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Advance Sheet: Old Moral Tales and New

American Bar Association, The Journal of the Section of Litigation

Reprinted with permission from the American Bar Association, The Journal of the Section of Litigation.

We'd seen this bad TV drama before. A star athlete charged with murder. Minimally trained (and badly paid) prosecutors laboring diligently, but with only inadequate resources and a questionable police investigation to work with. Crafty and experienced defense lawyers representing the wealthy sports star and overmatching the state in every way. With the high burdens of proof in criminal prosecutions in our system, there would seem to be no chance of a conviction. "If [the gloves] don't fit, you must acquit"? Another heinous crime left unpunished.

The names certainly had changed. Not O.J. Simpson this time, but Aaron Hernandez, star tight end of the New England Patriots. Charged not in the murder of his former wife, but close enough. The victim was one Odin Lloyd, a semi-pro football player dating the sister of Hernandez's fiancee. Hernandez certainly had the wherewithal to choose counsel matching that of his infamous predecessor-in-the-dock. Shortly before the crime, Hernandez had signed a mammoth contract with the Patriots guaranteeing him at least $16 million. The Patriots cut him after he was accused, in this murder and two others. But the money was his, and he could afford to pay the piper in the hopes of walking away from the indictments at least a free man, and still a celebrity, if no longer a star football player. So he assembled an elite legal team and set out on the well-worn path of overwhelming the local public servants of a suburb north of Boston.

So it had all the trappings of another courtroom disaster for the state. The early readings seemed to bear out these fears. Hernandez's legal team won several early procedural motions. And in a seeming reprise of events at the O.J. Simpson trial, it quickly became apparent that the state had no murder weapon, a deficit often fatal in murder trials. O.J., you may remember, was suspected of disposing of this critical evidence in the woods around O'Hare Airport, which a troop of deputies combed through to no avail, never being able to find anything. So too, here, Hernandez's fiancee was thought to have disposed of a sealed container of items given to her by Hernandez after the event, placing it in a dumpster she could no longer identify. And to complicate matters further, she wasn't talking anyway, invoking her Fifth Amendment rights and suffering a contempt citation for refusing to appear before the grand jury. Hernandez's alleged accomplices, now codefendants, were also standing mute.

As the trial began, however, it became apparent there were no Keystone Cops around this time, despite the defense's claims to the contrary. And this was not your grandfather's prosecution unit either. Police and prosecutors had assembled some impressive evidence and, more important, wove it into a carefully detailed, if prolix, narrative. The case took months to put on, but methodically the prosecution detailed each step in a horrific tale whereby Hernandez met Lloyd in a night club, took him on a fateful drive to an industrial park, and shot him in the presence of the others, all for some largely unarticulated peccadillo of Lloyd's. He seemed just to have rubbed the superstar the wrong way. A jogger later found Lloyd's bullet-ridden body.

All praise to the prosecutors. Theirs was an impressive case, complete with ironies galore. Not least of these was the unexpected help they got from Hernandez himself. So big a star had Hernandez become of Sunday afternoons, not to mention Sunday and Monday nights, that he worried his celebrity would attract criminals and criminal activity at his suburban home. So he did what any respectable and well-heeled home owner might do and installed a sophisticated security system to constantly surveil the property and trap any malefactor. All the comings and goings at the house after the Lloyd shooting were therefore caught on tape. Hernandez turned out to be the very culprit he had set out to nail. Not all of these tapes survived; some apparently went into the container the fiancée disposed of. But that act too—her departure from the house with the box or bag—was caught on tape, adding to the impression that the prosecutors' meticulously constructed narrative made sense.

Finding the Murder Weapon

There was still the problem of the missing murder weapon, however. Here the tapes offered some surprising relief too, even if the most damning evidence had been destroyed. One surviving shot was of Hernandez walking into his house shortly after the murder with a black object in his hand. The tape was very blurry, which may account for why it was not destroyed. But it turned out that it gave the prosecutors what they needed. Lloyd was murdered with a Glock pistol. The prosecution called an expert from Glock to testify that the blurry black object in Hernandez's hand was indeed the company's firearm. The defense attorneys argued to no avail that the blurred object could just have well been an iPad or remote control, trying every which way to shake the Glock representative's confidence. But he literally stuck to his guns, pointing out in precise detail why the object was most certainly what the prosecution said it was. And so the murder weapon was found in a way Hernandez likely never expected.

This result should reassure all trial lawyers, and it reaffirms the ageold nostrum that there is more than one way to skin a cat. There were other important lessons for trial lawyers as well. At closing, Hernandez's lawyer admitted to the jury that Hernandez was at the crime scene. The theory he espoused is that one of the other participants was the trigger man. You can see his thinking. Hernandez's presence was literally a no-brainer. The prosecution's evidence on that was just too strong. The idea must have been not to deny the obvious while raising reasonable doubt about Hernandez's role. But not denying and affirmatively acknowledging are two different things. The effect of the admission was as electrifying as it was unexpected. In post-trial interviews, several jurors mentioned their surprise at the statement, which seems to have had a far greater psychological impact than its pure evidentiary one.

And so the verdict rendered by the jury was a guilty one, leaving Hernandez facing not just a sentence of lifetime imprisonment without parole but a subsequent trial for two other previously unsolved murders with chillingly similar details. Simultaneously, perhaps, our confidence in dedicated prosecutors to bring even well-heeled celebrity offenders to justice may have been temporarily restored. Yes, in this case justice seems to have been done, and both the laws and the mores of our society have been reaffirmed.

Lessons from the Verdict

But which mores are those? A close observer of the public reaction to the verdict might still have reasons to worry, as the lessons said to be taught by Hernandez's outrage were far from uniform. Indeed, both the professional and public commentators divided themselves into two broad camps. The first expressed moral indignation of an acute kind, identifying Hernandez as a man of degraded moral character, or perhaps not human at all. Those in this camp saw the punishment as fitting the crime, a lifetime behind bars to prevent such a deviant product of our society from ever roaming our streets again. Some of these noted that Hernandez's social circumstances as a child and young adult may have contributed to the creation of such a moral monster. Others stressed how the lax moral culture of the university athletic systems prevalent in our society, not to mention the NFL, bore a share of the responsibility as well. But all in this camp seemed to be sure that, as the end product, Hernandez was morally corrupt.

A different attitude was expressed by a second group of commentators, lay and otherwise. They condemned Hernandez for his miscalculation. Eschewing moral rhetoric, they cited his stupidity. Hernandez, they said, had it made, with $16 million in guaranties, undeniable star power, a future of fame and wealth, and only the fear that too many hits to the head might impair his enjoyment of life after football. How could he have thrown that all away over some petty disagreement with Lloyd so trivial that the defense regarded that fact alone as a reason Hernandez could be thought unlikely to have committed the crime at all? More imprudent than immoral, Hernandez received a worthy sentence only in the sense that it was the objective consequence of, rather than the subjectively satisfying conclusion to, his misconduct.

Which is it? Was Hernandez guilty of a moral outrage or a miscalculation? Well, both, of course. The two have much in common. In the case of miscalculation, Hernandez seems to have been most mistaken about what good morals are. Or to put it in more traditional terms, he did not know right from wrong—an intellectual failing about moral matters. But moral judgments ordinarily do and should operate in a more reflexive way. They are a matter of second (if not first) nature, even if they do incorporate what one's reason has been taught directly by one's parents and teachers and indirectly by the laws and social norms.

As for the moralistic side, what seems to have clouded Hernandez's decision making was a belief our country sometimes dimly encourages that celebrities are different and above the law. In effect, it was Hernandez's corrupted moral sense of what the good, right, and true really are that made him a poor thinker too.

Still, it makes a difference which you emphasize. What attitude should we as a society take toward morality and moral turpitude is a question of enormous consequence. The more we are encouraged to believe that what's right and wrong are matters of prudence and calculation, the less moral (not to say moralistic) we are likely to be. Take this example. The common expression "honesty is the best policy" seems an old moral prescription. It isn't. Those who genuinely believe in honesty adhere to the view that telling the truth is good in and of itself, mostly independent of its effectiveness.
Dishonesty is worthy of blame, suggesting a corrupted self or soul. To make honest a matter of policy, by contrast, is, quite literally, to reduce it to mere calculation about how to get what one wants. Why be honest? It is good policy, i.e., it works in satisfying your desires. The strong, if unstated, implication is that telling the truth is good only so far as it goes. That is, if it doesn't work, there is no reason to be honest. Indeed, dishonesty is wrong only if, as sometimes proves the case, it fails to help you achieve your personal goals. In the more moral conception of things, honesty is not optional; in the latter approach, it is.

Sometimes the ambiguity is built into the words or phrases themselves. We speak of virtue as something to aspire to, a moral standard of conduct, of what is good and right. Courage, generosity, friendship are sometimes cited. But we also speak of accomplishing something "by virtue of," which makes the virtues sound instrumental only—useful, often, but not independently good.

Or take the saying "all's well that ends well," by which we might mean something hard to accomplish but properly won or, very differently, something achieved despite questionable tactics. In effect, the ends justify the means, however problematic these means might be. In each instance, it makes a difference whether we are all about morals, on the one hand, or objectives on the other.

One place where the distinction between a moral reaction and a prudential one may matter is in our view of punishment. For moral corruption, we want a harsh reminder that such conduct is inconsistent with citizenship and even society. There may be some part reserved for rehabilitation, drawing on a vague sense that bad moral habits could partly be the result of social circumstances and good morals part of human nature and ultimately retrievable. Punishments for miscalculation are more attenuated and equivocal, perhaps a necessary consequence but less fitting to the crime. In the case of misjudgments, retributive punishment makes less sense, while deterrence becomes key. There is also a therapeutic side to the discussion, where better education or counseling is favored to reform one's thinking (without, of course, brainwashing). There is more play for arguments about whether punishment is proper at all.

There has always been a tension between these two attitudes. At least in the contemporary United States, there sometimes seems a constant pendulum swing between moral outrage and cynicism. The former too often lacks staying power, while the latter is too glib. The question is whether and how we might temper the former without giving in to the latter. The trends do not seem good. In the face of constant invitations to focus on ourselves, the old moral standards seem at risk, with nothing but Machiavellianism and countless empty appeals to "shared values" to replace them. We seem not even to notice that our morality has moved to or made room for something of a more calculating and calculated variety. But if nothing else, the law sets a standard of conduct, even if some calculate over whether to obey it or not based on how likely they are to be caught. In its reinforcement of our faith that the law will be upheld, the Hernandez trial gives us some hope that truly moral standards of conduct are not done for yet.

About Litigation Journal

Litigation, published quarterly, is the preeminent journal in the field of trial practice. The publication offers practical yet lively information on common problems and interests for the lawyers who try cases and the judges who decide them.

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