Pouncey may have to turn over key evidence, including bank records

Monday October 28th, 2013

Massachusetts State Police surprised Dolphins center Mike Pouncey (in gray jacket) with a grand jury subpoena after Sunday's game with the Patriots in Foxborough, Mass.

As SI.com reported on Sunday, Dolphins center Mike Pouncey has been ordered to appear before a Massachusetts grand jury investigating a potential interstate gun ring involving Aaron Hernandez. Police are reportedly interested in transactions between Pouncey and Hernandez, a former teammate of Pouncey's while at the University of Florida. Pouncey -- criticized for wearing a "Free Hernandez" hat along with twin brother, Maurkice -- may also be ordered to show grand jurors key documents, such as emails to Hernandez and bank records.

Pouncey was served the subpoena after the Patriots' 27-17 victory over the Dolphins at Gillette Stadium in Foxboro, Mass. The place and timing was intentional: subpoenas are only valid within the issuing state. The Massachusetts State Police waited for Pouncey, who practiced with his Dolphins teammates last week in Rhode Island, to appear in Massachusetts and in a place where he could be handed papers. They likely waited until after the game to avoid criticism that they impacted its outcome.

To be clear, Pouncey has not been charged with a crime. Law enforcement regard him as a material witness. Pouncey's knowledge may help prosecutors advance their case against Hernandez, who in addition to first-degree murder faces five gun charges. The gun charges, often forgotten in the case, seem increasingly vital for a Hernandez conviction. Four months after Hernandez was arrested, prosecutors lack an airtight case for proving murder beyond a reasonable doubt. The weapon used to kill Odin Lloyd remains missing, and the two key witnesses -- Carlos Ortiz and Ernest Wallace -- reportedly have different stories about how Lloyd died. If Ortiz and Wallace were intoxicated or high when Lloyd was killed, Hernandez's attorneys could undermine their credibility and cast doubt on their recollection. But even if Ortiz and Wallace struggle as witnesses, prosecutors can still gain convictions on the five weapons charges. If they do, Hernandez would face up to 29 years in prison. Hernandez could also face additional charges related to financial impropriety. Pouncey's testimony and evidence could prove critical for the gun charges and any additional charges.

Pouncey, it should be noted, could eventually face charges himself if evidence emerges that he engaged in criminal conduct. To be indicted, at least 12 of the 23 grand jurors must find probable cause, which refers to reasonable grounds that a person has committed crime in light of what is known. As of now, however, there is no reason to believe Pouncey will be charged.

Pouncey can respond to the subpoena in three ways: comply, object or ignore. If Pouncey complies with the subpoena, he would testify, under oath, and provide requested documents. One downside to compliance is that while Pouncey's attorney could be with him during the grand jury proceeding, the lawyer could not raise objections. Grand jury proceedings are conducted in secret and are run by prosecutors, who decide which witnesses testify and which evidence jurors see. Neither Pouncey nor his attorney would be able to challenge any incriminating evidence, nor would they have an opportunity to confront the persons who may implicate Pouncey. Pouncey would have to answer questions truthfully or face the prospect of perjury charges.

Pouncey could agree to testify but then invoke his Fifth Amendment privilege against self-incrimination. He could only do so in response to questions that would lead him to admit to criminal wrongdoing. If prosecutors are not interested in charging Pouncey, they could grant him immunity from self-incrimination. In that case, Pouncey would be barred from pleading The Fifth and would have to answer questions. If he still refuses to answer them -- perhaps out of loyalty to Hernandez or even fear of retribution -- he would likely be jailed for contempt of court.

Alternatively, Pouncey's attorney can file a motion to quash the subpoena. There are a number of grounds that can motivate a court to throw out a subpoena. All, however, are difficult to establish. Pouncey could insist the scope of the subpoena is too broad or invasive, or that he simply doesn't possess the information sought. These tactics may delay Pouncey's involvement but are unlikely to accomplish much more.

Lastly, Pouncey could ignore the subpoena. He is unlikely to pursue that strategy, however, as he would be held in contempt of court. He would then be sent to jail until he cooperates or until the grand jury is finished. Grand juries in Massachusetts can last for months, so it would not be a short stay behind bars.

Of particular concern to the NFL and NFLPA, the subpoenaing of Pouncey suggests that Hernandez's alleged wrongdoing was not entirely disconnected from other NFL players. The possibility that multiple NFL players may have engaged in questionable dealings through the sale of guns would be a devastating turn for the NFL as it tries to distance itself from Hernandez.

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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