- In the eyes of the court, Aaron Hernandez is no longer a convicted murderer. Will that hold up on appeal?
The late Aaron Hernandez is no longer a convicted murderer. In fact, as peculiar as it sounds, you might even describe the former Patriots tight end as “innocent”—although doing so would require that a sizable asterisk be placed after the word “innocent.” If this all sounds strange, it’s because of how the law regards the impact of Hernandez dying before his appeals had been heard.
On Tuesday, Massachusetts Superior Court Judge Susan Garsh vacated Hernandez’s 2015 first-degree murder conviction for the death of former semi-pro player Odin Lloyd. Judge Garsh’s ruling, which also vacates Hernandez’s conviction for two accompanying firearm charges, is consistent with “abatement ab initio”, a legal principle recognized in Massachusetts which holds that a judge must vacate the convictions of a defendant whose appeals had not yet been heard at the time of his death.
In effect, abatement restores the defendant’s status to a time before the defendant was charged with a crime. As detailed in a recent SI article, Hernandez taking his own life arguably should complicate the legal analysis for whether a judge ought to grant abatement. Judge Garsh, however, declined to find Hernandez’s suicide—and the possibility that Hernandez killed himself to financially advantage his heirs—to be a distinguishing factor. In fact, Judge Garsh declined to hold an evidentiary hearing on the circumstances of Hernandez’s death, reasoning that the conclusion of such a hearing would not change her legal analysis.
The issue is by no means over. District Attorney Thomas Quinn, III of Bristol County (Mass.)—where Hernandez was convicted of murdering Lloyd—will appeal Judge Garsh’s ruling to the Massachusetts Supreme Judicial Court. An appeal will likely take several months and possibly over a year to play out. Therefore, it will be some time before final resolution on whether Hernandez’s convictions are abated. In addition, while a Boston jury last month acquitted Hernandez for the murders of Daniel de Abreu and Safiro Furtado, the jury convicted him of unlawful possession of a firearm, a felony. A court in Boston would need to vacate that conviction for Hernandez’s record to be cleared.
Hernandez’s heirs are the real winners from abatement
Judge Garsh’s ruling is a major victory for Hernandez’s estate and its beneficiaries, most notably Hernandez’s four-year-old daughter, Avielle Janelle Hernandez. Hernandez’s fiancée, Shayanna Jenkins Hernandez—a suicide letter attributed to Hernandez told she was “rich”—may also stand to benefit if not directly than through money paid to her and Aaron’s daughter, Avielle.
Although courts records show that Hernandez’s estate is currently worth $0, there are pending and possible sources of considerable money for the estate and/or Hernandez’s heirs. Those sources include the pending sale of Hernandez’s North Attleboro (Mass.) house, valued at $1.3 million, and Hernandez’s NFL pension, which kicked in by virtue of him playing three seasons. There are other potential payments, including any life insurance policies purchased by Hernandez that do not deny payment based on Hernandez taking his own life. Perhaps the most controversial potential payment concerns whether the Patriots now owe unpaid contract money to Hernandez, through his estate, on grounds that he no longer has been convicted of murder.
The fact that Hernandez’s suicide is poised to financially reward his loved ones is not lost on District Attorney Quinn. He and other Bristol County prosecutors contend that Hernandez was aware of abatement and that it induced him to commit suicide. By granting abatement, these prosecutors contend, Judge Garsh essentially rewards Hernandez for manipulating the legal system.
Abatement significantly harms pending civil litigation against Hernandez’s estate
Hernandez’s heirs not only stand to gain money from his death; they are also poised to obtain legal protections to hold on to that money.
Indeed, the persons most adversely impacted by abatement of Hernandez’s criminal record are the family members of his victims and alleged victims. Hernandez’s estate faces wrongful death lawsuits filed by those family members, who would like to be able to tell jurors in civil trials that Hernandez was convicted of murder (in the case of Lloyd) and charged with murder (in the cases of de Abreu and Furtado). If Judge Garsh’s ruling stands, those families would be denied a chance to highlight those historical points, and evidence and witness testimony from the two criminal trials would be deemed inadmissible.
While such an assessment paints a bleak picture for the families’ lawsuits, there is some hope for them. First, witnesses from the criminal trials could simply testify again in the civil trials. For example, Lloyd’s sister, Shaquilla Thibou, testified in the 2015 murder trial that she saw her brother enter a Nissan Altima that was driven by Hernandez before Lloyd was shot. Thibou could give the same testimony, more or less, in a civil trial. It seems unlikely that Thibou’s memory and recollection about such an important life event would be impacted by the passage of a few years. Second, some of the evidence from the criminal trial could be reintroduced in civil trials as new evidence. This would potentially include damning text messages and surveillance videos. Third, the families would not need to prove that Hernandez is guilty beyond a reasonable doubt. Instead, in a civil trial, they must only show that it is more probable than not—anything greater than 50% certainty—that Hernandez negligently killed their loved ones.
Still, the lawsuits face a far steeper climb than they did before abatement. Compounding matters for the families is the chance that some of the witnesses may no longer be available to testify. Other witnesses may be available but might not be able to recollect what took place in 2013 the way they could in ’15. Also, some of the physical evidence from the crimes may no longer be accessible or easily obtainable. In addition, the families may worry that by the time their trials are heard, the money will already have been distributed from Hernandez’s estate. To mitigate this concern, a previous court order ruled that proceeds from the sale of Hernandez’s house would be held in escrow until the Lloyd wrongful death lawsuit is resolved.
How abatement might impact the Patriots
A popular question that has surfaced since Hernandez’s death is whether the Patriots are obligated to pay unpaid portions of the $39.8 million contract that Hernandez signed in August 2012. The short answer is that no one knows for sure, but abatement of Hernandez’s record improves the chances for his estate to recover money from the team.
The Patriots reportedly paid Hernandez about $10 million from his contract prior to releasing him on June 26, 2013—the day he was charged with Lloyd’s murder. Much of the remainder of the contract was in the form of non-guaranteed money. The Patriots’ obligation to pay Hernandez non-guaranteed money were terminated upon his release. Also, the NFLPA and NFL reportedly reached a settlement in ’14 that resolved portions of the Hernandez contractual dispute. However, there remains uncertainty about whether the Patriots owe certain other unpaid portions of the contract. This disputed money centers on a $3.25 million deferred signing bonus and an $82,000 bonus from Hernandez participating in workouts in June 2013 before his contractual release.
Some points to consider:
1. Hernandez’s estate’s position to recover the remaining money would be improved by gaining finality in the abatement of Hernandez’s convictions. This is true of the weapons charge conviction in Boston, which relates to a shooting that occurred a month before Hernandez signed the $39.8 million contract on Aug. 27, 2012.
2. Even if Hernandez’s record is completely abated, Ben Volin of The Boston Globe reports that Hernandez’s contract contains language that clearly advantages the Patriots. Paragraph 35(c) of the contract states that “Player represents and warrants to the Club that . . . no circumstances exist that would prevent Player's continued availability to the Club for the duration of the Contract.”
A literal reading of this language would suggest that Hernandez did not sign the contract in good faith. The Boston murders occurred on July 16, 2012. Hernandez signed his Patriots contract 42 days later. While Hernandez was found not guilty of those murders, the record is clear Hernandez was with Alexander Bradley in the silver Toyota 4Runner when the drive-by shootings occurred. Hernandez was also convicted of a weapons charge stemming from this incident.
Thus, at the time he signed the $39.8 million contract, Hernandez knew of circumstances that might lead to him being charged with murder or accessory to murder. Any such charges would have prevented his availability for an indefinite period of time. In other words, the Patriots could contend that whether Hernandez was guilty of a crime is not the operative question; it’s whether Hernandez knew of circumstances—such as involvement in a drive-by shooting—that might have prevented his continued availability.
Attorneys for Hernandez’s estate, however, might insist that Hernandez was under no legal or ethical obligation to notify the Patriots of his involvement in a potentially unlawful incident. In fact, depending on what the Patriots did with that information, such a disclosure might make it more likely Hernandez would be charged with a crime for that incident.
The Patriots have other contractual language that could advantage the team. Under Article 4.9 of the collective bargaining agreement, players who are incarcerated may be required to forfeit their signing bonus. Hernandez’s attorneys, however, would insist that such language does not consider a player who is incarcerated for a conviction that is later vacated.
If the Patriots and Hernandez’s estate are unable to resolve a pending grievance over the contract, the dispute would likely be heard first by an arbitrator and then, if necessary, a court. Only one thing seems certain: The financial aftermath of Hernandez’s death is going to take a while to sort out.
Michael McCann is SI’s legal analyst. He is also an attorney and a tenured law professor at the University of New Hampshire School of Law.
Pete Thamel contributed to this report.