Apr
19
If ever anyone knew how potent a jury’s power to alter a life’s course, it was Aaron Hernandez. He killed himself days after being acquitted of a double murder in Boston. But he had little cause to celebrate the victory. He was sentenced to life behind bars for another murder, the result of another jury’s convicting him.
I suspect the contrast was more than he could bear.
Professional athletes live on life’s high wire. They know that reputations are made and lost in an instant. Snag a game-winning pass in overtime in a championship game, and you are a hero, forever. Muff the play, and glory is lost.
Yet athletes know there is always tomorrow, the next play, the next competition, the next season. Amid hopelessness hope forever remains.
But life is no game, at least not in the criminal justice system.
Sure, trial has a sporting aspect to it.
Lawyers prepare for their contests with the intensity of athletes There is the drama of trial, where a judge, playing the role of referee or umpire, makes sure the rules are followed. And then there is the final inning, the expiration of the clock, the finish line – pick your metaphor. Trials, like games, end. And there are no ties at trial. One side wins, the other loses.
Only at trial, the athletes are the lawyers.
Athletes and lawyers play for honor, glory and wealth. But lawyers play with the lives of others. Aaron Hernandez, a former tight end and superstar for the New England Patriots, wasn’t a competitor in his trials. He was the trophy over which others fought. He was a plaything.
I suspect the role infuriated and terrified him.
I met with Hernandez after his conviction for the 2013 murder of Odin Lloyd.
Our meeting took place in a holding cell the Souza-Baranowski Correctional Center in Shirley, Massachusetts. I had difficulty getting in to see him, and was turned away the first day I appeared. Jailers would not permit visitors, even lawyers, to dress in blue jeans. This particular pigeon coop had an unusual dress code.
He had just been convicted and sentenced to life imprisonment. He was awaiting trial for the 2012 shootings of Daniel de Abreu and Safiro Furtado. I can’t discuss what we talked about – the attorney-client privilege survives the death of the client. But I can say I was impressed by the fighting spirit within the man. He was Achilles raging at the world. I liked him; I would have liked to have spent more time with him.
Hernandez is from central Connecticut, my home state. Plenty of people know him here, and share stories about the local boy made good, then turned bad, so horribly bad. A life wasted, people say. Today they will mourn a life gone, vanished. Suicide is always an act of betrayal.
When I learned Jose Baez had agreed to try the double homicide, my heart sank. I was sure there’d be a conviction. I wasn’t persuaded that Baez’s victory in the Casey Anthony trial was anything other than a fluke. Blaming her father for the death of her child and then not supporting that claim with evidence cost Baez my respect.
Or was it mere professional jealousy on my part? I am capable, after all, of every form of pettiness.
When Baez won the Hernandez case, I dropped my pride and sat, simply, in something approaching awe over what Baez had accomplished. He has my respect and admiration now. He walks the walk.
I can’t help wondering whether in his final moments Hernandez was overcome with regret. What if he had won that first trial? What if better lawyers, a different jury, had delivered a not guilty verdict in that case? It would have taken only two words to change his life’s course.
I followed the Odin Lloyd trial closely, and a not guilty verdict would not have surprised me. I was surprised by the verdict last week.
This suicide is a punch to the gut. Achilles stormed to the shore not to rage against Agamemnon, but to end his own life. That’s not how the story is supposed to end.
But a sense of honor is a fickle master. Suicide is one way of rejecting the cards dealt in the game of life.
I’ve practiced law for a long time now, and I am no stranger to suicides. Survivors feel regret. What about the call not returned, the letter unsent, the prison visit unmade?
The haters will take glee in Hernandez’s suicide. A life for a life, they will say. Already, sour wits give thanks for this suicide. Think of the savings to society, I saw one Twitter user exclaim.
All I can think of is the waste.
Aaron Hernandez once had it all – youth, fame and fortune. Then he fell into a prison cell. Something called justice told him he’d die in a concrete box, confined until he passed his last breath. I can understand this suicide, even as I struggle to accept it.
Maybe Hernandez is a murderer. At least one jury thought he was; another had reasonable doubts.
But I don’t doubt for a moment that savagery killed Aaron Hernandez. Life without possibility of parole is an unbearable weight; our criminal justice system passes out lengthy sentences far too often.
So the savages won the battle for Aaron Hernandez’s soul this week. The savages wore jailer’s uniforms. Hernandez left the field on a stretcher, never to return. I am sorry he is gone.
Mar
22
Supreme Court confirmation hearings increasingly look like trysts between horny customers posing as suitors and a pre-paid prostitute. We ought to dispense with these hearings, or, at the very least, be honest about the process.
So it is no surprise to learn next to nothing about President Trump’s nominee to fill the vacancy left by the death of Antonin Scalia. Neil Gorsuch sat for some ten hours of questioning yesterday. It was an act of profound intellectus interruptus.
There’s no doubting Gorsuch can do the job. Indeed, the Constitution imposes no formal requirements on candidates. One needn’t even be a lawyer to win a seat on the Supremes. (Although no non-lawyer has ever been seated: only two, James F. Byrnes (1941-1942), and, Robert H. Jackson (1941-1954), came to the court with non-traditional legal educations.)
The American Bar Association, which informally vets candidates, rates Gorsuch as up to the task. It’s hard to quibble with that assessment. Like virtually all of immediate predecessors, he’s a product of one of the nation’s top law schools, having graduated from the Harvard Law School. He even holds an additional law degree, a doctorate in legal philosophy from Oxford University. He is a graceful writer and a supple thinker.
He’s not, judging by his performance at the hearings this week, much of an orator, however. He sounded at once grating, even whiny, in response to questioning. I suppose it’s no wonder he earns his keep as an appellate judge. He has the jury appeal of limp noodle.
That may be unfair. It may be that the eight weeks he spent preparing for the hearing killed the spirit within him. His answers yesterday were all safe and predictable. If we learned anything about Gorsuch yesterday it is that he knows how to stick to his script.
Yes, the judge respects the Court’s precedent: the doctrine of stare decisis is secure, God save the Republic. No, he won’t forecast on how he might decide an issue that comes before him. No one is above the law. He will decide each case on the merits – the facts and law as he sees them. He is beholden to no one.
We didn’t need confirmation hearings for this meaningless drivel.
The confirmation process is easy enough to understand. The president nominates a candidate to fill a vacancy to the nation’s highest court. The Senate, with its constitutional obligation to advise and consent, then must choose to confirm or not. The Senate’s Judiciary Committee holds hearings to discharge this function, hearings at which committee members get to question the nominee; the nominee then responds. The responses rarely rise to the level of meaningful answers.
If the Judiciary Committee votes to confirm, then full Senate then casts its vote. It takes a bare majority, 51 of the 100 members of the Senate to confirm. If determined Senators want to block a vote, they can filibuster, that is, endlessly debate, a candidate’s merits. It takes 60 votes to end a filibuster, thus the so-called “supermajority” cloture requirement. The Senate can suspend this cloture rule to bring a matter to a vote without cloture.
A nominee’s job, then, is to survive the gauntlet.
What was on display at the Gorsuch hearings were the political divisions that immobilize us. Democrats threaten to block the nomination in retaliation for last year’s failure even to schedule for a vote the nomination of Merrick Garland, another well-qualified and oh-so distinguished titan of the Ivy League bar: Connecticut’s Senator Richard Blumenthal is becoming unhinged, bleating about Gorsuch as outside the “legal mainstream,” as though Blumenthal himself had ever walked anything but the safest middle course.
The Republicans, in the meantime, tossed softballs to Gorsuch – we heard about fishing, quirky books and other trivia. I expected more from Ted Cruz, who pitched some of these balls; I half suspect, Cruz himself eyes a seat on the Court.
Here’s the simple truth. Judges decide cases based on the legal doctrines at their disposal and the facts as presented to them. These questions of law and fact are not decided in a mathematician’s vacuum. Judges are often required to weigh the competing values embedded within legal doctrines, choosing to stress one value at the expense of another. A judge pretending to be a mere technician, as all nominees appear to do at these senseless hearings, is being dishonest.
Hence the analogy to prostitution.
Almost any nominee will be qualified to do the job. The law is difficult, but not impossibly so. Any person of good will and normal intelligence can understand it; with hard work, its rhythms can be mastered.
A nominee, then, knows that the satisfaction of his or her ambition is within reach. All he has to do is say the right things to the gemmed mistresses sitting in the Senate. What can do to get to yes, becomes the standard. We learn nothing about the candidates, and everything about the passions of the Senators.
It’s tedious.
Confirm Gorsuch or not. But spare us more senseless hearings. I’m not interested in the magic words one must utter to get the painted ladies in the Senate to give up their charms. We know those fools are for sale, each and everyone of them.