Is CTE a Defense for Murder?

Mr. Hernandez stood trial for first-degree murder in Massachusetts, where state law requires the government to prove all elements of a crime, including criminal responsibility, beyond a reasonable doubt. The prosecution was able to provide the details of Mr. Lloyd’s murder with a tight timeline that placed Mr. Hernandez at the scene of the murder, though his lawyer maintained that his client was no more than a witness to the crime. The government also provided a theory to establish Mr. Hernandez’s motive to kill Mr. Lloyd — anger over gossip — and his ample opportunity to premeditate and deliberate.

But under the Massachusetts formulation of the insanity defense, if he were tried today, Mr. Hernandez might successfully assert that, when he killed Mr. Lloyd, he suffered a mental defect that rendered him substantially unable to conform his conduct to the requirements of the law, utterly unable to make himself behave as the law requires. Could the evidence of C.T.E. now create a reasonable doubt about his criminal responsibility? Almost certainly.

Football players in the United States are disproportionately charged with crimes of violence as compared with other professional athletes. One explanation might suggest that participating in a sport that demands aggression and violence selects the most aggressive and violent men for its ranks. An alternative but equally simple explanation might be that aggressive and violent men are naturally drawn to compete in an aggressive and violent sport. And, of course, when large, strong men who have been taught to be aggressive find themselves in a conflict, they are more than capable of responding with brutal force. After all, that’s what they’re paid to do on the football field.

But C.T.E. deprives such players of the ability to handle disputes rationally. Indeed, being afflicted with C.T.E. may well equate to insanity. That’s enough to excuse — at least legally — the potentially criminal, violent actions of former N.F.L. players in many states.

The Boston University study was published too late to help Aaron Hernandez. He had died — probably because his damaged brain could not reason well enough to prevent him from hanging himself — several weeks earlier. But given what we now know about the prevalence of C.T.E. in high-level athletes, especially football players, the field is open for lawyers to begin to show juries just why their clients are unable to conform their conduct and control their emotional impulses.

There are many avenues for intervention on behalf of the men who have spent years treating their heads like battering rams for high salaries. For those men who commit violent crimes, the legal community might start by seeing them as mentally incapacitated individuals with significantly impaired impulse control.

Aaron Hernandez should be sitting in a therapeutic hospital receiving care for a profound brain injury. Instead, his ashes sit with his family. Suicide appears to be another result of C.T.E.

Because of the post-mortem C.T.E. diagnosis, we now know there was substantial evidence that Mr. Hernandez should not have been convicted of first-degree murder. Given the conclusive diagnosis of Stage 3 C.T.E., it is likely that a lifetime of playing football — not Mr. Hernandez’s will — was to blame.

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