing to the jury, “If he’s accused of doing it in all these other cases, he must have done it here.”

Rule 404(b) contains a key exception: “This evidence may be admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident.”

That’s where Buzbee may have an opening. He’ll argue not that he’s using the other claims in an effort to get the jury to think that, for example, 24 people can’t all be wrong or lying or conspiring (although it’s a key collateral benefit) but that the claims go to the question of Watson’s motive, intent, preparation, plan, the absence of mistake, and/or the lack of accident.

For example, to the extent that Buzbee will try to prove that Watson arranged massages with so many different women with the intention that those massages would become sexual and the plan to try to make that happen through his words and actions during the massages, that evidence would go directly Watson’s motive and intent in arranging each of the sessions.

Hardin’s best practical argument against 404(b) evidence is the threat/promise of the 21 mini-trials! No judge wants to preside over a case that spirals out of control, with multiple other plaintiffs testifying and being cross-examined and a one-week trial literally requiring, as Hardin said, several months. Each trial could potentially become as convoluted as the Seinfeld finale.

That said, there’s surely a more economical way to do it. The answer could be driven by the specific defense that Watson, through Hardin, employs. If Watson ultimately admits (as Hardin seemed to do on Friday) that he arranged massages with the hope that they would become sexual and that he tried to steer things that way, the fact that he allegedly crossed the line with others becomes less relevant. If, however, Watson tries to say that he had no desire or plan or motive or intent to secure any sexual activity under the guise of a legitimate massage and that any conduct suggestion otherwise was a mere mistake or accident, the door flies open to Buzbee’s ability to show out often Watson engaged in that supposedly accidental behavior.

For example, if an alleged shoplifter claims that a candy bar fell into his pocket when he accidentally brushed against the display, the fact that he had been accused by 23 other stores of shoplifting and used that same defense in every single instance makes the other claims relevant to proving that there was no accident.

That’s why Hardin’s comments from Friday are so important. Even though he won’t be testifying at trial, he’ll be the architect of the defense. At some point, he’ll need to put his cards on the table. Will Watson admit he was hoping the massages would become sexual and that he actively tried to make that happen? Or will Watson insist that he did nothing of the sort, ever? Those and other specific strategies will shape the question of whether Rule 404(b) evidence eventually is allowed at one or more or all of the trials.

There’s another important wrinkle here. The ruling made in the first of the 24 cases quite possibly will be appealed through the Texas court system. The judges presiding over the other 23 cases may decide to press pause on all of them until the appellate process is resolved and a conclusive answer is obtained. This would delay the entire litigation by months, if not years.

So, yes, Watson should have settled these cases last April. Or last October. Or in March, when he was traded to Cleveland. Or right now.



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