Can ex-Patriots star Aaron Hernandez receive a fair trial?

Monday July 1st, 2013

Despite all the media attention, Aaron Hernandez's lawyers will have a hard time proving he won't be able receive a fair trial.

Charged with first-degree murder for the death of Odin Lloyd and now the focus of an investigation into a Boston double homicide, Aaron Hernandez is at the epicenter of a media frenzy. In Massachusetts the news coverage has been incessant even though prosecutions of reputed mobster James "Whitey" Bulger and accused Boston Marathon bomber Dzhokhar Tsarnaev are happening at the same time. In a bail hearing last week before Judge Renee Dupuis, Hernandez attorney James Sultan raised the media's attention as having legal significance.

This brings up an interesting question: With the attention surrounding him, can Hernandez receive a fair trial?

Americans who are charged with crimes have a constitutional right to an impartial jury. This right is arguably most important when a defendant, like Hernandez, faces life in prison without parole. Trial judges are entrusted with ensuring that proceedings are not contaminated by prejudice and outside pressures. Those pressures include journalists, who want to break news. In Boston, newspaper headlines have included "Let's Go To The Tapes: Surveillance Videos, Texts, Build Murder Case Against Ex-Patriots Star", "Hernandez Home Subject of Intense Police Search", and similarly punchy lines that are factually correct, but may cause readers to think Hernandez is guilty. Keep in mind, the evidence implicating Hernandez has not yet been scrutinized by a court or defense experts.

McCANN: Breaking down the murder case against Aaron Hernandez

Hernandez's lawyers might question the fairness of a potential trial and insist that the jury pool has already been prejudiced. The tactic, however, will probably fail. For one, if Hernandez is tried, a jury will be impaneled. No celebrity defendant has escaped prosecution because of a supposed impossibility of finding impartial jurors. O.J. Simpson. Jerry Sandusky. Casey Anthony. Charles Manson. All were tried before juries despite their infamy. Along those lines, a prospective juror knowing of the defendant or of the charges he faces does not disqualify that person from serving on the jury. Knowledge is not to be confused with bias.

Hernandez's attorneys would probably also fail to have a trial relocated. Given that Hernandez faces charges in Massachusetts state court, a trial could not be moved to another state. It's plausible a judge may change the venue to another part of Massachusetts or import jurors from other parts of the state, but neither are likely. Most of the apparent evidence and many of the likely witnesses are located in Bristol County. Also, the publicity of Hernandez's case is so widespread that bringing in jurors from other parts of Massachusetts seems unlikely to make a difference.

Hernandez could avoid a trial by pleading guilty to all charges or striking a deal with prosecutors and pleading guilty to lesser charges. In Massachusetts, a second-degree murder charge carries a life sentence with the chance for parole after 15 years served. Hernandez could also avoid a trial if his attorneys identify such a serious error in the prosecution's argument or evidence that the charges are dropped. But if Hernandez goes to trial for the death of Lloyd, the trial would likely occur in Bristol County.

The fairness of a Hernandez trial is complicated by the fact that Hernandez could face a second murder trial, also in Massachusetts. If Hernandez is charged for the deaths of Safiro Furtado and Daniel Abreu, who were killed in a drive-by shooting in July 2012, he would face them in Suffolk County (Boston), where he would likely be tried for those crimes. Making matters even more complex, Hernandez could face yet a third set of charges if it is shown his criminal conduct -- and that of accomplices -- had sufficient interstate qualities to justify federal charges. It may prove noteworthy that Ernest Wallace and Carlos Ortiz, Hernandez's alleged accomplices in the murder of Lloyd, were arrested in Florida and Connecticut, respectively. Federal murder charges, unlike Massachusetts murder charges, carry the possibility of the death penalty.

If Hernandez goes to trial and is convicted, he should not expect a reversal based on the notoriety surrounding his case. It is extremely rare for convictions to be overturned because of a surrounding media circus. One notable exception was the U.S. Supreme Court reversing the conviction of Dr. Sam Sheppard, who in 1954 a jury found to have killed his pregnant wife. The Supreme Court reasoned that a "carnival atmosphere" surrounding Sheppard's trial and the unbridled access media enjoyed in the courtroom had caused a miscarriage of justice. Since then, however, trial judges are quick to adopt measures to prevent disruptions to the proceedings. If Hernandez goes to trial, the judge would likely sequester the jurors as soon as they begin to deliberate. The judge might also issue a gag order on the attorneys from speaking with the media. Those steps wouldn't necessarily stop the frenzy: a state court trial of Hernandez would likely be televised as Massachusetts law permits cameras in the courtroom.

No matter the steps taken to ensure Hernandez receives a fair trial, he won't avoid a trial or have any conviction reversed based on the media's coverage of his breathtaking fall from grace.

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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