The Sheriff of Bristol County announced yesterday that former Patriot tight end, Aaron Hernandez, was involved in a fight with another inmate on Tuesday. The sheriff only said that there was a brief altercation in an area where inmates are not supposed to contact each other; neither man was injured; and an investigation is underway. Later "news" outlet TMZ, citing "sources extremely familiar with the situation," said that Hernandez was unrestrained, the other man was wearing handcuffs. In addition, TMZ said that the other inmate had been "talking smack" to Hernandez. It remains to be seen if these factual allegations have any merit at all.
Today's Sun Chronicle reports that the sheriff will likely file charges. Against whom? Will the sheriff bring charges against Hernandez, the other man, or both of them? There are many other questions that I expect will be answered after the full investigation. Here are some that come to my mind as a criminal defense attorney.
What will the charges be? Assault and battery? Assault and battery with a dangerous weapon such as a shod foot or handcuffs? Will the second man agree to press charges? Will Hernandez agree to press charges? If neither agrees to testify, where will the evidence of a fight come from? A video recording? Is a security video sufficient to prove the elements of what ever is charged? Don't they each have a Fifth Amendment right against self incrimination which would dissuade them from testifying against each other? Under these circumstances does the sheriff really want the media circus and expense involved with transporting these two to the New Bedford District Court?
It is interesting to speculate why these two men were in a restricted area together, but that has very little relevance to the potential criminal charges. The question will be whether either or both committed some type of assault that is provable in court.
If the charge is misdemeanor assault and battery, whoever is charged should be given an opportunity for a hearing before a magistrate to determine if there is probable cause to issue a criminal complaint. This is where the real potential evidence will be unveiled, whether it be witness testimony, video recordings, or both.
In my experience, inmates are reluctant to testify against other inmates. If they do, they are not treated well by the population when they return to custody. Moreover, I would be somewhat surprised to learn that either Hernandez or the other man even reported the fight to corrections officers. In jail, that also falls into the so-called "rat" category.
I fully expect that a video recording exists, since most places inside of jails are monitored with cameras. So, lets assume that the video will be the evidence. Try to imagine, however, a trial where no witness testifies as to what really occurred, and all the evidence comes from a video screen. And remember, it is illegal for these recordings to include audio, so in this situation there will be no evidence of words spoken before or after the altercation. Is such a video likely to provide proof beyond a reasonable doubt? I suppose that we shall see, but if the parties are not interested, why bother? I think we can safely assume that not all jailhouse violence results in criminal charges. This case however, involves a celebrity, and that can change everything.