Fred Bright, the district attorney for the Ocmulgee Judicial Circuit in Milledgeville, Georgia, said that he’s in the business of prosecuting people when there’s proof beyond a reasonable doubt.  When there’s not, his duty is to do justice, not seek a conviction anyway.  Bright said the right thing in explaining why he would not be prosecuting Pittsburgh quarterback Ben Roethlisberger.

Whether Bright would have said that had it been someone with a last name that was easier to spell is hard to say.  Information about the Milledgeville prosecutor isn’t at my fingertips, and I would no more suggest that Bright isn’t true to his word than I would that Ben raped a 20 year old coed in the small bathroom.

Let’s get this straight off the top.  Roethlisberger is innocent of rape.  He did not commit the crime.  Yet this post will continue, as there’s more to consider.

In the scheme of the criminal justice system, the failure of the prosecution to be capable of, or willing to, convict an individual brings any and all claims of criminality to a close.  That doesn’t mean that the individual who might otherwise have been called defendant is now free to roam the country in search of small bathrooms.  From the New York Times :

Roethlisberger will meet with [NFL Commissioner Roger] Goodell on Tuesday, the league spokesman Greg Aiello said. Bright gave Goodell and Rooney plenty of tawdry and troubling details gleaned from the investigation to consider when pondering whether Roethlisberger should be disciplined.

The story is this:

Bright said the woman and Roethlisberger had been drinking and had met at different bars in Milledgeville during the evening. Some of their conversations were of a sexual nature, Bright said. Roethlisberger’s group ended up in the V.I.P. area of one club, and when the woman and her friends arrived, he invited them to join him and bought shots of alcohol.

Later, Bright said, one of Roethlisberger’s bodyguards escorted the woman down a back hallway and Roethlisberger followed her into a small bathroom, which Bright said was less than five feet wide.

What happened in that bathroom is unclear.  Was there sex? Was it a rape?  Does it matter given Roethlisberger’s feeding underage girls shots, and the particular young woman was highly intoxicated when she went to that small bathroom?  It clearly matters for the purpose of determining whether Roethlisberger should be prosecuted.  The successful conviction of a two-time winning SuperBowl quarterback would be quite the feather in any prosecutor’s cap.  That Fred Bright decided that he lacked the evidence to justify a prosecution speaks well of his discretion, and hopefully he exercises the same level of commitment to the burden of proof when it comes to every potential defendant.

But the question of what Commissioner Goodell should do is not guided by the burden of proof of a crime.  The rules of the NFL aren’t merely that its players not be convicted criminals, but exhibit a level of moral conduct that earns them the right to make millions of dollars, get seen every week on television and the opportunity to be a sports hero.  That falls not on the criminal side of the equation, but on the privilege side.

Ben Roethlisberger knew very well the glory of being a sports hero.  He also knew that he enjoyed the wealth and stature only so long as two things happened: He continued to play football well enough to earn a spot on the team, and he behaved himself in accordance with the NFLs rules.  It’s not much to ask for in return for all he received.

Given the lack of evidence of a crime, it’s right that Bright decided not to prosecute Roethlisberger.  Given the evidence, it’s right that Goodell deny Roethlisberger the privilege of being an NFL quarterback, at least to some extent. 

Nobody says that a guy who can throw a football with some great degree of speed and accuracy will necessary be a fine human being.  Certainly, the scouts who look for potential NFL players are more concerned with athletic skill than anything else.  Roethlisberger wasn’t given the position because he was an upstanding, mature individual, but because he was a premier quarterback.  But he knew the rules under which he labored, and knew that the big bucks as well as the hot chicks came with strings attached.  And to the extent that there was any doubt in Ben’s mind, his first run in with the morals clause in Lake Tahoe, 2008, should have dispelled them.

Fred Bright doesn’t prosecute morals.  Roger Goodell does.  There’s a price to pay for playing in the NFL, and there’s no reason why Ben Roethlisberger shouldn’t be charged for the privilege.