By David E. Frank
The Daily Record Newswire
COLUMBIA — The suggestion that Aaron Hernandez will be treated the same as any other defendant charged with murder strains credulity, say lawyers who have represented sports figures accused of crimes like the one that landed the New England Patriots Pro Bowl player behind bars in June.
“There’s no question everything changes because of the notoriety of the athlete sitting in that courtroom,” says attorney Lester Munson, a Northwestern University professor and legal analyst for ESPN who has covered nearly every major trial involving a pro athlete over the last 20 years. “Anyone who tells you differently isn’t being honest.” Paul V. Kelly of Jackson Lewis recently spoke to a room full of attorneys at the Sports Lawyers Association Annual Conference in Atlanta about how to defend athletes in criminal proceedings.
The former assistant U.S. attorney, who prosecuted the executive director of the National Hockey League players’ association in 1998, says Munson’s observation is spot on.
“They can say what they want, but the prosecutor undoubtedly treats the case differently than he would if it were a garden-variety case,” Kelly says. “I’ve been in those shoes, and your job is to be evenhanded and consistent. But the reality is that’s easier said than done.”
Kelly also has defended several athletes in criminal trials, including Marty McSorley of the Boston Bruins, who was charged and convicted in 2000 for viciously assaulting the Vancouver Canucks’ Donald Brashear during a game.
The Boston lawyer says it’s not only the prosecutor who looks at an athlete’s criminal case differently.
“Judges are human, and I suspect they’d admit that while they try hard to be true to the law and treat everybody the same, celebrities don’t come into their courtroom every day — and neither do the crowds that follow,” Kelly says. “Those cases may only come around for a judge once or twice in his time on the bench, and it does change the way that they deal with it.”
He points to the level of detail prosecutors and judges provided at Hernandez’s arraignment and bail review in June, and the gavel-to-gavel coverage his status conference received, none of which occurs in a typical case.
Nor would the jailhouse eating habits and prison cell floor plans of the average defendant be laid out in detail on the front page of a major metropolitan newspaper, as was done in the Hernandez case.
“Does the sheriff personally meet with every other pre-trial detainee that comes into his facility like Sheriff [Thomas] Hodgson did with Hernandez, and then tell anyone who’ll listen in the media exactly what they talked about? I suspect not,” Kelly says.
In spite of all the scrutiny, though, defending a person in Hernandez’s shoes isn’t all bad, Kelly says. The client’s ability to pay the bills is a major plus, as is the ease with which the defense can hire investigators and experts and assemble a first-rate legal team.
Case in point: 23-year-old Hernandez, who signed a $37.5 million contract in 2012, has hired two sets of lawyers: the highly respected Boston defense firm of Rankin & Sultan, and Michael K. Fee, a partner at the white-shoe firm of Ropes & Gay, which has among the highest billable rates in Boston.
“They’re going to probably end up with a battery of high-priced, high-powered experts to look at every piece of the case, from the forensic work to anything else you could imagine,” Kelly says. “The ordinary citizen just can’t afford that approach to the defense. And that’s a positive from the lawyer’s perspective.”
Going public
The intense scrutiny that’s part and parcel of cases like Commonwealth v. Hernandez can lead to difficult conversations between lawyer and client on how to deal with the media and the public at large.
The day McSorley was charged, the Bruins standout told Kelly he wanted to do a sit-down interview on ESPN that same evening.
“My reaction to him was, ‘Are you out of your mind?’” Kelly recalls. “I told him that it made no sense to do it. But he insisted on doing it anyway.”
McSorley spoke live with ESPN’s Steve Levy, answering every one of the reporter’s questions. When McSorley eventually took the stand at trial, the prosecution used clips from the interview in its cross-examination — “never a good thing,” according to Kelly.
“Unless you have an incredibly sharp and articulate client, it almost always makes no sense whatsoever,” the lawyer says.
Brockton attorney Kevin J. Reddington agrees. During the pre-trial phase of his defense of Red Sox first baseman Mo Vaughn, who was the subject of a highly publicized drunken driving arrest in 1998, Reddington instituted a no-comment policy. Though the case was pending during spring training when reporters would have easy access to him, Vaughn agreed to release a statement denying culpability and to refer all questions about the case to his lawyer.
“We shut it down right away,” Reddington says. “That’s the only way you can do it.”
After a two-day trial in Dedham District Court, a jury found Vaughn not guilty.
Although Reddington’s strategy is the best one, says criminal defense attorney David Bogenschutz, many players simply are unable or unwilling to keep quiet.
The Florida lawyer learned that lesson the hard way when his client, former Red Sox catcher Jim Leyritz, ignored his advice after being charged with DUI manslaughter in 2010. Like
McSorley, Leyritz conducted an interview with ESPN before trial.
Bogenschutz says it was a “disaster,” with Leyritz coming off as combative and in denial.
The on air appearance prompted prosecutor Stefanie Newman to comment in court that the Major League veteran suffered from an “air of entitlement.”
“They’re so used to having the adulation of the public that when they get charged with something and people start pointing their fingers at them and suggesting something bad has happened, it is contra-indicative of that public acclaim,” Bogenschutz says. “Some little kernel of something inside them just pushes them to want to be public and go out and talk. In Jim’s case, it didn’t go well. I was one step away from drinking hemlock when that was going on.”
In fact, the interview went so poorly that it persuaded Bogenschutz to keep his client off the witness stand.
“As soon as the interview was over, the prosecutor sent a subpoena to ESPN for the footage and all the outtakes,” Bogenschutz says. “I didn’t want to take the chance that the prosecution would ask him how he felt about the crime, and then have him say something they could contradict with a cinema verite from ESPN that portrayed him in a really bad way.”
Leyritz ultimately was acquitted of manslaughter, though the jury convicted him of DUI.
No breaks
While dealing with the media is a major concern, it’s not the only challenge facing lawyers who represent sports figures. The public’s perception about a client’s wealth and status also can be a sizeable hurdle, Bogenschutz says.
“It kills you. People look at the athlete and think, ‘Here’s this guy making all this money who goes out and kills somebody. What does he think: that he’s going to get away with it because he makes a lot of bucks?’”
Gerald H. Boyle of Milwaukee dealt with that issue early on in his defense of Mark Chmura of the Green Bay Packers.
Chmura, a former Boston College football star, faced a mandatory 20-year prison term in Wisconsin in connection with charges that he sexually assaulted a teenage girl in a hot tub in 2000. Even after a witness came forward to exonerate Chmura and medical evidence showed that the alleged victim’s hymen was intact, prosecutor Paul E. Bucher pushed forward with the case.
“A guy named John Smith might be able to crawl underneath the rug and get the case taken care of, but anybody who’s prominent is going to have a hell of a time working out a deal,” Boyle says. “If the public thinks the prosecutor has given a person like Chmura a break, even though it was clear he was innocent, there’s going to be hell to pay.”
Boyle and others accused Bucher, who would later run for attorney general, of using the Chmura case to advance his political aspirations. Bucher’s critics pointed to fact that he insisted on arresting Chmura in front of the cameras and marching him away in handcuffs, even though Boyle had offered to turn his client in to authorities when and if an arrest warrant was issued.
“I made a lot of comments about it at the time, which is not something I normally do,” Boyle says. “I won’t comment on them now, other than to say I really thought he overstepped because the defendant was on the Packers, and I think it came back to haunt him.”
A jury spent less than two hours deliberating before acquitting Chmura.
While Munson, the ESPN analyst, says it’s much too early to speculate about the motives of the prosecutors handling the Hernandez case, he notes that Bristol County District Attorney C. Samuel Sutter recently ran for Congress and is rumored to be eyeing a bid for attorney general.
The prosecution’s decision to subject Hernandez to the same type of “perp walk” Chmura endured raises red flags for Munson.
“That says to me that the prosecutor in this case has considerable ambition. Those guys from Ropes & Gray would have surrendered him in five seconds, but they insisted on the perp walk,” Munson says.
“I was incredulous that they would do it that way, but that’s what they did it. If they are going to follow the Paul Bucher model, that is a very sad commentary.”
Lawyers on both sides of the Hernandez case could not be reached for comment.
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