A NONDECISION BEGS THE QUESTION

When a criminal court jury became deadlocked in the Dave Forbes case, the future nature of hockey was also left hanging
July 27, 1975

On Jan. 4, 1975, insofar as this case is concerned, two events occurred: one, a hockey game was played by two National Hockey League teams, the Minnesota North Stars and the Boston Bruins, in the Metropolitan Sports Center in the city of Bloomington in the county of Hennepin in the state of Minnesota; secondly, the defendant, Mr. David Forbes, a member of the Boston Bruins team, committed an aggravated assault on Mr. Henry Boucha, a member of the North Star team."

So, in flat, just-the-facts-please fashion did Hennepin County Attorney Gary Flakne introduce Case No. 63280, "The State of Minnesota vs. David S. Forbes," to the jury in Hennepin District Court on July 9.

Ten days, 27 witnesses and 18 hours of deliberation later, the trial ended in an equally perfunctory manner when Judge Rolf Fosseen ruled, "Since there is no reasonable probability for agreement, the jury is dismissed. I suggest that you get your hat and coats. Court dismissed."

The hung jury satisfied no one, least of all David S. Forbes. Moments after the mistrial was declared, the 26-year-old Bruin leftwinger slumped against a railing outside the courtroom as if stunned by a particularly vicious body check. "I feel like I've been trampled by a thousand buffaloes," he said. "I'm more confused now than I've been through this whole thing."

He is not alone. Indeed, though propriety prevailed in the courtroom, controversy has raged elsewhere ever since Forbes was indicted (SI, Jan. 27) by a Hennepin County grand jury on Jan. 17 for aggravated assault with a dangerous weapon—his hockey stick. As the first prosecution of a professional athlete in the U.S. for an alleged criminal act committed during a sporting event, the Forbes trial figured to become a test case for legal precedents that could reshape the nature of contact sports.

Fred Shero, coach of the Stanley Cup champion Philadelphia Flyers, a team often celebrated as the Broad Street Bullies, voiced a typical reaction: "This trial's a joke. There'd be no sports, no leagues if this kind of thing always happened. If a guy threw a baseball at your head, you'd immediately sue him. If a guy came into second base with his spikes high, you'd sue him. In football they jump you from behind, they knee you, they kick you, and all you'd have to do is get a film of this, say it's illegal, and sue them. It's crazy."

NHL President Clarence Campbell, who suspended Forbes for 10 games after what he described as "one of the most vicious incidents I have ever been called upon to deal with," said that the trial was "very embarrassing to hockey. Courts are not the answer. Discipline must remain within the sport. Civil authorities are not equipped to deal with happenings in a game [particularly] isolated incidents. If you begin to rely on a court, no discipline in sport would be acceptable in terms of public opinion."

The battle lines became even more sharply defined when Case No. 63280 moved into the courtroom. In an unsuccessful attempt to have the trial dismissed, Forbes' defense attorney, Ronald Meshbesher, the patron saint of lost legal causes in Minneapolis, stated that, "I can't imagine our legislature envisioned that the assault statutes would be applied to any type of professional athletic contest. If that's true, then everyone who engages in boxing is guilty of assault every time they punch the other participant. The application of the law to Mr. Forbes makes him a scapegoat."

Reactions outside the courtroom cast other suspicions. "This is a political thing," said Joseph Keough, Forbes' personal attorney from Pawtucket, R.I., "a situation of a guy who took a national case and is pursuing it for publicity. I know of at least two NHL general managers who want to ban [play in] the whole state of Minnesota. Their feeling is, why bring in a' team and subject them to a guy like Flakne wanting to make political hay."

Flakne, who was appointed to the vacated office of county attorney in 1973, then elected last November, is a liberal Republican in a Democratic county. He says, "I don't prosecute for political purposes. An assault is an assault whether it occurs in a parking lot, at a country club or on a hunk of ice rented by the NHL. Any county attorney worth his salt would prosecute in this case."

There is no denying that Flakne has what his assistants call flair. To "humanize the office," as one aide explains it, Flakne was pictured on one campaign poster as St. George killing the dragon. Others had him variously costumed as Superman apprehending a bicycle thief and as Robin Hood astride a horse with attending bowmen and fair maidens. On each poster was the slogan: "Not Your Ordinary County Attorney."

And it was the extraordinary aspects of the Forbes incident, says Flakne, that prompted him to make it the first case he has personally prosecuted. "It is neither my function nor my desire to reform major league sports," he insists. "I'm here to enforce the law; reformation is the job of the sport itself. No, I am not appalled by violence. I can understand a lineman hitting a quarterback with his elbow to get his attention. I did the same thing myself on occasion when I played tackle in high school. But I don't think I ever tried to put someone's eyes out."

In his opening statement to the jury Flakne explained that early in the first period of the game in question "an altercation developed between the defendant and Mr. Boucha" that sidelined both players with seven-minute penalties. "You will hear from various witnesses," Flakne said, that once in the penalty box "the defendant told Mr. Boucha he would 'shove his hockey stick down his [Boucha's] throat.' "

After their penalties expired, Flakne related, both players left the mid-rink penalty box as play was stopped at one end of the ice. Boucha headed for his bench with Forbes trailing behind. "Spectators will tell you," Flakne said, how Forbes, "carrying his hockey stick in an unusual manner, went out of his way to catch up with Mr. Boucha," how "unexpectedly and without warning" he "thrust his stick to Mr. Boucha's head in a bayonet-or spearing-type motion" and how "immediately upon the stick hitting Mr. Boucha in the area of his right eye, blood began to spurt out."

Striking a table for emphasis, Flakne said that "the defendant's attack did not end at that point. Rather, as Henry Boucha clutched his eye—which he thought he had lost—and fell, stunned and bleeding to the ice, the defendant leaped on Mr. Boucha's back and began to strike Mr. Boucha's head and body with his fists." Then, Flakne continued, his voice rising, "The defendant grabbed Mr. Boucha's hair and began to pound Mr. Boucha's face onto the ice as blood radiated from Mr. Boucha's head."

The gory description was followed by a videotape of the first-period mayhem. Among the many ironies in the case, one being the rumor that Forbes was on the verge of being traded to the North Stars before he achieved instant notoriety, was the fact that the unedited tape of the incident included a Dodge commercial showing Forbes surrounded by admiring youngsters. That bit of prejudicial evidence, however, was judiciously excised from the film. Since the camera was trained at the far end of the rink when the attack took place near mid-ice, the jury saw only the scuffling aftermath of what the TV announcer called "a real Donnybrook."

The film did show the earlier clash in which Forbes, after riding Boucha hard into the boards with a high elbow, got locked in a struggle with his bigger North Star opponent. As the jurors leaned forward in their seats, a slow-motion replay showed Boucha wrest his right arm free and knock Forbes to his knees with an overhand punch while the announcer gleefully exclaimed, "Watch this right! Bang! There's the best right of the year!"

Though the film did not substantiate the claim, through carefully worded repetition as the trial progressed Meshbesher seemed intent on creating the impression that Boucha hit Forbes from behind with a "sucker punch." Emphasizing throughout that Forbes' "alleged assault was retaliation in kind," Meshbesher pursued the theme that similar violent acts were not only common but an integral part of a "rough, tough game." Or, as he repeatedly put it to witnesses, "That's hockey, right?"

Wrong, countered Flakne, who called 24 witnesses—officials, spectators, players, physicians—to the stand to support his charge that the "deliberate attack without provocation" was "unique" because "it did not occur as a normal event during a hockey game."

In awkward succession witnesses took Exhibit F—a hockey stick—in hand to demonstrate how Forbes "jabbed," "speared" and "slashed" Boucha with the butt end in action described as "an upward, golf-swing motion," "a kind of football throw" or "a horizontal butt stroke."

Boucha, still bearing a faintly purple scar over his right eye, testified that Forbes "threw a punch with the stick in an overhand motion." He said the injury, which required 25 stitches and remedial surgery for a small fracture of the eye socket, continues to cause him "double vision in the lower gaze." Under cross-examination Boucha impassively agreed with Meshbesher's statements that he had "been 'stitched' more than 12 times," that "players expect this kind of thing" and that Forbes "called you and apologized, and you accepted."

A curious air of amiability, which culminated during the weekend break with both Forbes and Flakne playing in a local celebrity golf tournament, quickly evaporated when the trial moved into its second week and the prosecution called its last witness, NHL President Campbell.

Reiterating much of the damaging evidence he had released at the time of Forbes' suspension, Campbell said that at a hearing held in Minneapolis in January Forbes told him "he was thinking of ways to get back at Boucha" while sitting in the penalty box and that, as they returned to the ice, Forbes had said, "O.K., let's go now!"

Reading from his notes, Campbell quoted Forbes as saying, "I intended to strike a blow with my fist. The stick was in my hand. I hit him in the face with my stick. I did not realize he was hurt."

After Bruin Coach Don Cherry attested to Forbes' contrition ("He had tears in his eyes, saying, 'What have I done? What have I done?' "), the defendant took the stand. Handsome, articulate and credible, Forbes spoke of the psychological pressures of playing pro hockey, "a game of intimidation." Corroborating or slightly amending Campbell's testimony, he added that if he had not retaliated against Boucha, "that would be telling him I was afraid, that he could walk all over me."

Later in his office, reflecting on Forbes' cool resistance to his cross-examination, Flakne said, "If you buy his line about not knowing he had the stick in his hand when he hit Boucha, I've got some lots in Florida I'd like to talk to you about."

Flakne drew more than insinuations in his summation to the jury, the intention of which was to prove that "the defendant intentionally inflicted bodily harm." Using a blackboard, he wrote 1) THE THREAT, noting that one witness sitting near the penalty box heard Forbes shout at Boucha, "I'm not going to dirty my hands, Henry, I'm going to use my stick." Pointing to 2) ENCOURAGEMENT, Flakne said that, according to witnesses, Boston's Bobby Schmautz "skated by the box and said to the defendant, 'Get him the first chance you get, buddy.' "

And so on through 7) THE ATTACK CONTINUES: "The moment the stick connected with Henry Boucha's head or eye area," said Flakne, "blood spurted profusely, 'as though an artery had been severed,' according to witness Dr. Barrett. But the attack continued."

"If Mr. Flakne's theory of this case is correct," countered Meshbesher in his summation, "he will have to close his office for all other business and take complaints solely for athletic events. Don't take complaints for crimes on the street. Get all your men watching every game, and enforce the law fairly."

Alternately pacing and thumping the lectern, Meshbesher noted that, "In this very same game Andre Savard, the Boston player, had his eye laid open...requiring sutures. And how did that happen? Dennis O'Brien of the North Stars hit him with his stick. And Mr. Flakne said, 'Well, he didn't intend to.' Who says he didn't? He got a penalty for deliberate intent to injure. Well, where is Dennis O'Brien? Is Mr. Forbes here because he was wearing a Boston Bruin uniform, and Mr. O'Brien is not sitting in his place instead because he wore a North Star uniform? If you're going to enforce this assault law on the ice, let's be fair about it. I submit to you that had this man been wearing a different-colored uniform that night he would not be seated behind the counsel table and suffering the ordeal of a criminal charge and trial.

"I hold no brief for the way hockey is played today. It is a violent, bloody game, where you have to have a doctor on call all the time ready to stitch up, have an ambulance available, players getting maimed, some even dying. I can't justify it. If the sport is to be cleaned up, let the legislatures clean it up and tell the hockey league, 'Clean your own house.' But don't make this man the patsy."

The jury did not—at least this time around. The sticking point was the interpretation of the involved criteria for determining the three possible verdicts: guilty of aggravated assault, guilty of simple assault or not guilty. After several hours of deliberation the jury asked to have transcripts of the judge's instructions, a mind-bending charge that ran to 26 pages of legalese.

While a national corps of newsmen stood vigil outside the courtroom long into the night, Forbes, many of the attorneys and an assorted retinue adjourned to a restaurant and bar across the street. "I don't envy the jury its job," said Meshbesher over a martini. "I've read that statute they're trying to decipher 12 times, and I still don't understand it."

The decision hinged, he said, on a pair of jurors—one male, one female. The man was popularly known as the Fan, due to the fact that he was the lone member who had professed an interest in hockey. The other came to be called the Rocker from the way she seemed to be constantly nodding in agreement with testimony. "They're the key," said Meshbesher. "Two dead opposites."

Sure enough, when the mistrial was finally declared, the first two jurors to come boiling out of the jury room were the Fan and the Rocker. The Fan, Gary Goranson, 26, an insurance adjuster, allowed that, "Things got pretty heated in there at the end. The problem was intent. I didn't feel Mr. Forbes intended to inflict bodily harm. Like any well-trained athlete he does things instinctively, without thinking."

On the first vote, Goranson said, eight jurors thought Forbes was guilty of aggravated assault. The final poll was nine for simple assault and three for not guilty. "Myself and two other men said we were going to hold out for a million years for innocent," said Goranson. "I can see 12 women—like the five on this jury did—going for aggravated assault. But I can't conceive of a mixed jury ever coming to a decision on an issue such as this."

The Rocker, Shirley Mathison, a saleslady in a children's shoe store, was visibly distraught at the outcome. In a shaking voice she claimed that it was "those hockey fans" who caused the mistrial. Goranson, she said, was a physical education major in college—a fact that Flakne did not draw out when querying potential jurors. Of the Fan, the Rocker said, "At one point he even said something like 'I guess I'm just prejudiced.' " Then, as Flakne was heading for the TV cameras, she stopped him, poked him in the chest and scolded, "You're going to have to question potential jurors deeper next time."

If there is a next time for Forbes it will be determined at an Aug. 5 hearing, when Flakne will be required to announce whether he intends to reprosecute. At the moment he is saying nothing except that "it depends on a lot of variables."

Boucha is also saying very little these days on the advice of his lawyer, who is considering suing Forbes pending legal developments. Though Boucha's first reaction to Forbes' indictment was, "They've got to be crazy!" he has apparently altered his opinion somewhat.

His career has undergone a change, too. After coming back to play 10 games with the North Stars, double vision and all, he was suspended for unexplained "disciplinary reasons" and is now negotiating with the rival Minnesota Fighting Saints in the WHA.

As for Forbes, he headed for Rochester, N.H. last week to ponder his fate at a children's hockey camp where he and some of his Bruin teammates are instructors. After spending so many bewildering hours in court he says he is seriously considering entering law school in an effort to rescue other unfortunates like himself. "And believe me," he says, "if I ever get convicted there will be a lot more prosecutions to handle."

Alan Eagleson, Executive Director of the NHL Players Association and a lawyer himself, seems to think the same. He notes that several players now have public liability insurance to protect them in situations where fans antagonize players to the point that the player makes a retaliatory move and is then sued by the fans in civil action. Eagleson feels the question of liability may have reached the point where the NHL, the teams and the Players Association should sit down to see how public liability protection can cover all players.

Indeed, the most serious implication of Case No. 63280 may be its contagious nature. When the Forbes trial first opened, for example, a visiting attorney sat in and took notes. Seems that his client, a semipro hockey player, is being prosecuted in Fargo, N. Dak. for hitting a rival player between the eyes with the butt end of his stick.

The last and most portentous word belongs to the man who started it all. "Make no mistake," says Flakne, "we shall see more of this."

ILLUSTRATIONFRANKLIN McMAHONHenry Boucha describes the blow to his head in Judge Rolf Fosseen's court. Seated, from left, are Defense Attorneys Ronald Meshbesher and Joseph Keough with Dave Forbes. Prosecutor Gary Flakne follows the dramatic testimony from the center of the other table. ILLUSTRATIONFRANKLIN McMAHONLinesman Ray Scapinello points out the area on the ice where Forbes attacked Boucha.
HOLE YARDS PAR R1 R2 R3 R4
OUT
HOLE YARDS PAR R1 R2 R3 R4
IN
Eagle (-2)
Birdie (-1)
Bogey (+1)
Double Bogey (+2)