THE BLOG

Guilty: Aaron Hernandez's Attorney Sells Him Out

04/15/2015 03:28 pm ET | Updated Jun 15, 2015
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Aaron Hernandez can thank his attorney for making the jury's guilty verdict a no brainer. His defense attorney basically sealed Aaron Hernandez's fate when he conceded in closing arguments that Hernandez was present at the time of Odin Lloyd's murder. Under Massachusetts law, the theory of joint venture liability creates a situation where jurors did not need to find that Hernandez pulled the trigger or directly killed Lloyd to find him guilty of murder. Jurors were instructed that as long as they thought Hernandez knowingly participated in the crime, they could find him guilty of murder. It is akin to accomplice liability under the felony murder rule, where all participants are charged with the highest crime and given the highest punishment, no matter the level of participation. Hernandez's attorney knew this better than anyone. For him to concede in closing arguments that Hernandez was present at the time of the crime is OUTRAGEOUS. Was the evidence overwhelmingly in favor of him being there? Yes. Cell records, video surveillance, tracking all insinuated that Hernandez was present. However, as a defense attorney, you leave any spec of doubt that you possibly can.

Instead, the closing argument screamed, "my client is guilty." If I were on that jury, I would easily deduce a guilty verdict from that closing argument. Here's the reasoning: If Hernandez was present and witnessed the crime, then he knowingly participated through his OMISSIONS. He didn't call the police. He didn't try to save Lloyd or get him medical treatment immediately after he was shot. At the very least, assuming he did nothing else, then his omissions equate with complicity.

Not only did his defense attorney irresponsibly concede that he was present, but he also stated that he actually witnessed the crime and was so shocked he didn't know what to do. Do you think anyone is going to buy that argument when his home video cameras show him lounging around with his associates, the supposed murderers, hours later? Oh yes, he was so disgusted that he had to hang out in his "man cave" with the men who perpetrated this shocking crime before his very eyes.

Hernandez's attorney should have argued that he either wasn't there at that moment or didn't see what happened and was ignorant of the crime. Knowledge of the crime or merely being present in and of itself does not equate with participation. Say the guy was high as a kite, sleeping, taking a pee in the woods. Anything! The prosecutors also acted irresponsibly by claiming he pulled the trigger in closing arguments when they had absolutely no evidence of that, but that's neither here nor there.

Would Aaron Hernandez have been found guilty regardless of his attorney's ignorant mistake? Possibly. But, his attorney sealed the deal and made it easy as pie. Now he will likely spend the rest of his life in jail. The only place he will be playing football is the prison yard. He will of course appeal, but it's extremely difficult to overturn a jury verdict on appeal. The appeals court will usually only do so if they find grossly negligent misconduct by the judge or a glaring technical or procedural injustice. It is a very high standard.

Another approach to an appeal, is the one O.J. Simpson took, which is, claim attorney misconduct and misrepresentation bordering on malpractice. If I were Aaron Hernandez, that's the approach I would take. Even if Hernandez conceded he had actually killed Lloyd to his attorney, the man is not permitted to disclose this without Hernandez's permission under attorney client privilege rules. This appears to be a complete aberration from the old adage that you can buy yourself freedom with a high-powered attorney.