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CNN LIVE EVENT/SPECIAL

Judge Considering Possession of Baseball

Aired December 18, 2002 - 13:24   ET

THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.

KYRA PHILLIPS, CNN ANCHOR: Now, we're going to take you live to a court room in San Francisco where any moment now, we are all going to find out who gets Barry's baseball. Well, a judge -- this judge is expected to announce any moment now which of two San Francisco Giants fans will get to keep the $1 million baseball that was hit by Barry Bonds for his record-breaking 73rd home run back in 2001. You will probably remember the controversy that took place.
Both Alex Popov and Patrick Hayashi claim that the ball is theirs, and now we will find out which one of those fans will soon become a millionaire.

JUDGE KEVIN MCCARTHY, SAN FRANCISCO SUPERIOR COURT: He asked Mr. Kepple (ph) to point the camera at him. At first, Mr. Kepple (ph) did not comply and Mr. Hayashi continued to hide the ball.

Finally after someone else in the crowd asked Mr. Kepple (ph) to point the camera at Mr. Hayashi, Mr. Kepple (ph) complied. It was only at that point that Mr. Hayashi held the ball in the air for others to see.

Someone made a motion for the ball and Mr. Hayashi put it back in his glove. It is clear that Mr. Hayashi was concerned that someone would take the ball away from him, and that he was unwilling to show it until he was on videotape. Although he testified to the contrary, that portion of his testimony is unconvincing.

Mr. Popov eventually got up from the ground. He made several statements while he was on the ground, and shortly after he got up, which are consistent with his claim that he had achieved some level of control over the ball, and that he intended to keep it. Those statements can be heard on the audio portion of the tape.

When he saw that Mr. Hayashi had the ball, he expressed relief and grabbed for it. Mr. Hayashi pulled the ball away. Defense council has attempted to characterize this encounter as one in which Mr. Popov congratulates Mr. Hayashi for getting the ball, and offers him a high five.

This is an argument that only a true advocate could embrace. It is important to point out what the evidence did not and could not show.

Neither the camera nor the percipient witnesses were able to establish whether Mr. Popov retained control of the ball as he descended into the crowd. Mr. Popov's testimony in this question is inconsistent on several important points, ambiguous on others, and on the whole unconvincing. We do not know when or how Mr. Popov lost the ball.

Perhaps the most critical finding of all is one that cannot be made. We will never know if Mr. Popov would have been able to retain control of the ball had the crowd not interfered with his efforts to do so.

Resolution of that question is the work of a psychic, not a judge.

The legal analysis is as follows. Plaintiff has plead causes of action for conversion, trespass to chattel, injunctive relief, and constructive trust. Conversion is the wrongful exercise of dominion and control over the personal property of another. There must be actual interference with the plaintiff's dominion. Wrongful withholding of property can constitute actual interference, even where the defendant lawfully acquired the property.

If a person entitled to possession of personal property demands its return, the unjustified refusal to give the property back is conversion. The act constituting conversion must have been intentionally done. There is no requirement, however, that the defendant know that the property belongs to another or that the defendant intend to dispossess the true owner of its use and enjoyment.

Wrongful purpose is not a component of conversion. The injured party may seek to elect either specific recovery of the property, or monetary damages.

Trespass to chattel, in contrast, exists where personal property has been damaged or where the defendant has interfered with the plaintiff's use of the property. Actual dispossession is not an element of the torte of trespass to chattel.

In the case at bar, Mr. Popov is not claiming that Mr. Hayashi damaged the ball or that he interfered with Mr. Popov's use and enjoyment of the ball. He claims, instead, that Mr. Hayashi intentionally took it away from him, and refused to give it back. There is no trespass to chattel.

If there was a wrong at all, it is conversion. Conversion does not exist, however, unless the baseball rightfully belongs to Mr. Popov. One who has neither title nor possession nor any right to possession cannot sue for conversion.

The deciding question in this case, then, is whether Mr. Popov achieved possession, or the right to possession as he attempted to catch and hold on to the ball. The parties have agreed to a starting point for this legal analysis. Prior to the time the ball was hit, it was possessed and owned by Major League Baseball. At the time it was hit, it became intentionally abandoned property. The first person who came in possession of the ball became its new owner.

The parties fundamentally disagree about the definition of possession. In order to assist the court in resolving this disagreement, four distinguished law professors participated in a forum to discuss the legal definition of possession. The professors also disagreed.

The disagreement is understandable. Although the term "possession" appears repeatedly throughout the law, its definition varies depending on context in which it is used. Various courts have condemned the term as vague and meaningless.

This level of criticism is probably unwarranted. While there is a degree of ambiguity built into the term "possession," that ambiguity exists for a purpose. Courts are often called upon to resolve conflicting claims of possession in the context of commercial disputes. A stable economic environment requires rules of conduct which are understandable and consistent with the fundamental customs and practices of the industry they regulate.

Without that, rules will be difficult to enforce and economic instability will result. Because each industry has different customs and practices, a single definition of possession cannot be applied to different industries without creating havoc.

This does not mean that there are no central principles governing the law of possession. It is possible to identify certain fundamental concepts that are common to every definition of possession.

Professor Roger Burnhart (ph) has recognized that -- quote -- "possession requires both physical control over the item and an intent to control it or exclude others from it."

He goes on to say that these generalizations function more as guidelines than as direct...

PHILLIPS: Live from a courtroom in San Francisco, you're listening to a judge there go over testimony, trying to figure out who's going to get Barry Bonds' baseball. The judge is expected to announce any moment which of two San Francisco Giants fans will get the million dollar baseball after a scuffle took place in 2001, after Bonds made that record breaking 73rd home run.

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