To recap the latest criminal investigation of a football player that has been leading sports news: 23-year-old New England Patriots star tight end Aaron Hernandez was seen with his 27-year-old friend (and boyfriend of his girlfriend's sister) Odin Lloyd Sunday night and early Monday morning. Later Monday, Lloyd was discovered dead of a bullet to the head near a rental car rented by Hernandez. When the police investigated and searched Hernandez's home, both his security system and his cell phone had been smashed into pieces. Also, he'd hired a cleaning crew on short notice.

Meanwhile, his attorney, Michael Fee, issued an odd statement: "It has been widely reported in the media that the state police have searched the home of our client, Aaron Hernandez, as part of an ongoing investigation. Out of respect for that process, neither we nor Aaron will have any comment about the substance of that investigation until it has come to a conclusion." That sort of attorney statement disserves the client and is worse than no statement whatsoever: you can make a statement, but you can't even bring yourself to say "My client didn't shoot his friend in the back of the head"? It would be different if Fee had said "I have a policy of never speaking to the press about ongoing investigations." But that isn't what he said, and Fee does speak about investigations of other clients notwithstanding respect for the process. What should we infer from that? (We can infer that Fee isn't willing to lie for his clients. Good for him for observing ethical rules rarely enforced, but then be more quiet.)

Reported rumor has it that police are about to issue an arrest warrant for "obstruction of justice" against Hernandez, presumably over the smashed security system. ESPN's legal analyst Roger Cossack stated "There's a federal statute in every state that you cannot knowingly destroy evidence" and that soundbite has been quoted for three days of ESPN coverage. Except it may not be that simple.

We'll start off by noting that Cossack probably misspoke. There's no such thing as a "federal statute in every state"; there's a federal statute, or there isn't. And while there's a federal statute for obstruction of justice, 18 U.S.C. §§ 1501 ff., it only applies to federal investigations, so has no bearing on the investigation by local police in Massachusetts. We need to look to Massachusetts state law.

In 1997, the Massachusetts Supreme Court interpreted the scope of criminal law with respect to obstruction of justice in the case of Commonwealth v. Triplett, 426 Mass. 26. Triplett had told a witness not to speak to the state police or the Attorney General's office, and was indicted and convicted for obstruction of justice. The Supreme Court reversed, holding that the common-law crime of obstruction of justice only applied to a witness at a criminal trial. In the absence of a statute, one couldn't go beyond that—even if the defendant did something like "remov[e] fingerprints from a knife."

As best I can tell, Triplett is still good law; as best I can tell, there is still no specific statute for destruction of evidence as an independent crime. If so (and I might have missed something, though I haven't seen any commentary basing "obstruction of justice" on something else), then no legal arrest warrant can issue against Aaron Hernandez for obstruction of justice. He may be guilty of a crime, but it isn't obstruction of justice.

That isn't to say that Hernandez could have destroyed the security tapes with impunity. Destroying security tapes is pretty damning circumstantial evidence, and the maids who cleaned Hernandez's house will likely remember if they were picking up itty-bitty pieces of skull. If it turns out a mutual friend killed Lloyd, Hernandez could be charged with being an accessory after the fact. And when Lloyd's next of kin inevitably sues Hernandez for millions in a civil suit, as they have every right to, they can ask a jury to draw the adverse inference from his conduct.

(Disclosure: I've played poker with Cossack, though he probably doesn't remember me.)