JURIST Guest Columnist Gregory S. Gordon, of the Chinese University of Hong Kong Faculty of Law, discusses the similarities and differences between the Aaron Hernandez and OJ Simpson trials and the potential implications for future criminal cases …

On April 15, 2015, former NFL star Aaron Hernandez was found guilty of first-degree murder for the slaying of Odin Lloyd. The conviction has been widely covered in the press. Those media pieces have focused on a variety of themes, including Hernandez’s unsavory connections to Bristol, Connecticut, his kid-gloves treatment by the Florida Gators football program, his unclear motive for killing Lloyd and his slim chances on appeal. But, much to my surprise, none of the coverage to date has drawn a parallel between the Hernandez proceeding and a similar one that was taking place exactly 20 years ago at this time—the high-profile murder trial of OJ Simpson. Thinking about the two trials, a number of questions arise. Besides the superficial football player connection, are there deeper parallels between them? Has anything changed in 20 years? And what, if anything, do the two trials, as well as the intervening 20 years, tell us about the relationship between the American criminal justice system and those who play for the NFL?

In the first place, there are numerous striking parallels between the two defendants and their cases. Both men were charged with first-degree murder—Simpson for stabbing his ex-wife Nicole Brown and her friend Ronald Goldman and Hernandez for shooting Lloyd numerous times at point-blank range. Each man came from a rough neighborhood and then played for elite college football programs that won the national championship with significant contributions from them (Hernandez for the University of Florida in the 2008-09 season and Simpson for the University of Southern California in the 1967-68 season). Both were local sports heroes in the region where the murders occurred. Owing to their athletic prowess and resultant celebrity, both had gotten away with violent, anti-social behavior for years before the murder charges (Hernandez having assaulted and shot both strangers and friends—which will lead to subsequent legal proceedings — and Simpson having beaten up his wife). At the time of the murders in question, both were living in mansions, located not far from the crime scenes, which became the object of extensive searches that yielded important clues. And both could dig into deep pockets to engage teams of super-lawyers.

In each case, those lawyers dissected every piece of evidence and investigative technique and put them under the microscope. Both cases revealed police missteps along the way and involved evidence that was seemingly disposed of by or at the direction of the defendants. No murder weapon was found in either case. And the respective prosecution teams had to rely on large quantities of forensic and circumstantial evidence. But both legal teams were successful at excluding potentially crucial incriminating evidence—Odin Lloyd’s pre-murder texts to his sister referencing Hernandez, for example, and Nicole Brown’s diary detailing Simpson’s pattern of domestic violence. And, in relation to each proceeding, an army of television legal analysts waxed gloomy about the prosecution’s prospects.

But that is perhaps where the important parallels end. Each murder trial yielded an entirely different result. Simpson, although several years removed from his NFL glory years, was acquitted, while Hernandez, who had recently played in a Super Bowl, was convicted. It is tempting to think that the contrasting denouements are due strictly to certain granular fact variations in each case. And that, along with OJ’s “race card” and jury composition, is what accounts for one man’s liberty (though temporary, as it turned out) and the other’s lifetime incarceration. But the different outcomes may relate to another phenomenon, not as immediately apparent—the public’s changing perception of the NFL.

Granted, that changed perception may not be immediately apparent. Last year, Baltimore Ravens running back Ray Rice was caught on video dragging his unconscious fiancée out of an elevator after knocking her out with a vicious punch. The Ravens immediately came to his defense, aggravated assault charges were dismissed in exchange for pre-trial diversion and Rice was only suspended for two games by the NFL. Although a subsequent video showing the actual punch got Rice fired and banned from the NFL, he has since been reinstated. Then the public learned that in supposedly disciplining his four-year-old son, running back Adrian Peterson viciously beat him with a tree branch all over his body, including his genitals. He was allowed to plead no contest to misdemeanor charges with no prison time and has been reinstated after a suspension. And last month, retired player Darren Sharper, who had been convicted of raping nine women and sentenced to various prison terms in three states, was allowed to plead guilty to similar charges in Louisiana and wrap his other sentences into a global 20-year concurrent prison sentence. A paltry punishment for a multi-jurisdictional serial rapist!

So what, then, does the Aaron Hernandez conviction tell us? That is not entirely clear. On one hand, in light of the Rice, Peterson and Sharper cases, it may just be an anomaly. On the other hand, perhaps it augurs a very subtle but important shift. The bloom seems to be coming off the NFL flower. Concussions have taken their toll with many retired players slowly losing their faculties (via dementia, Alzheimer’s, depression and chronic traumatic encephalopathy) and some committing suicide. Citing fear of head injuries, San Francisco 49er Chris Borland recently retired from the League after a sterling rookie season. And the League has been sued by former players and, just this week, has settled out of court for approximately $1 billion.

In the meantime, apart from the Rice, Peterson and Sharper cases, NFL player run-ins with the law keep mounting. Also in the past year, Ray McDonald, as a San Francisco 49er, was arrested for felony domestic violence and accused of sexual assault (but never charged) and Greg Hardy, while with the Carolina Panthers, was found guilty in a lower court bench trial of misdemeanor assault (and suspended from the NFL – both players are now with new teams). In raw numbers, from 2010 to 2014, the NFL had the highest number of players arrested of all the major American sports. In 2013, the year Hernandez was arrested for Lloyd’s murder, NFL off-season arrest rates spiked 75% in comparison to the previous year, and from 2008 through 2013, they went up 61%. Some now jokingly refer to US professional football as the National Felons League. Perhaps America’s love affair with the sport is starting to sour.

So is it possible the Hernandez conviction represents a tipping point instead of an aberration? We cannot yet know how posterity will view its significance within the overarching narrative of the NFL and the American criminal justice system. But a first-degree murder trial, with its high stakes and drama, potentially offers telling insights into the public’s perception of the killer’s milieu. In 1995, citizens seemed to hold the NFL in higher regard and that might have contributed to OJ Simpson’s acquittal. In 2015, a less rosy view might have factored into Aaron Hernandez’s conviction. The tide may very well have shifted. As Hernandez and his henchmen were driving Lloyd to his doom, he texted his sister that he was with “NFL.” Given the larger context of his murder within the relationship between American professional football and criminal justice, his unwitting use of that metonym might ultimately prove prophetic.

Gregory S. Gordon is Associate Professor and Assistant Dean for the Research Postgraduates Program at the Chinese University of Hong Kong (CUHK) Faculty of Law. He earned his Bachelor of Arts degree (summa cum laude) and Juris Doctor at the University of California at Berkeley. After graduation, he served as law clerk to US District Court Judge Martin Pence (D. Haw.). After a stint as a litigator in San Francisco, he worked with the Office of the Prosecutor for the International Criminal Tribunal for Rwanda, where he served as Legal Officer and Deputy Team Leader for the landmark “media” cases, the first international post-Nuremberg prosecutions of radio and print media executives for incitement to genocide. For this work, Professor Gordon received a commendation from Attorney General Janet Reno for “Service to the US and International Justice.” Prior to joining CUHK, Professor Gordon was a prosecutor with the US Department of Justice and was a tenured faculty member at the University of North Dakota (UND) School of Law and Director of the UND Center for Human Rights and Genocide Studies.

Suggested citation: Gregory S. Gordon, Aaron Hernandez, OJ Simpson and the Evolution of Justice for the NFL?, JURIST – Academic Commentary, April 26, 2015, http://jurist.org/dateline/2015/15/gregory-gordon-aaron-hernandez.