Hank Brennan, Former Prosecutor and Defense Attorney, Provides Commentary on the Aaron Hernandez Trial

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Category: Op/Ed, Legal Commentary

Published on Tuesday, 24 February 2015 09:36

Written by Janet Walker

The murder trial of Aaron Hernandez, former tight end for the Super Bowl Champion New England Patriots, is entering Day 13 as the defense continues its attempts to discredit the prosecution’s case witness by witness.

Speculation continues to swirl around the possibility the former 2010 Round Four NFL Draft pick facing three murder charges, including that of semi-pro player, Odin Lloyd, will take the stand in his own defense.

Speaking with Hank Brennan, former District Attorney in Suffolk and Essex Counties who is well acquainted with the courtroom, highly skilled in trial advocacy, and most recently defended notorious mobster Whitey Bulger conducting the majority of cross examination.

Brennan addressed the pitfalls associated with high profile clients or, in reality, anyone taking the stand, and how juries tend to interpret the apparent “truth seeking” action.

Janet Walker: Speaking directly do you think Mr. Hernandez should take the stand in his defense?

Hank Brennan: Generally, I prefer that my client refrain from testifying.  The government has to prove each element of the indictment beyond a reasonable doubt. It is not incumbent upon a defendant to prove his or her innocence. Ironically, innocence has nothing to do with it.

A funny thing happens when an accused takes the stand. The burden of proof seems to dissipate and jurors often engage in an analysis of which side they believe more.

An accused testifying impliedly creates the transformation of the burden of proof to an assessment of whether or not the accused is innocent. The protection provided by the burden of proof and the reasonable doubt standard is awfully important an asset to trade for the opportunity to have a client testify.  

JW: Can you explain?    

HB: There are generally three factors that come into play.  

First, how the case has developed in front of the jury?  The facts presented to a jury appear differently than they appear in police reports and witnesses statements. That is because credibility of witnesses is the biggest variable in any case thus the extraordinary significance of cross-examination.

Secondly, asking what facts remain that are detrimental to the defense after the prosecution has rested its case and deciding whether the attorney and client believe a conviction is imminent without an adequate explanation. If the negative factors can be dealt with then the risks in testifying often outweigh the potential benefits.  

Thirdly, how credible will the accused present?  Are there facts that can be convincingly explained, is the accused convincing, what evidence will be admissible if the accused testifies that otherwise would not be presented to a jury? 

JW: What if a client insists fearing the truth will not be presented otherwise?

HB: I have had many cases where clients demanded to testify simply because they wanted to. I have had other clients who prepared and planned on testifying but by the time the prosecution rested there was no need for their testimony and they refrained.

It is a case by case assessment that requires critical analysis of the evidence actually presented at trial.

Hernandez's defense lawyers will be in the best position to determine whether his testimony would benefit or hurt the case.

Observers and commentators may have their own opinions based on the indictments, their subjective hope that Hernandez testifies to add to the excitement of the event, and their observations about the presentation of evidence, however, they will never have the necessary insight relative to the third factor, In consequence, opinions outside of the defense teams assessment will necessarily be missing an essential part of the equation and is simply guess-work.  

Hernandez Background

The facts surrounding the trial include big seductions which bring shady friends, questionable backgrounds, drugs, guns, fast cars all in the attempt to surf the life or cause the demise.

Hernandez had a bright and promising career with the Pat’s.  Limited injuries and what appears to be a personal challenge with fellow fourth round draft pick placekicker Stephen Gronkowski who migrated to tight end.

On June 26, 2013, Aaron Hernandez was arrested for first degree murder of Odin Lloyd, a friend, and five unrelated gun charges. He was also named in a lawsuit stemming from a Miami shooting incident.

He was released from the New England Patriots the same day. He has remained held without bail since.

On August 2013, Hernandez was formally indicted by a grand jury for the murder of Odin Lloyd. The following May 2014, he was again indicted for the 2012 double homicide of Daniel de Abrwu and Safire Furtado.

Explosive bits of information including PCP drug use by the former Pro-player, multiple weapons, immediate “housecleaning” after the murder, texts messages, conflicts of interest, all raising additional motions of admissibility.

If the jury finds the former NFL Top 100 Pro Bowler guilty, he could face life in prison.