Strategy for Hernandez's defense lawyers
Sports Illustrated Legal Analyst Michael McCann offers insight into how
's legal team should defend him against first degree murder charges
and gun-related charges.
On Wednesday afternoon, former New England Patriots star tight end Aaron Hernandez was charged with first-degree murder (along with five other gun-related offenses) in connection with the death of Odin Lloyd, whose body was found about a mile from Hernandez' home last Monday. Hernandez was arraigned in Attleboro (Mass.) District Court and pleaded not guilty to all charges. He was denied bail and will remain in jail. In Massachusetts, the charge of first-degree murder carries a life sentence without the chance for parole.
Here is a look at the case against Hernandez.
The Incriminating Evidence
In the arraignment, assistant district attorney Bill McCauley detailed Hernandez's central role in Lloyd's murder. Purported text messages from Hernandez and a supposed surveillance tape from Hernandez's home of Hernandez holding a gun while saying "You can't trust anyone anymore" before getting in his car to pick up Lloyd were described as crucial pieces of evidence. Also central to the case is apparent surveillance footage -- and the curious deletion of certain footage -- from Hernandez's home, as well as statements from witnesses who paint Hernandez as angry with Lloyd. Although prosecutors have apparently not found the gun used to kill Lloyd, McCauley claims Hernandez is linked to a shell casing that matches the caliber of bullet used to shoot Lloyd. The link is through a piece of bubble gum that purportedly Hernandez chewed and was found next to the casing.
The Case Moving Forward
Under Federal and Massachusetts law, Hernandez has a right to a "speedy" trial. In Massachusetts, this is generally meant to mean a trial within 12 months of an arraignment. Like other states, Massachusetts law also establishes a court scheduling preference for criminal trials over civil ones. But do not expect a swift resolution. The case could easily go on for months and well into the winter, and the trial itself could take over a month. Until a trial starts, there will be pretrial hearings over the discovery of evidence and scheduling matters.
Defending the Murder Charge
SI WIRE: Hernandez charged with first-degree murder
While the evidence articulated by McCauley paints Hernandez in a guilty light, law enforcement will now have to share evidence with Hernandez's attorneys as part of the pretrial discovery process. Hernandez's attorneys will scrutinize all aspects of the evidence, including how it was obtained, examined and stored. They will look for any ways to cast doubt. Also expect his attorneys to challenge the police's alleged timeline of events. Along those lines, defense counsel will probably offer an alibi as to Hernandez's whereabouts when Lloyd was killed. Hernandez also has the financial resources to hire DNA experts and others with technical skills who will rebut the prosecution's science. Remember an obvious point but crucial: Hernandez does not have to prove that he is innocent; he only has to provide enough doubt that jurors don't believe the prosecution's case beyond a reasonable doubt.
Consider some of the specific evidence mentioned in the arraignment and how Hernandez's attorneys might challenge it.
First, no gun has been found. While defendants have been convicted of murder without the murder weapon being found, it makes the case more difficult for prosecutors. If Hernandez goes to trial, his attorneys would stress to jurors that the absence of a gun should give them pause for doubt. After all, how can they be sure Hernandez shot Lloyd when the gun was never recovered?
Second, be prepared to hear the phrase "taken out context" mentioned repeatedly by Hernandez's attorneys. Every piece of evidence that portrays Hernandez as guilty will be regarded as "taken out of context." Here are some examples:
• A videotape where Hernandez is shown walking with a gun on the night of the murder. His lawyers will likely assert commonality, that this is not unusual behavior by Hernandez. Perhaps they can show with some corroborating evidence or testimony that Hernandez walks around with guns with regularity to protect his property.
• A text where Hernandez says "you can't trust anyone anymore" right before he picks up Lloyd. Hernandez's lawyers might maintain that while he was perhaps unhappy with Lloyd he was not planning to kill or hurt him, especially since they knew each other. Records of other texts where Hernandez uses that type of language and didn't commit crimes would be helpful.
• Hernandez's home was cleaned the day after the murder. If his home is professionally cleaned regularly then even if the cleaners had the effect of interfering the police's work it does not show Hernandez's intent to harm.
• Hernandez lied to the police. Hernandez's lawyers can argue that any lies had no effect on the police's investigation and therefore caused no legal harm. They might also assert that Hernandez had a constitutional right under the Fifth Amendment to not incriminate himself in conversations with the police. Along those lines, much has been said of Hernandez being "uncooperative", but he's protected from self-incrimination and thus had a right to not answer certain questions.
The bottom line is there will be aggressive attempts by Hernandez's attorneys to explain away every piece of evidence that looks bad. Some will be more persuasive than others.
ROSENBERG: Hernandez couldn't distance himself from his past
Third, witnesses and alleged accomplices who implicate Hernandez will be portrayed as mistaken in fact or observation, or as motivated to pin the murder on Hernandez in order to escape their own punishment.
Fourth, Hernandez may be able to avoid a conviction on first-degree murder if he can show he did not set out to kill Lloyd. There are different types of murder charges and they vary widely in Massachusetts as elsewhere. First-degree murder centers on premeditation -- that Hernandez planned to kill Lloyd and did it. If prosecutors cannot show there was a plan, it would be difficult to convict Hernandez of first-degree murder. Second-degree murder is murder with intent but not premeditation, while voluntary manslaughter is killing in the heat of the moment.
Others Likely to Be Charged
At least two reported accomplices of Hernandez are likely to be charged. If prosecutors are not certain they can gain convictions for all of them, they will likely "work" with each to see if any will turn on the others. The incentive for this is usually a lowering of the charges and significantly reduced jail time.
The problem for Hernandez, however, is that he is charged with first-degree murder, and not as an accessory. Prosecutors want him to be convicted for the murder and will be much more willing to work with the accomplices than him. While the lack of a gun may gave prosecutors reason to allow Hernandez to plead guilty to second-degree murder, it's not clear that is the prosecution's strategy. Also, the gun may eventually be found and linked to Hernandez.
Admissibility of Hernandez's Past Mistakes
Assuming the case goes to trial, expect a battle over the admissibility and persuasiveness of incriminating evidence connected to Hernandez's past. Much has been made of a lawsuit recently filed by Alexander Bradley against Hernandez alleging that Hernandez shot Bradley outside a Miami club in February 2013. The two were said to be friends on vacation together at the time. Bradley's lawsuit is unlikely to play a major role in the criminal prosecution of Hernandez in Massachusetts, especially since Bradley's credibility would be called into question by Hernandez's attorney. According to the Miami police report, Bradley told cops he didn't know who shot him -- a statement that contradicts his later assertion that Hernandez shot him and suggests he was not forthcoming with police.
As reported by SI.com, Hernandez's past also includes police investigations into incidents in Providence, R.I., and Gainesville, Fla., involving guns, documented problems with marijuana and ties to questionable individuals. Generally, evidence of past crimes or wrongs are not admissible for purposes of determining the defendant's character. They can be admissible, however, if they relate to the death of Lloyd and are used to show motive, intent or knowledge. Their admissibility in that latter scenario would depend on whether the judge deems their admission more probative to the case than prejudicial to Hernandez. Decisions like these by the judge would provide grounds for Hernandez to appeal if he's convicted.
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Michael McCann is a Massachusetts attorney and the founding director of the Sports and Entertainment Law Institute at the University of New Hampshire School of Law. He is also the distinguished visiting Hall of Fame Professor of Law at Mississippi College School of Law.