New double-murder charges devastating for Aaron Hernandez
In a stunning development, former New England Patriots tight end Aaron Hernandez has been charged with two new murders. A Boston grand jury has indicted him with killing Daniel Abreu and Safiro Furtado, who were shot outside the Boston nightclub Cure on July 16, 2012. Hernandez already faces murder charges for the death of Odin Lloyd, who was shot dead on June 17, 2013 near Hernandez's home.
According to reports, Hernandez is shown on a surveillance video on July 16, 2012 driving a Toyota 4Runner around the nightclub with Alexander Bradley -- who is suing Hernandez for allegedly shooting him in the eye in February 2013 -- a passenger. The shooting itself, however, was reportedly not captured on video. A third person shot, Aquilino Freire, told police he saw a man with a similar physical appearance to Hernandez driving the car from where shots were fired. Prosecutors reportedly have the murder weapon and can sufficiently link it to Hernandez.
Possibility of two murder trials and strengthened cases
This is devastating news for Hernandez's legal team. For starters, it means that prosecutors now have two opportunities to convict him for murder. This is in addition to the weapons charges he faces and charges for assaulting a fellow inmate. Keep in mind, the Boston shooting happened in Suffolk County, Mass., whereas the shooting of Odin Lloyd occurred in Bristol County, Mass. Each county can bring separate murder prosecutions against Hernandez. Prosecutors from each county will determine whether Hernandez will face two separate trials and, if so, the timing of those trials. Given that the Lloyd prosecution is now roughly nine months in, it is likely that Hernandez will first face a trial for that case. No matter how Hernandez is prosecuted, his legal expenses will soar as attorneys defend three murders occurring at different times and places.
Second, prosecutors in the Lloyd case can now better explain why Hernandez would kill Lloyd. It is expected that prosecutors will argue that Hernandez killed Lloyd because Lloyd knew about Hernandez's involvement in the murders of Abreu and Furtado and had shared information about Hernandez's involvement to others or was going to share information. Previously, prosecutors lacked a compelling narrative as to why Hernandez would kill Lloyd. Prosecutors were also limited by the fact Hernandez's alleged two accomplices in the killing of Lloyd -- Carlos Ortiz and Ernest Wallace -- were deemed by prosecutors to be either unreliable or uncooperative. With an improved narrative, prosecutors are no longer as reliant on either Ortiz or Wallace to convict Hernandez. The absence of a murder weapon is also less damaging to the prosecution's case.
Third, the fact that Massachusetts permits murder convictions on "joint venture" theory seriously disadvantages Hernandez. In Massachusetts, a person can be convicted of murder if he or she assists in the carrying out of a murder. This means that Hernandez would not need to be the "trigger man" to be convicted on any of the murders. If he was in the car and assisted in the shootings of Lloyd, Abreu and Furtado, he would likely be deemed a murderer.
One possible benefit to Hernandez, as previously reportedly on SI.com, is that Massachusetts courts have found that an alleged joint venturer can avoid a conviction if intoxicated or high on drugs. There are many reports linking Hernandez to drugs and alcohol the night of the murders. One defense theory would be that someone "too high" or "too drunk" lacks the requisite intent to partake in a crime, and that Hernandez was very high or drunk on the nights of both murders. Keep in mind, this is a weak defense, especially if Hernandez was capable of carrying out other functions, such as driving and texting.
The fact that police have not found the murder weapon for Lloyd's killing will also be emphasized by Hernandez's attorneys, who only need one juror to have reasonable doubt for a hung jury. There is also an absence of video showing Hernandez killing anyone. Hernandez's attorneys will also surely question why the description of a light skinned Hispanic man with short hair necessarily matches Hernandez and not countless other men who may have been in Boston that night. Along those lines, Hernandez's attorneys will ask Freire about the quality of his memory of a nighttime event, especially if he was also in trauma from being shot.
Unfortunately for Hernandez, prosecutors have powerful forms of indirect evidence that incriminate Hernandez in spite of the apparent absence of direct evidence. This includes damning text messages and surveillance video of Hernandez at the murder scenes near the time when the murders occurred.
Impact on NFL and presumption of ignorance
The charging of Hernandez for two separate murders, occurring nearly a year apart, raises serious questions about how Hernandez could live a double life of a triple-murderer and NFL player. How could his teammates and coaches have no idea? Were suspicions raised at any point, including by the league or players' association? The fact that Hernandez kept a "flop house" in Franklin, Mass., which was allegedly visited by Patriots players, reflects even worse on their apparent ignorance.
Patriots salary cap relief
From a football management perspective, the Patriots may benefit from today's news. When Hernandez signed a $40 million contract extension in August 2012, his contract reportedly contained language assuring there were no circumstances that would prevent him from meeting his contractual obligations. If Hernandez had already murdered two people by that point, he would have signed the contract in bad faith. The Patriots now have a compelling argument that they owe him no money on the deal and thus should receive associated salary cap relief from the NFL. The team can also demand that Hernandez reimburse the team.
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.