Friday April 3rd, 2015

The nine-week trial of former New England Patriots star Aaron Hernandez for the murder of semipro football player Odin Lloyd is about to conclude. The prosecution has rested and only one or two witnesses are expected to testify for the defense. Judge Susan Garsh has indicated that closing arguments will likely occur Tuesday or Wednesday. Twelve jurors, who will be randomly selected from the group of 15 to vote on the verdict, will then decide Hernandez’s fate. The following analysis breaks down what we have learned so far and what to expect in the trial’s final week.

Prosecution went to trial facing four key challenges

Bristol County (Mass.) prosecutors began the trial facing four main obstacles.

1. Case built on circumstantial evidence

First, prosecutors lack direct evidence that Hernandez murdered Lloyd. The murder weapon, thought to be a .45-caliber Glock pistol, was never found. There is also no eyewitness to or video of the shooting, which occurred on June 17, 2013 in an industrial park a mile from Hernandez’s North Attleboro, Mass., home. In addition, Hernandez’s co-defendants, Ernest “Bo” Wallace and Carlos  “Charlie Boy” Ortiz, were either unwilling to testify against Hernandez or gave prosecutors reason to doubt their credibility. To be sure, many murder defendants have been convicted in the United States based solely on circumstantial evidence. Proving beyond a reasonable doubt, however, is more challenging without direct evidence.

2. No admissible motive

Second, prosecutors don't have an admissible motive for why Hernandez would have murdered Lloyd. Motive is not an element of murder, but jurors often want to hear why a defendant would intentionally kill another human being before sending that defendant off to prison for life. This relates to the link between motive and intent, the latter of which is a required element of first- and second-degree murder: If Hernandez didn’t want Lloyd killed, why would he have intentionally killed him?

Aaron Hernandez trial: Did adversary unwittingly help defense's case?

Since the trial began in January, prosecutors have hinted at friction between Hernandez and Lloyd, but nothing has really stuck. Hernandez reportedly stared down Lloyd in Boston’s Rumor nightclub two nights before Lloyd’s murder, but testimony under cross-examination suggested otherwise. Several witnesses, including Lloyd’s mother, Ursula Ward, also testified that Hernandez and Lloyd were not friends and that Lloyd’s visits to Hernandez’s home were due to Lloyd dating Shaneah Jenkins, sister of Hernandez’s fiancée, Shayanna Jenkins. But other witnesses indicated the two men were friendly and spent a considerable amount of time together, which included smoking marijuana all night at Hernandez’s “flop house” in Franklin, Mass., two nights before Lloyd’s murder. Even if Hernandez and Lloyd weren’t friends, the absence of friendship alone would not establish motive. Lastly, prosecutors introduced testimony by Hernandez’s former friend, Alexander Bradley, that Hernandez viewed others with suspicion. Even if this is an accurate statement about Hernandez, it doesn’t indicate a motive for why Hernandez would have killed Lloyd.

In an ideal world for prosecutors, they would have attempted to establish motive by introducing evidence of a possible connection between Lloyd’s death and the murder of two men, Daniel de Abreu and Safiro Furtado, in Boston in July 2012. Hernandez faces a future murder trial (date to be determined) in Suffolk County (Mass.) for the Boston murders. Some speculate that Lloyd may have been killed because he told others about Hernandez’s alleged role in the Boston murders. If there is any truth to such speculation, it might emerge during the Boston trial. But that trial hasn’t yet happened, and Judge Garsh understandably denied Bristol County prosecutors the opportunity to reference unproven evidence.

3. Pretrial rulings limited incriminating evidence

Third, pretrial rulings by Judge Garsh denied prosecutors of key evidence. This was particularly true of text messages sent by Lloyd minutes before his death. One text, in which Lloyd wrote “I’m with NFL,” would have been valuable for prosecutors to show that Lloyd was presumably with Hernandez at the time of his death. But the statement was “hearsay” since it was made out of court by an unavailable person. While there are many exceptions to hearsay, Massachusetts has not adopted the “present sense impression exception” that would have allowed Lloyd’s text on grounds it reflected his impression of being with “NFL.”

4. Hernandez assembled a top legal team

Fourth, prosecutors went up against a world-class legal team featuring Michael Fee, James Sultan and Charles Rankin. These are three seasoned and skilled attorneys. They did not disappoint in this trial, often winning objections against prosecutors and adeptly cross-examining key witnesses. Regardless of the outcome for Hernandez, he was well represented.

The prosecution’s core case and how joint venture works

Despite these challenges, prosecutors adroitly showed jurors a timeline that paints Hernandez as a plausible mastermind behind Lloyd’s murder. The timeline began long before Lloyd’s death. Jurors heard testimony that said Hernandez, in early 2013, held a Glock pistol in Miami, where he allegedly met with Oscar “Papoo” Hernandez (no relation). Oscar Hernandez, who has pleaded guilty to gun charges, later shipped guns to Aaron Hernandez in Massachusetts. Housekeepers at Hernandez’s home also added testimony that multiple guns could be found at Hernandez’s home prior to Lloyd’s death.

Attempt to link Hernandez's sneakers to crime scene is key to Day 29 of trial

Jurors also heard that Hernandez asked, or demanded, that Wallace and Ortiz drive up from Bristol, Conn., hours before Lloyd’s murder to meet up at Hernandez’s home before they picked up Lloyd. Jurors watched extensive and often mesmerizing video showing Hernandez, Wallace and Lloyd together in a silver Nissan Altima that Hernandez had rented. Hernandez, driving the car, appears to have picked up Lloyd at his Boston home and then driven Lloyd to the industrial park where Lloyd was murdered. Various police officers testified about the crime scene and explained how Lloyd was shot six times, seemingly in an execution-style murder. Prosecutors also introduced footwear impression evidence from the crime scene that mostly matches a type of shoe and size worn by Hernandez.

Evidence following Lloyd’s murder also implicates Hernandez. There is video taken minutes after Lloyd’s death of Hernandez walking around his home holding an item that a Glock employee, Kyle Aspinall, identified as a Glock. Jurors also heard about Hernandez returning the rental car to Enterprise, where a store manager found a shell casing that matched those found at the crime scene.

Hernandez’s behavior in the days that followed Lloyd’s death also raises suspicions. He directed Jenkins to remove a box from his home and give $500 to Wallace, who appeared to be fleeing. Hernandez also lied to Patriots owner Robert Kraft about his whereabouts when Lloyd died. Hernandez, moreover, made a number of suspicious calls from jail, though many of those calls were deemed inadmissible.

Kraft's testimony shows Hernandez apparently lied to his former boss

Prosecutors thus offered a compelling case to jurors that (1) Hernandez possessed the type of firearm used in Lloyd’s death, (2) Hernandez was at the crime scene when Lloyd died and (3) Hernandez conveyed suspicious orders to Wallace, Ortiz and Jenkins prior to, and after, Lloyd’s death. While this evidence does not prove that Hernandez shot Lloyd, it could nonetheless be enough to convict Hernandez.

Massachusetts law permits what are known as “joint venture convictions.” In them, the defendant is convicted of a crime even if he is not the “principal” actor who carried out the crime. Precedent from Massachusetts courts indicates the following three elements are needed for a joint venture conviction of Hernandez:

1. Hernandez was present at the scene of Lloyd’s murder.

2. Hernandez had clear knowledge that Wallace or Ortiz intended to kill Lloyd and that Lloyd’s shooter (Wallace or Ortiz) had the murder weapon with him.

3. Hernandez was willing and available to help Wallace or Ortiz commit Lloyd’s murder. This is usually shown by the joint venturer actively helping the shooter, such as obtaining the gun used to perform the murder or driving the getaway car.

Jurors are likely inclined to find the first and third of these three elements exist: Hernandez seemed to be present at the crime scene and Hernandez appears to have provided assistance to the shooter (for example, evidence suggests Hernandez drove the car and Hernandez may have played a key role in obtaining the gun).

It is less clear, however, whether Hernandez knew that Wallace or Ortiz would shoot Lloyd, or that Hernandez wanted Lloyd’s death. Along those lines, it is plausible that Wallace or Ortiz killed Lloyd without Hernandez’s permission or support and that Hernandez’s wrongful conduct was in helping to cover up a crime, which would not qualify as joint venture murder but rather the crime of accessory after the fact (Hernandez does not face that charge). Prosecutors, however, will tell jurors in closing arguments that Hernandez was the boss. They’ll insist that Hernandez called the shots and that no one would have shot Lloyd without Hernandez’s blessing.

AP Photo/Steven Senne, Pool

The defense’s core case

Hernandez’s defense is straightforward: The prosecution has not shown credible evidence that Hernandez had a motive or intent to kill Lloyd. Similarly, the defense insists, evidence and testimony does not establish that Hernandez was the shooter or, alternatively, that Hernandez was aware that Wallace or Ortiz would shoot Lloyd. As suggested by the defense’s decision to call only one or two witnesses, the defense appears confident that Bristol County prosecutors failed to prove its case beyond a reasonable doubt. It does not appear the defense wants to take a chance by presenting many witnesses, who would face cross-examination by prosecutors.

Hernandez's fiancée says box she removed 'smelled like marijuana'

A recurring theme brought by the defense is that the relationship between Hernandez and Lloyd was one of friendship and dependency. In his opening statement on January 29, 2015, Hernandez attorney Michael Fee introduced a much-discussed idea: Lloyd was Hernandez’s “blunt master” and thus Hernandez, who smoked substantial amounts of marijuana every day, would never want to see Lloyd hurt. Lloyd, jurors were told, had developed his own technique in rolling blunts, and Hernandez embraced Lloyd’s blunts. Along these lines, jurors saw a text message sent by Hernandez to Jenkins in which Hernandez wrote, “O took care of me” after a night of partying in the flop house—a night that preceded Lloyd’s murder by just 48 hours. Prosecutors tried to downplay the “blunt master” defense by noting that Hernandez’s barber, Robby Olivares, and Bradley also supplied Hernandez with marijuana, thus suggesting that the bond between Hernandez and Lloyd was far from essential.

Hernandez’s attorneys also consistently undermined evidence and witness testimony that painted Hernandez in a suspicious light. Jurors heard numerous reasons to question how law enforcement collected, safeguarded and studied forensic evidence. Significant energy was spent​ by Hernandez’s attorneys during cross-examination, for instance, arguing that Hernandez’s DNA on a shell casing may have been transferred by bubble gum. Jurors also heard Hernandez’s attorneys attack prosecutors' attempting to link Hernandez’s text messages and phone calls to a plot to kill Lloyd. To illustrate, jurors heard testimony that Hernandez toasted friends on Father’s Day and spoke glowingly about his infant daughter, Avielle, that same day. If Hernandez was planning a murder hours later, his lawyers hope jurors ask, isn’t it odd that he would have spent such time with loving family and friends? Similarly, Hernandez’s attorneys tried to undermine testimony by Aspinall about whether Hernandez held a Glock pistol minutes after Lloyd’s death. Aspinall acknowledged he was not an expert in watching videos.

Preview of Hernandez’s defense: Will we see the “Angel Dust Defense?”

While Hernandez’s case-in-chief will likely last only one day, there’s a chance it may prove memorable. Judge Garsh will rule Monday morning if Hernandez can call Dr. David J. Greenblatt to the stand. Greenblatt, an expert on marijuana and phencyclidine (better known as PCP or angel dust), could build on earlier testimony suggesting that Wallace and Lloyd were on PCP when Lloyd died.

Aaron Hernandez's cousin testifies with faulty memory on Day 33 of trial

In March, Hernandez cousin Jennifer Mercado testified that she thought Wallace and Lloyd were acting as if they were on PCP when she saw them while walking her dog the night of Lloyd’s death. If Judge Garsh allows Greenblatt’s testimony, he is expected to say evidence of Lloyd’s death and the accompanying behavior of Wallace and Ortiz is consistent with one of those two men, most likely Ortiz, killing Lloyd while hallucinating on PCP. Shooting someone six times, for example, might be flagged by Greenblatt as a sign of a someone who is “crazy” on PCP. If Wallace or Ortiz was on PCP, moreover, it would make sense that Hernandez drive the car instead. Greenblatt might also highlight odd behavior exhibited by Wallace and Ortiz on video in the minutes before and after Lloyd’s death. This includes dancing at a gas station and walking awkwardly around Hernandez’s home.

With these points in mind, recall the elements of joint venture explained above. If Ortiz or Wallace killed Lloyd while hallucinating on PCP, it would be more difficult to show Hernandez shared the intent of the hallucinating shooter to see Lloyd dead.

Options for jurors once they deliberate

When they convene, jurors will deliberate over five charges. The first and by far most significant charge is murder. Jurors will have the option of finding Hernandez guilty of first-degree murder or second-degree murder. 

• Jurors would convict Hernandez of first-degree murder if they conclude he directly, or through a joint venture, killed Lloyd “with deliberately premeditated malice aforethought,” by “extreme atrocity and cruelty" or in “the commission of a crime punishable with death or imprisonment for life.” If convicted of first-degree murder, Hernandez would be imprisoned for the rest of his life with no chance for parole. (Massachusetts does not allow the death penalty.)

• ​Jurors would convict Hernandez of second-degree murder if they conclude he directly, or through a joint venture, killed Lloyd in a way consistent with first-degree murder but without deliberate premeditation or extreme atrocity and cruelty, as second-degree murder does not involve those conditions. Intent is still required. If convicted of second-degree murder, Hernandez would be imprisoned for the rest of his life with the chance for parole after 15 years (depending on whether he faces additional prison time for other charges).

If all 12 jurors do not unanimously agree to convict Hernandez of one of these crimes, they’ll either acquit him (if all jurors agree he’s not guilty) or inform the court that they are deadlocked in disagreement. In the latter case, Judge Garsh would encourage jurors to keep talking. If that fails, Judge Garsh would be forced to declare a mistrial by hung jury and prosecutors would then have to decide whether to re-try Hernandez sometime in the future.

Jurors will also decide if Hernandez is guilty of two counts of carrying a large capacity firearm, carrying a firearm without a license, possession of a firearm without a firearm identification (FID) card and possession of ammunition without a FID card. These charges mainly relate to firearms, including a semi-automatic 7.62-caliber rifle, found at Hernandez’s places of residence and a .22-caliber Jimenez pistol found near Lloyd’s body. Prosecutors spent comparatively little time pursuing these charges, though they did stress to jurors where the related weapons were found and also detailed financial transactions involving Hernandez. If convicted of these charges, Hernandez would likely receive a sentence in the range of 5 to 10 years. He would get full credit for the 21 months (and counting) he’s already served in jail.

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.

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