What’s Behind the Referral of Johnny Manziel’s Case to the Grand Jury and What Action Will the NFL Take?

Johnny Manziel has always had a penchant for attracting controversy. But this time around, he’s bound to receive the type of punishment that he’s been able to elude since his days at Texas A&M. Or is he?

The Events of January 30

During the early morning hours of January 30, Johnny Manziel and ex-girlfriend Colleen Crowley were involved in an altercation in Dallas that continued during a 30-mile drive west to Fort Worth. The incident, which is detailed in Crowley’s affidavit, began when Crowley met up with Manziel in his room at the Hotel Zaza in Uptown Dallas around 1:45 a.m. According to Crowley’s affidavit, the two began arguing about another girl “who had caused us problems in the past.” Crowley says that she decided to leave, but Manziel restrained her and “led” her down a back stairway to the valet area. They drove in Manziel’s car to a bar where Crowley’s car was parked and got in her car. Crowley then jumped out, but Manziel allegedly dragged her by the hair back to her car. Crowley alleges that Manziel then slapped her on her left ear so hard that it ruptured her eardrum. Crowley tried to hit Manziel, but he was able to throw her off, and she hit her head on the car window.

Manziel began driving Crowley to her apartment in Fort Worth. On the way, Crowley says that Manziel said he was going to drop Crowley off and commit suicide. Manziel also threatened to “kill us both.” When they arrived at Crowley’s apartment in Fort Worth, the argument continued. Manziel allegedly smashed Crowley’s cell phone, and Crowley pulled a knife on Manziel, at which point he ran out of the apartment. Crowley then went to a neighbor’s apartment and asked for help. Fort Worth police were called to the scene.

Police Investigation and Crowley’s Protective Order

The Fort Worth Police Department’s report suggests that police arrived on scene around 5:30 a.m. Curiously, the report states that Crowley “became increasingly uncooperative” during the officers’ investigation, and that she did not want to make a statement, fill out a report, or have her injuries photographed. The report clarifies that it was an “information only report” that did not accuse Manziel of a particular crime because Crowley refused to fill out a report and because the alleged assault occurred in Dallas. A source told ESPN that Crowley stopped cooperating with the police because she feared Manziel was suicidal.

According to the Fort Worth PD’s press release issued on January 30, the investigation suggested that a domestic assault may have occurred. However, the police were “unable to locate a crime scene within the Fort Worth jurisdiction,” meaning that Fort Worth police believed any crimes committed occurred in Dallas and not Fort Worth. Fort Worth PD passed the report and its information on to the Dallas Police Department.

On February 4, the Dallas Police Department issued a statement saying that it had investigated the incident, but its efforts had not resulted in the filing of a criminal complaint and no further statement was expected at that time.

However, the Dallas PD reopened the investigation when Crowley filed for a protective order  in a Tarrant County court.^[1] A protective order is different from a restraining order in that it is issued by a civil court under the Texas Family Code rather than by a criminal court. A protective order is only granted by a court if it is determined after a hearing that family violence has occurred and that family violence is likely to occur in the future.

It appears Manziel agreed to and signed the order, thereby precluding the need for a hearing. The order prevents Manziel from seeing Crowley for two (2) years, requires him to stay at least 500 feet from her home or place of work, and requires him to pay $12,000 in legal fees. Manziel’s decision to agree to and sign the protective order may have been motivated by a desire to avoid a finding of family violence, though we can’t be sure since the order itself is sealed by the court. This may have allowed him to avoid certain requirements imposed by Texas law on a person who is found to have committed family violence. It is also possible that both Crowley and Manziel wanted to avoid reliving the events of the night by having to testify at a hearing.

Grand Jury

On February 25, the Dallas PD concluded its investigation and referred the case to the Dallas County District Attorney’s office for “presentation to a grand jury.” The police classified the case as a Class A misdemeanor assault, which carries a maximum penalty of one year in jail and $4,000 fine.^[2] The date of the grand jury proceedings are not listed on the Dallas County website, and a representative for the grand jury division of Dallas County said she could not provide information about the grand jury proceedings.

According to prominent Dallas criminal defense attorney Danny Clancy,^[3] a grand jury in Texas is made up of 12 people appointed by a judge who serve 3 month terms. A grand jury’s proceedings are secret, and only certain individuals may be present, including the district attorney and witnesses, which will likely include Crowley and the police officers who investigated the incident. Manziel is not entitled to be present at the grand jury proceedings, though he could be invited. If he is invited, his attorney will not be present.

To return an indictment against Manziel, nine of the 12 grand jurors would have to find that there is probable cause to charge him. This means they would have to determine that it is more likely than not that Manziel committed a crime, which is an easier standard to meet than the unanimous “beyond a reasonable doubt” finding required at trial.

According to Clancy, it is “very unusual” for a misdemeanor case to be referred to a grand jury. While felony cases are always presented to a grand jury after a police investigation, a misdemeanor is almost never referred to a grand jury. In fact, a domestic violence information pamphlet on the Dallas County District Attorney’s website states that the district attorney determines whether to accept or decline prosecution of a misdemeanor and doesn’t even take into account that a grand jury could hear a misdemeanor domestic assault case.

It is not clear why Manziel’s case is being presented to a grand jury. However it does seem apparent that someone is trying to pass the buck to the grand jury, whether it’s the Dallas PD or the district attorney’s office. Why? Possibly because of Manziel’s celebrity, which is what many will argue. However, I think there is a strong possibility that Crowley is an unwilling participant in the investigation and proceedings against Manziel. We know that Crowley became uncooperative and refused to fill out a police report at some point during the Fort Worth PD’s investigation. The report also states that Crowley became “concerned” about something, but that something is redacted from the available report. ESPN’s source would have us believe that Crowley was concerned Manziel might commit suicide, so it seems possible Crowley is worried about the effect a domestic violence charge could have on Manziel. But it is also possible that she just wants to put the matter behind her and move on rather than being dragged through additional investigation and trial.

Whatever the reason for the delay, we won’t know what Crowley says in front of the grand jury. We won’t know what evidence the district attorney presents to the grand jury, what arguments are made, or who the grand jurors are. Sending the case to the grand jury can appear to a layman like the police and DA did everything they could to secure an indictment against Manziel. But what the referral really does is insulate the DA from scrutiny regarding the effort she and her office put into securing an indictment against Manziel, while still protecting the actual people who made the decision (i.e. the grand jurors) since their identities are not revealed.

NFL Investigation and Discipline under the Personal Conduct Policy

Assuming Manziel is able to sign with another team after being released by the Browns, a suspension will almost certainly be forthcoming. Goodell and the NFL have cracked down hard in recent years on players involved in domestic violence incidents, and there is no reason to believe Manziel’s situation would be any different, regardless of whether he is charged and convicted.

In the aftermath of the Ray Rice, Adrian Peterson, and Greg Hardy domestic violence controversies, the league implemented a new Personal Conduct Policy which clarified how the league would deal with incidents of domestic violence committed by anyone associated with the league. The Policy, which was adopted in December 2014, sets forth a step-by-step process  for league action when a violation is suspected.

Under the Policy, the League’s investigation could run concurrently with Dallas County’s investigation and law enforcement proceedings, or the League could decide to suspend its investigation to avoid any interference with law enforcement officials. The League has already announced that it is investigating the incident, but that could change if Manziel is charged and the criminal case is prolonged.

If there were any chance that Manziel was going to be with the Browns after March 9 (note: there isn’t), being charged with assault by Dallas County would cause Manziel to either be placed on paid leave or on the Commissioner Exempt List until the NFL has completed its investigation and determined appropriate discipline.

Once the League’s investigation is complete, Manziel will likely receive a six-game suspension since, under the Policy, violations involving domestic violence result in a “baseline” six-game suspension without pay. Aggravating factors could increase the length of Manziel’s suspension, but none of the factors appear to apply here.[4] The League may rely on information obtained by Fort Worth and Dallas police, as well as court records, or independent investigations conducted at the direction of the NFL.

You may be wondering if any suspension Manziel receives would likely be reduced or dismissed, as was the case with Ray Rice, Greg Hardy, or Tom Brady. There is an important difference in Manziel’s case. Rice, Hardy, and Brady had valid arguments that they did not have notice of the policies or applicable punishments when they allegedly engaged in prohibited conduct. The difference here is that the Personal Conduct Policy under which Manziel would be disciplined was in place long before the night on which Manziel allegedly assaulted Crowley. For that reason, Manziel can’t possibly argue that he did not have notice of the potential penalties for his conduct. Manziel could adopt the NFLPA’s argument that the Policy is invalid because it was not negotiated as part of the collective bargaining process. But that’s a long shot, and it’s not even clear if the NFLPA is still pursuing that claim against the NFL.

NFL teams will likely be wary of signing Johnny Manziel after this latest incident, so it would seem that Manziel has a long road ahead of him if he ever wants to play in the NFL again. He would do well to take advantage of the evaluation, counseling, and treatment programs now available on the League’s dime under the Policy. Otherwise, there’s a high likelihood that Johnny Football will go the way of fellow first round draft pick Ryan Leaf.

^[1] Fort Worth is located in Tarrant County.

^[2] A Class A misdemeanor assault is defined as a “intentionally, knowingly, or recklessly caus[ing] bodily injury to another”. Tex. Pe. Code §  22.01(a)(1). Bodily injury is defined as “physical pain, illness, or any impairment of physical condition.” Tex. Pe. Code § 1.07(a)(8).

^[3] http://www.danielclancy.com/

[4] See page 6 of the Personal Conduct Policy for aggravating factors.