How would the courts have treated a protest of Angel Hernandez's call?


I'm finishing my second-year as a law student at the University of San Francisco, and I figured I would procrastinate just a little bit longer at finishing my Income Tax exam studying with a post about Angel Hernandez's blown home run call in Wednesday's A's-Indians game. For those people who are reading this from my link from Facebook and are not necessarily baseball fans, a little review: Hernandez, as the second base umpire and as the crew chief that day, twice ruled a ball that should have been called a home run as in play, a double resulting. First he did so on the field of play, and the second after viewing a replay. Everyone, including Major League Baseball, agrees that the replay clearly shows the ball hit a railing above a yellow law which by ground rule is considered a home run.

However, Major League Baseball declined to reverse the decision, as the decision of whether a ball went above or below a line is a judgment call, even if reviewable on replay. Baseball does provide for a procedure to protest a game, but MLB strictly refuses to reverse "judgment calls," only reversing umpire errors that stem from incorrectly applying a rule, and only if those errors had a significant chance to affect the result of the game (see Angels v. Astros, May 9, 2013 (misapplication of rule requiring Astro's substituted pitcher to face at least one batter not reversed as moot, as Angels won the game)). A successfully protested game is resumed from the point of the error.

The law has a similar concept in terms of appealing the decisions of a trial court. Legal questions are divided into two categories, questions of law and questions of fact (there is a third category of "mixed questions of law and fact" which I need not get into). In the context of a jury trial, the entity that decides question of law is the judge, and the entity that decides questions of fact is the jury (as the trier of fact). This is why a jury is instructed on the law by the judge, but it is up to the jury to decide how the facts it finds fits into the judge's instructions.

On appeal, each of these determinations are reviewed under two different standards. Questions of law are reviewed de novo by an appeals court, meaning the appeals court decides these questions as if they were the court of first instance, with no deference to the decision of the trial judge. Questions of fact, however, are reviewed with extremely high deference to the findings of the jury. An appeals court will only reverse the findings of the trier of fact if there is no evidence that was put before it that would support a rational jury finding in the way it did. However, a reversal of the findings does not necessarily mean a reversal of the judgment. The appeals court may find that despite an error (in either law or fact), the case still would have resulted in the same way, a concept known as "harmless error."

And so we turn back to baseball. In the case of the Angels-Astros game on Thursday, there was an error in law, which baseball has acknowledged and taken public steps to admonish the umpires involved, including fining the umpires and suspending them for two or three games. If we change a fact, like, the Astros were already leading by 15 runs late in the game and ended up winning, MLB could find there was error, but it was not of a magnitude that would have changed the result.

In the case of the A's-Indians game on Wednesday, MLB does not provide for any way to reverse an on-field "judgment call," which is analogous to a "question of fact." Most of the time, this is not a big deal. There was a memorable incident a few years ago in which umpire Jim Joyce, umpiring first base, incorrectly ruled a batter safe instead of ruling the batter out for what would have completed a perfect game. This was not a reviewable play, and MLB declined to reverse the on-field call just to award a statistical perfect game.

However, let's consider this question of fact the way an appeals court would. An appeals court would first note that questions of fact are reviewed to determine whether any of the evidence presented to the umpire could rationally support the finding of "OUT." In this case, Jim Joyce had only what he could see on the field, which was complicated by being slightly out of position to see the out cleanly and also the pitcher slightly bobbled the ball.

Note that the appeals court can't consider replays because Jim Joyce didn't get to see replays. Similarly, trial courts also have Rules of Evidence that limit what juries get to see (you may recall that one of the common responses to the not guilty verdict in the Casey Anthony trial was that the jury didn't get to see what the rest of us got to see) for certain policy reasons (sometimes because the evidence would only confuse the jury or would waste time). One of the reasons for limiting replay in baseball is that replay review takes time in a game where one of the common complaints is that the game takes too long. The appeals court in our Jim Joyce scenario can only consider what Jim Joyce would have been able to see, and so appropriately, there would never be a situation where an unreviewable judgement call would be reversed.

However, consider Angel Hernandez and the blown home run. An appeals court again would note that Hernandez's call would be sustained unless there is no evidence supporting Hernandez's finding. What Hernandez saw on the field was forgivable because it was a live action play, and on television it was unclear in real time whether the ball was a home run or not. However, Hernandez had another piece of evidence available to him, the replay review permitted under the rules. An appeals court could easily rule, as many sportswriters have, that they cannot comprehend how Hernandez and the other two umpires at the replay review box could have missed the clear video evidence that the ball changed direction on the railing above the yellow line separating a ball in play (called on the field) from a home run. So we have error. Then the appeals court would ask, is the error harmless? Absolutely not, a home run in this case would have tied the game in the top of the ninth inning. The result of the error left Oakland batter Adam Rosales at second base, and after the Indians walked two more batters, they got the third out without conceding a run, winning the game.

This gets us close to answering one common question for these "judgment call" scenarios, "Where do you draw the line?" One draws the line at the same point our courts do, when an umpire's fact is plainly unsupported by the evidence available to him under the rules, and plainly would have given the team wronged by the error and clear chance to win. One might even limit such reviews to the ninth innings of games, or even further limit such reviews to situations where the score clearly would have been tied or the wronged team would have taken the lead. In the matter of Athletics vs. Indians, reverse and remand for a re-trial from the ninth inning, two outs, tie score, Eric Sogard at bat.

Some dicta, if I might. Angel Hernandez, in his brief remarks to Oakland Athletics beatwriter Susan Slusser, said in affirming his on-field decision, "It was not evident on the TV we had that it was a home run. … I don’t know what kind of replay you had, but you can’t reverse a call unless there’s 100 percent evidence." In the California Law Review, Professor Mitchell N. Berman, Professor of Law at the University of Texas in Austin, writes a fascinating discussion about his belief that the requirement for "indisputable video evidence" which entrenches on-field calls against replay review in the NFL and proposed in other sports is too high a standard. Worth a bedtime read.

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