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Legal notebook: Updates in Hernandez, Pistorius and O'Bannon cases

Photo: Reuters

Two of Aaron Hernandez's accomplices have been charged with murder in the killing of Odin Lloyd.

It's been a busy few days in the sports legal world. Here's an update with some analysis on three major cases.

Aaron Hernandez's alleged accomplices charged with murder

Aaron Hernandez's alleged murder accomplices, Ernest Wallace and Carlos Ortiz, were indicted last Friday for the murder of Odin Lloyd, whom Hernandez is charged with shooting to death on June 17, 2013. Wallace and Ortiz have been jailed since last year on accessory charges. Massachusetts law permits prosecutors to gain felony convictions through a "joint venture" theory, whereby those who assist in the carrying out of a crime can be convicted of the underlying crime. As a result, Hernandez, Ortiz and Wallace could all be convicted of murdering Lloyd even though only one would have pulled the trigger.

Five points

1. Proving joint venture will be challenging. Prosecutors allege Wallace and Ortiz accompanied Hernandez the night Lloyd was murdered, and claim there are text messages revealing Hernandez's intent to kill Lloyd. Wallace and Ortiz being at the murder scene or even encouraging Hernandez will not be enough. Prosecutors must prove that Wallace and Ortiz shared the intent of Hernandez -- the alleged trigger man -- to kill Lloyd. In previous cases, Massachusetts courts have found evidence of "shared intent" through a joint venturer being aware the murderer was armed, making no attempt to disassociate himself the murderer or covering up the crime. But courts in the state have also found that an alleged joint venturer can lack a shared intent if he was intoxicated or high on drugs. There is a strong possibility that Hernandez, Ortiz and Wallace were all high on drugs the night of Lloyd's murder. If they were high, expect attorneys for Ortiz and Wallace to argue their clients lacked the legal capacity to share Hernandez's intent.

2. Prosecutors must also contend with an uncertain narrative. At one point, Ortiz told prosecutors he remained in the car while Lloyd, joined by Hernandez and Wallace, was shot outside the car. Ortiz later changed his story, saying Wallace remained in the car with him while Hernandez shot Lloyd. Prosecutors do not view Ortiz as a credible witness and both Wallace and Hernandez maintain they had nothing to do with Lloyd's murder.

3. Prosecutors hope Wallace will eventually turn on Hernandez and testify against him. Rumors persist that Wallace's legal expenses are being paid by Hernandez. Until now, Wallace was "only" facing accessory charges, which carry a maximum of seven years in prison. He's now charged with murder and faces a life sentence if convicted. The price for Wallace's continued silence may be rising. Expect Wallace to be offered an attractive deal by prosecutors in exchange for testifying that he watched Hernandez shoot Lloyd.

4. There will be debate among prosecutors and lawyers for Hernandez, Wallace and Ortiz as to whether the three should be tried together or separately. This will be a major strategic decision for the attorneys, as there would be advantages and disadvantages to each approach. Hernandez is expected to go to trial in the spring of 2015, but three separate trials might push the time table back. Prosecutors hope to avoid a nightmare scenario where Hernandez, Wallace and Ortiz all give conflicting accounts and all allege heavy drug use -- thereby undermining the joint venture theory -- and jurors, unsure who killed Lloyd, don't convict anyone.

5. The case against Hernandez still lacks a murder a weapon and a credible witness who will testify that Hernandez killed Lloyd. While there is purported video evidence of Hernandez driving to the murder scene with Lloyd, there is no such evidence of Hernandez -- or Ortiz, Wallace or anyone else -- actually killing Lloyd. Prosecutors can still convict Hernandez through incriminating text messages, Hernandez's suspicious behavior and other indirect evidence. But Hernandez's attorneys only need to convince one juror to find reasonable doubt for there to be a hung jury. Hernandez faces five weapons charges, for which he could face up to 29 years if convicted. A more likely sentence for those weapon charges would be in the five to nine year range, and Hernandez would get credit for jail time already served.

Oscar Pistorius takes the stand and emotionally pleads his innocence

Last week Oscar Pistorius took the stand in a Pretoria, South Africa, courthouse and tearfully described the death of his girlfriend, Reeva Steenkamp, as a horrible but accidental tragedy. Pistorius, a double-amputee sprinter, is charged with murdering Steenkamp, whom he shot four times on February 14, 2013. Pistorius testified that he was on his stumps when the shooting occurred and that he mistakenly thought Steenkamp was an intruder behind a bathroom door. Pistorius claimed he was "overcome with fear" at the prospect of a home invasion. Prosecutors, in contrast, believe Pistorius killed Steenkamp after an argument during which she locked herself in the bathroom to get away from him. Text messages and other evidence reveal problems in their relationship.

Five points

1. Pistorius' testimony may have advanced his case on an emotional level. If Pistorius truly made a mistake in shooting Steenkamp, he'd probably behave as he has during the trial: distraught, remorseful and inconsolable. But on a logical level Pistorius' testimony was lacking. He somehow failed to notice that Steenkamp wasn't in bed when he moved fans from a balcony into the bedroom and when he grabbed the gun from under her side of the bed (Pistorius says the room was dark). He also didn't find it essential to make sure Steenkamp wasn't in danger with a supposed intruder loose in the apartment and, most importantly, wasn't behind the bathroom door. Lastly, he didn't hear her scream, but his neighbors did. While his account may be plausible and while his disability might impact how a reasonable person in his position would have behaved, Pistorius struggled to convince.

2. Some of the evidence in Pistorius' trial would likely be inadmissible in the U.S., where evidence that is more prejudicial than probative is generally excluded. For example, prosecutor Gerrie Nel showing a video of Pistorius shooting a watermelon and then Pistorius or a friend laughing about killing zombies would probably be excluded in the U.S. on grounds that it has nothing to do with whether Pistorius intentionally killed Steenkamp and may unfairly inflame opinions about Pistorius.

3. The trial is expected to go through early- to mid-May. The defense anticipates calling another dozen or so witnesses, who will probably include experts in medical and scientific fields. They will contend that Pistorius acted reasonably in light of his disability, that Steenkamp's death is consistent with an accidental shooting and that screams heard by neighbors more closely matched the cries of Pistorius than those of Steenkamp. Sound is a key issue. If Judge Thokozile Masipa and her two assessors conclude that Steenkamp screamed after the first shot, then why would Pistorius fire a second, third and fourth time? Shouldn't he have realized that his first shot hit Steenkamp and not an intruder? Also expect the defense to raise questions about the police's investigation and how former lead investigator Hilton Botha resigned in part due to mismanaging the Pistorius investigation.

4. If convicted, Pistorius would face a life sentence and a minimum of 25-years in prison. Masipa, however, would have discretion to consider "extraordinary circumstances" and impose a lighter sentence. Pistorius's disability could be considered one such circumstance.

5. If Pistorius is found not guilty of murder, he would have convinced the court that he lacked intent. But he could still be convicted of the lesser charge of culpable homicide. Masipa might conclude that while Pistorius lacked intent to kill Steenkamp, a reasonable person in his position would not have shot through a closed bathroom door without first excluding the most likely possibility: that his girlfriend was there. There is no minimum sentence for culpable homicide, meaning Pistorius could avoid prison. It is more likely that Pistorius would be sentenced to at least a few years in prison.

Ed O'Bannon and the NCAA fail to end their case on summary judgment

Last Friday U.S. District Judge Claudia Wilken denied a summary judgment motion by O'Bannon on all but one issue and completely denied a summary judgment motion by the NCAA. Wilken granting summary judgment in such an unprecedented, data-intensive case would have been stunning. It would have required her to conclude that the case poses no factual dispute despite each side having spent thousands of dollars on experts who very much disagree. Such a move would have surely triggered an appeal. The case is schedule to go to trial June 9.

Five points

1. O'Bannon was granted summary judgment on one narrow, but key issue. Wilken rejected the NCAA's argument that prohibiting student-athletes from receiving compensation for the use of their names, images, and likenesses advances a "broader social purpose." The alleged social purpose of helping colleges fund women's sports and less prominent men's sports was deemed irrelevant for purposes of antitrust law. Wilken also reasoned that the NCAA and its members could fund these sports by "redirect[ing] a greater portion of the licensing revenue generated by football and basketball to these other sports."

2. Wilken also signaled support for some of O'Bannon's legal arguments. Most notably, she seemed to demand more proof from the NCAA that banning athlete compensation statistically boosts consumer demand for Division I football and basketball and contributes to the integration of education and athletics. Put another way, she's putting the NCAA on notice that it better bring it's "A" game to the trial and back-up rhetoric with real numbers.

3. Despite what both sides tell the media, expect there to be serious settlement talks prior to the trial. The NCAA finds itself in the unenviable position of simultaneously defending multiple lawsuits that pose existential threats and employ different legal theories. The O'Bannon (and Sam Keller) case draws on antitrust law to challenge compensation of players for their image, name and likeness, while the Martin Jenkins and Shawne Alston cases use antitrust law to challenge caps on athletic scholarships. The NCAA is also defending concussion lawsuits and, while not a party, is clearly impacted by Kain Colter's labor law efforts to form a union at Northwestern. The NCAA would have to "run the table" on these legal challenges to maintain its current form. Voluntarily offering major change may prove a wiser move.

4. If O'Bannon wins or negotiates a favorable settlement, ESPN and other television networks may have to negotiate with student-athletes to broadcast their games. In her summary judgment order, Wilken seemed unmoved by arguments that the First Amendment gives television networks the right to broadcast college athletes without compensating them. Paying college athletes to be on TV would significantly change business models for media and network companies that have historically profited from college sports.

5. The people with the most at stake in the legal war on the NCAA? Star athletes in middle school who may be entering college at around the time all legal appeals have been heard.

Michael McCann is a Massachusetts attorney and the founding director of the Sports and Entertainment Law Institute at the University of New Hampshire School of Law. He is also the distinguished visiting Hall of Fame Professor of Law at Mississippi College School of Law.

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