Georgia DA: 'Don't Even Have Probable Cause'

Ben Roethlisberger (Getty Images)

Georgia District Attorney Fred Bright announced there will be no charges filed against Ben Roethlisberger for his actions on March 5. The transcript follows [UPDATED with Q&A]:

Fred Bright, District Attorney of Ocmulgee Judicial Circuit in Georgia:

As district attorney, I'm responsible for all criminal prosecutions in the Superior Court of Baldwin County, the only court that has jurisdiction of all felonies here in Milledgeville. The duty of a district attorney is to always seek justice, not merely to convict. When we have solid evidence of a crime, and can prove a defendant's guilt beyond a reasonable doubt, we do that. Just as important, when we cannot prove a defendant's guilt beyond a reasonable doubt, we admit it and do not prosecute the crime.

As you know, for the last month the Georgia Bureau of Investigation and the Milledgeville Police Department have been investigating a sexual allegation regarding Ben Roethlisberger. They have completed their investigation, turned over the reports to my office, which we have reviewed thoroughly. The sexual allegation against Mr. Roethlisberger cannot be proven beyond a reasonable doubt; therefore, there will be no arrest made, nor criminal prosecution, of Mr. Roethlisberger for his actions here March 5th, 2010.

The facts as they appear from our investigation are essentially these: On the evening of Thursday, March 4, and going into after midnight on Friday, March 5, Ben Roethlisberger was bar-hopping with his bodyguards and friends here in Milledgeville, Georgia, and attracting a crowd wherever he went. And his victim was bar-hopping with her sorority sisters. Both parties had been drinking alcohol prior to meeting each other. They did not know each other before this evening, but did meet at different bars throughout the night. They participated in conversations, some of a sexual nature. After midnight, Mr. Roethlisberger and his entourage were at the Capital City Club and the manager let them use the V.I.P. area. The victim went with her sorority sisters to the nightclub later. Mr. Roethlisberger invited them into the V.I.P. area where he provided shots of alcohol for them. Everyone agrees that the victim was highly intoxicated due to consuming alcohol. One of the bodyguards guided the victim down a back hallway. Mr. Roethlisberger followed her down the hallway into a small bathroom. The issue is what happened in that small, less than five-foot-wide, single-commode bathroom, between Mr. Roethlisberger and the victim. Significant questions about what occurred persist. A report was made to law enforcement immediately. Initial interviews were conducted. The victim was driven by a friend to the Oconee Regional Medical Center, the local hospital in Milledgeville. An emergency-room doctor and two nurses examined her. Noted in their report was a superficial laceration and bruising and slight bleeding in the genital area. Everything else in the medical examination was normal. The doctor stated that he could not say these were or were not from any kind of trauma or sexual assault. A standard rape evidence kit was collected. The doctor found no evidence of semen or discharge. The swabbings from the rape-evidence kit were tested by the Georgia Bureau of Investigation crime lab in Atlanta, Georgia, and the initial testing found human male DNA present. Additional extensive testing was done, but because the sample was so minute it would not yield a profile. The crime lab advised that extracting DNA from Mr. Roethlisberger at this point was futile due to the fact that no profile was available from the minute male DNA sample submitted in the rape-evidence kit. Hence, that is when Mr. Roethlisberger's attorney was informed that no buccal-swab samples for DNA would be needed from his client anymore.

The crime that was being investigated was rape. Under our official code, section 16-6-1, the elements of rape are having carnal knowledge – that means having sexual intercourse, which requires penetration – of a female forcibly and against her will. In this judicial circuit, we have always strongly held that a woman has a right to be safe from attack, but every case must be viewed in the context of its circumstances. Here, the overall circumstances do not lead to a viable prosecution. If they did, I would pursue it vigorously. We are not condoning Mr. Roethlisberger's actions that night, but we do not prosecute morals, we prosecute crimes.

Almost four weeks ago, in a letter to me dated March 17, 2010, the victim's lawyer advised me that the victim did not want to prosecute this matter further, and explained her reasons in a letter that will be available to you today. The Georgia Bureau of Investigation, the Milledgeville Police Department, and I, personally met and spoke with the victim herself, her family and her attorneys 10 days ago and they all unanimously reconfirmed their position that they did not want to pursue this matter any further.

Before making any decision, we have made a point to have the clearest, most accurate record possible of what occurred. Law enforcement officers interviewed every witness that the victim or her friends told them was present that night. They also interviewed every witness that Mr. Roethlisberger's associates provided as being present. They spoke with everyone they could find who may have known something about what happened the night of this incident, regardless of their relationship or affiliation.

You should have no question that who Mr. Roethlisberger is made no difference. If he was Joe Q. Citizen that was poor and had the local public defender, or no lawyer at all, the result would be the same. We have been intent on insuring that he, like every defendant in our court, and she, like every victim we serve, receives the benefit of a complete investigation and a fair evaluation.

When I was sworn in as a prosecutor 28 years ago, my father, who was also a lawyer, offered me some sound advice. He told me to prosecute wrongdoing when I could prove it beyond a reasonable doubt, and when I can't, just admit it and not prosecute the case. I have always taken that advice and my oath seriously. So, after a thorough review of the law and facts, Mr. Roethlisberger's case will not be prosecuted. I will be glad to take any questions that you have.

Q: You say something did happen, but you just can't prove it. Would that be accurate?

A: I can't prove it beyond a reasonable doubt, a crime. If I did, I would do so, and I'm admitting to you I can't. Something may have happened, but that's not a conviction.

Q: Did her wish not to prosecute have any bearing on your decision here today?

A: Yes it made it easier, but had she not written and taken that position, the victim, her family, and her lawyers, that they did not want us to prosecute the matter at all – and they made it crystal clear in the letter – an honest answer is I would still be announcing the same result. We, based on the evidence here, don't have enough evidence to prosecute. I know when I have a case and I know when I don't, and I do not have enough evidence to convince 12 jurors beyond a reasonable doubt that Mr. Roethlisberger would be guilty of the crime of rape. The final line in a jury trial is when, with pride in my voice, I point my finger at the defendant and explain to the jury how I proved that defendant's guilt beyond a reasonable doubt. And if I were on the jury, I'd say ‘Nice try Mr. Prosecutor, but based on this evidence, even without that letter, you don't have it here. You didn't prove the crime of rape beyond a reasonable doubt.' I would not even convict the defendant.

Q: What about probable cause though?

A: I live in the world of ‘beyond a reasonable doubt.' An honest answer: It's debatable. If you want my candid feeling, looking at all the evidence here, we don't even have probable cause. Probable cause is the standard to make an arrest, and we did not have probable cause. No arrest was made in this case, so there's no warrant to dismiss. We didn't even have probable cause in this case.

Q: Did you see the videotape before it was erased? Did it have an effect on this case?

A: Zero effect. The incident happened at Capital City Club in a small, dingy bathroom in what they call the back area, the V.I.P. area. There's obviously no camera in the bathroom, and there's no camera in the V.I.P. area. As far as it being erased, it really wasn't. Technology's really not my thing, but they had viewed it. They had viewed portions of it. But there's no camera that would've shed any light one way or the other on anything relevant. There are some surveillance cameras, and they do show – and they have seen them – Mr. Roethlisberger and his party coming in first; the victim and her sorority sisters came in later. But that's not in dispute. I've read all this stuff about this tape being erased. That really is a non-issue.

Q: Was there any evidence or lack of evidence that swayed your decision one way or the other?

A: The crime of rape has three elements: sexual intercourse, which requires penetration, forcibly, and against her will. All three elements, I've got a problem proving all three of those. It's not the DNA. It was human. We can tell it came from a male. And we can tell it's DNA. But that's all they can tell you. It's such a minute sample they said ‘Don't waste your time sending Mr. Roethlisberger's or anybody's DNA here. It will just sit in a bag. We can't profile it, compare it, to anybody.' DNA we can get through a search warrant, but there was no need to compare it to anything here.

Q: Have you talked to Roethlisberger since the morning of the alleged assault?

A: No.

Q: Why is that?

A: That's his choice. The night of the incident, he gave a very brief – this thing happened about 1:30 in the morning – and as it was closing up he gave a very brief statement. He has not given any statement since that time, and that's his choice. He, like every other citizen in our country, has the fifth-amendment privilege against self-incrimination. That's his right, just like it's everybody in this room's right.

Q: What did he say in his statement?

A: I'll answer what did she say and what did he say, OK? Let's start first with what did she say, and I'm not going to go into all of the salacious details. There's been a spectrum of her statements. Her immediate outcry, it was her sorority sisters. When she left the bathroom, she indicated to her sorority sisters, who were there, that she wanted to go home, and quite candidly it was her sorority sisters who were concerned and said, no, she didn't need to be back there with Ben because she was too drunk to be back there with Ben. It was her sisters' idea to go report this to the police. So it was immediately reported to the police. There are a lot of Milledgeville police working the streets where the bars are. This is a college town. And when they took her to the first officer, he said it was mostly the sorority sisters who were talking and there was a lot of confusion, and he could tell they were trying to report something; it sounded like sexual assault. And the first words out of his lips, the police officer's, he said, ‘Did he rape you?' And her response was, ‘No.' Next, the first officer said, ‘Did they have sex?' And she said, ‘Well, I'm not sure.' And then – and I'm giving you the spectrum here – we go to her first statement in her own handwriting, and I think it's still pretty clear she was still intoxicated at that point; this was down at the Milledgeville police station. And she said in her own handwriting, ‘I don't know if this is a good idea. He said It's OK. He had sex with me.' Then the progression will go to her second statement, in her own handwriting, and this is probably 12, 13 hours later, again at the Milledgeville police department. She's sober by now and coherent, and in her own words she said, and this is in her handwriting, ‘I told him it wasn't OK. No. We don't need to do this. And I proceeded to get up and try to leave. I went to the first door I saw, which happened to be a bathroom. He followed me into the bathroom and shut the door behind him. I still said no. This is not OK. And he then had sex with me. He said it was OK.' And I'll give you one more at the hospital: The doctors and nurses have in quotes, and this will be coming from the victim, ‘A boy kind of raped me.' I don't really want to go any further than that, but I'm trying to give a fair spectrum of the progression from the initial statement.

In the words of the first officer to whom the outcry was made in his initial incident report, ‘It is unclear as to what happened due to the complainant's recollection being foggy from her intoxication level.' Now getting back to the question of what he said. When the incident occurred, the first arresting officer phoned over to Capital City Club. He thought he had left – he being Ben Roethlisberger – but found out that Mr. Roethlisberger and his entourage were still there, so he told them to stay there. The first officer went over there and spoke to Mr. Roethlisberger and what was referred to as his agent. Mr. Roethlisberger's initial statement at the Capital City Club to law enforcement was, he said he remembered her ‘and I told her she was too drunk to be back here.' And then he said something about he remembered her falling and hitting her head. The victim, when she went to the hospital, never complained of any pain or any injuries whatsoever. After he said he remembered her falling and hitting her head, his agent, actually the PR person for the agency Mr. Roethlisberger uses, stepped in and said that he, Mr. Roethlisberger, won't be making any further statement without having an attorney present.

Q: Could you describe the conversation with the victim's mother and father when you told them the reality of the case?

A: Her lawyer contacted me prior to leaving for a vacation to Egypt and let me know point blank that she and the family did not want this matter prosecuted any further. I wanted to hear it from her lips and the lawyer didn't want me talking to her without him being there. That's normal. So we agreed until he got back from Egypt, and that occurred Friday, April 2. We all went up there. We met with the victim, her family, and her attorneys, at her attorney's office. I wanted her to tell me her wishes, and they made it crystal clear – all of them, the lawyers, family, and her – ‘Mr. Bright end this. We don't want this matter prosecuted at all.' She was a nice young lady. Nice family. They asked me to ask the media to respect their privacy. They want to be left alone, and I respect that. But we really didn't get into the details of the case. I discussed the case with her lawyer, the strengths and weaknesses, but I wanted to understand their wishes. They understand it's my decision to make. I'm solely responsible for this decision, but I do of course let all victims have input. They made it very, very clear not to prosecute this case.

Q: She was 20 years old. Will there be any prosecution for underage drinking?

A: No. We've pondered it and let me explain why. First of all, he, Mr. Roethlisberger, there's a crime called furnishing alcohol to a minor under 21, OK? And she, the victim, there's another crime called underage drinking. Both of these crimes are misdemeanors. Now, if we're going to prosecute one, we've got to prosecute the other.

Let's talk about him furnishing alcohol to a minor under 21. The only way we can prosecute him is through her testimony. As for her, she's gone through enough already. I think she has learned a lesson here. I hope a lot of people that were involved in this case learned some lessons that evening. And the truth of the matter is there probably was too much alcohol drinking by too many people that night. … As far as Mr. Roethlisberger goes, he was here to celebrate his 28th birthday and he can drink whatever he wants as long as he doesn't get behind the wheel of a car, and he had two non-drinking designated drivers, his so-called bodyguards. But Mr. Roethlisberger and some members of his entourage were drinking. Now my office normally prosecutes felonies here in the Superior Court of Baldwin County. Misdemeanors involving underage alcohol consumption normally don't come across my desk and are handled in misdemeanor lower courts here in Milledgeville, and this case has been an eye-opener to me. And I will be the first to admit that we, as a college-town community, just like other college towns across the country, need to be more proactive and do a better job in making sure that those under the age of 21 don't drink alcohol at all, and those over the age of 21 drink responsibly.

Q: At what point did she know who he was?

A: Their first encounter, if I'm not mistaken – again, there are four different bars or clubs – they call it The Velvet Elvis. They didn't know each other before this night, but when he came in town he attracted a crowd where, ‘Hey, that's Ben Roethlisberger.' This is a college town. All of these students have the cell phones and the text messaging. It got out pretty quick. Wherever he went, a crowd came. But to answer your question it was The Velvet Elvis. That's the first bar that they encountered each other.

Q: But she knew who he was, the quarterback of the Pittsburgh Steelers?

A: I don't know if she knew right away, but it became obvious right away, ‘Hey that's Ben Roethlisberger with the Steelers.' My recollection is one of her sorority sisters said she was a big Steelers fan. I think it was one of her sorority sisters that recognized right away, ‘Hey that's Ben Roethlisberger, the quarterback of the Steelers.'

Q: Could you talk about the report that one of his bodyguards possibly blocked the place off from her sorority sisters?

A: The Capital City Club has a main dance floor. They have a curtain you can move over and screen it off. They let him and his entourage use what they call the V.I.P. area. So he's got him and his eight, nine, 10 friends. They did say, ‘Let only girls back here. Let only girls back here.' Capital City did have one bouncer stationed in front of the black curtain. There were two bodyguards back there. There was just a lot of drinking and talking and socializing back there. The best from a prosecution point of view that we get is one of the – none of the bodyguards or anyone in the entourage talked about Ben being back there by himself with the victim, about any sex, about knowing of any sex, nothing like that – the best from our angle that we get is one of the bodyguards said the victim asked to use the restroom, that she has to use the restroom, and so she was escorted back there and sat on a stool. That's all he saw. He didn't see Ben go back there. None of the bodyguards or any of the entourage saw anything improper going on back there between Ben and the victim.

Q: But none of her party tried to get past a bodyguard to get back there?

A: One in her party had been ejected from the V.I.P. area – and you get different versions of it – but he'd been ejected it seems by Mr. Roethlisberger himself, and it's unclear as to why, or if he had said that. Two of her sorority sisters, what they describe is, ‘Hey, our friend is too drunk to be back there alone with Ben; we need to go get her.' And they say that – and I think they describe one of the bodyguards – the way they describe it is ‘he had his head down, wouldn't look us in the eyes, wouldn't say anything.' And then they went to get the manager of the Capital City Club and said ‘hey, she's in no condition to be back there with Ben,' and the manager made – and again, you get different comments – and the manager basically said, look, he's an NFL quarterback with the Steelers – something to that effect – he's not going to risk his career doing anything foolish. The manager – I spoke to him personally when he gave me a tour of the place – he told me he said he told one of the girls, or maybe both of them, there are two ways to get to this bathroom, and he told me, ‘I told one or both of them that if they wanted to go check on her they could go another way.' He says they didn't.

Q: You talked about your dad and his advice. Will this leave a bad taste in your mouth?

A: Everybody, I think, could be criticized for their actions that night. I hate to use this pun but I'm not trying to be a Monday morning quarterback. But there was too much drinking going on. If he were my son, the best way I can answer that is, ‘Ben, grow up. Come on, you're supposed to stand for something. I mean, you're the leader. You should be a role model. You don't need to put yourself in this position anymore.' I mean, I've read a lot about the Lake Tahoe incident. We've got that in our file. I'm familiar with that. If the case had gone to trial we'd have used that as a so-called prior similar transaction, but the case is not going to trial because I can't prove my case. But if he were mine – I have a son five years younger than Mr. Roethlisberger – I'd say ‘You don't even need to put yourself in this situation anymore. I mean, grow up. Cut it out. You don't need to be back in a V.I.P. area drinking alcohol.' I don't want to mislead you all, he'd been drinking a lot, but witnesses say he wasn't like swaggering or anything. I imagine a man that big, 6-5, 241, could hold a lot of alcohol. But you don't need to put yourself in a position, you know, ‘All you ladies come in the back and there's the shots. Drinks are on me.' It is unclear, it is foggy, what exactly happened in that bathroom, but if I was there coaching him I'd say, ‘Ben, you don't need to do this. You don't need to put yourself in a position where you're alone in this dingy bathroom with you and this girl. That's foolish. Grow up. You need to be a role model. You need to be a role model for your team, your city, the NFL. You can do better.' And I hope he's learned something from this. I really do.

Q: Is this case officially closed now? Or if more information surfaces will you re-open the investigation?

A: It's closed. I've made my decision and that's final. It's not going to change. I'll tell you this: We're still waiting on some phone records, text messages. There's nothing going to be enlightening there. I've got enough information. This decision was not difficult to reach. I knew pretty early on that this was the way this case was going, but I pride myself on keeping an open mind. I wanted to make sure that we made the right decision. That's critical. But to answer your question, it's closed. We're still waiting on a few bits and pieces but it won't change anything. It's closed.

Q: It was reported at one point that Roethlisberger admitted to having sexual contact. But he didn't say that to you, right?

A: Right. I've sat at the computer at night and just Googled and Yahooed everything I could. I've read every account that I could about this case. I read the same thing that you did, but that was not provided to law enforcement. The only information that came out of his lips to law enforcement was just a brief five, 10-minute [comment] and there was no discussion of sex.

Q: How long were they in the bathroom?

A: Nobody really knows. The only two people that know about them being in the bathroom were he and she. He's never said he was alone in the bathroom with her. All he said was he remembered the girl and she fell and hit her head, and again there was no head injury. He never said how long. Her details are somewhat foggy I think due to the level of intoxication. Putting all the bits and pieces of the puzzle together, the best guess would be about 10 minutes, but nobody really knows. I'm guessing 10 minutes from her going back there and coming out.

Q: Did the police report contain a recommendation or did you make the decision?

A: I made the decision. The buck stops with me. I'm 100 percent responsible for the praise or criticism for this decision. There's no recommendation to file. We're all in agreement, but it is my decision.

Q: Are you aware if the alleged victim or the bar owner at Capital City received compensation from Roethlisberger?

A: No. I wouldn't be privy to that. Let me say this, the victim, I got to talk to her myself and meet her family. I've read all the accounts and I've seen the expression ‘gold digger.' I think that would be inaccurate. I don't think money was on her mind. I really don't. I've talked to her. More importantly I watched her videotaped interview that night, and if one was to describe her as a gold digger just after his money, in my opinion I think that would be inaccurate. I'm not aware of any money or any payoffs or any civil cases.

Q: If there's a civil suit, would you allow anyone else to access your information?

A: The information is available under the Georgia Open Records Act, just like any other case.

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