Key issues in murder trial of former Patriots tight end Aaron Hernandez

Hernandez’s litany of legal problems and rapid fall from grace is astonishing. As recently as June 2013, he was a respected teammate on the Patriots and in the midst of playing under a $40 million contract. Today, Hernandez faces three murder charges, a cadre of other charges, seven-figure lawsuits and likely millions in legal fees.
Publish date:

It’s been nearly 18 months since former New England Patriots star tight end Aaron Hernandez was arrested at his home in North Attleboro, Mass., for the execution-style murder of Odin Lloyd. In a matter of days the 25-year-old will finally face judgment. Massachusetts Superior Court Judge Susan Garsh will preside over Hernandez’s trial, which will likely begin before Feb. 1 and could last as long as three months. Twelve jurors will decide if Hernandez murdered Lloyd, a semipro football player who was dating the sister of Hernandez’s fiancée​ and whose body was found shot to death in an industrial park less than a mile from Hernandez’s home. Jurors will also decide if Hernandez is guilty of five weapons charges connected to the murder.

Hernandez’s legal woes won’t end with the Lloyd trial. In a separate prosecution, he faces charges for the murders of two men, SafiroFurtado and Daniel de Abreu, who were gunned down while leaving a Boston nightclub in 2012. Hernandez also faces criminal charges for assault and battery and for threats to do bodily harm. Those charges stem from Hernandez’s behind-bars confrontations with a fellow prisoner and a jail guard. Hernandez then has civil lawsuits with which to contend, having been sued for the wrongful deaths of Lloyd, Furtado and de Abreu and for allegedly shooting his "friend" Alexander Bradley, a former close associate of his, in the face.

Hernandez’s litany of legal problems and rapid fall from grace is astonishing. As recently as June 2013, he was a respected teammate on the Patriots and in the midst of playing under a $40 million contract. Today, Hernandez faces three murder charges, a cadre of other charges, seven-figure lawsuits and likely millions in legal fees.

Here's a look at the key issues at stake in Commonwealth of Massachusetts v. Aaron Hernandez.

• VIDEO: Early Super Bowl preview | Super Bowl XLIX Coverage Hub

Explaining the charges

Hernandez faces six charges relating to Lloyd’s death. The most serious is first-degree murder, which requires Bristol County prosecutors to prove that Hernandez intentionally killed Lloyd and with premeditation. If jurors find Hernandez guilty of first-degree murder, he would spend the rest of his life in a Massachusetts prison (Massachusetts law does not allow for the death penalty) without a chance for parole.

Legal aspects of the Mueller Report on NFL's handling of Ray Rice case

​Jurors in Massachusetts murder trials can elect to convict a defendant of a lower degree of murder. This is significant for Hernandez if jurors conclude that he intentionally killed Lloyd but not with premeditation. Jurors, for instance, might decide that Hernandez did not set out to murder Lloyd, but that perhaps they had an argument during the car ride that preceded Lloyd's death and Hernandez then intentionally killed Lloyd. A conviction for second-degree murder would carry a life sentence, but Hernandez would have the opportunity for parole after 15 years.

​Alternatively, if jurors believe that Hernandez killed Lloyd in the heat of the moment or in response to Lloyd provoking him, they could convict him of voluntary manslaughter. This scenario seems unlikely given that Lloyd was reportedly shot five times in an execution-style killing. An execution suggests a deliberate killing rather than a spontaneous one. ​Still, juries can be unpredictable. They also sometimes reach compromise verdicts in order to avoid becoming a hung jury. Should Hernandez be convicted of manslaughter, he would face up to 20 years in prison.

Hernandez also faces five weapons charges for carrying a firearm and ammunition without a license and firearm identification card, and for carrying a large capacity firearm. He faces up to 29 years in prison if convicted on all five weapons charges, but it's more realistic that he would receive a sentence in the ballpark of five to nine years. If Hernandez is convicted on only one or two of the weapons charges, he would receive an even shorter sentence and one that might not prove much longer than his time already served. In any sentence, Hernandez, who has been in jail for 18 months, would get credit for time served.

The legal significance of joint venture and potential impact of drug use

Crucially, Bristol County prosecutors do not have to prove that Hernandez pulled the trigger in order to prove that he is guilty of first-degree murder. Under Massachusetts law, prosecutors can obtain a conviction through what’s known as "joint venture" theory. This theory expands the scope of those responsible for a felony to those who significantly assisted in the carrying out of the felony. Joint venture enables prosecutors to convict Hernandez and his two alleged accomplices, Ernest Wallace and Carlos Ortiz, of first-degree murder even though only one of them might have pulled the trigger; it allows the prosecution to tell jurors that even if they’re not certain that Hernandez was the "trigger man," they should nonetheless convict him of first-degree murder if he planned Lloyd’s murder and played a key role in carrying it out.

Aaron Hernandez appears in court, trial could last more than two months

​Joint venture does not guarantee a conviction. Prosecutors must establish that Hernandez, Ortiz and Wallace shared the intent to murder Lloyd. A review of case law in Massachusetts indicates that “shared intent” can be difficult to prove at times. If jurors aren’t convinced that Hernandez pulled the trigger and if they’re not certain that Hernandez wanted Ortiz or Wallace to pull the trigger, jurors likely wouldn’t find that Hernandez possessed the intent that Lloyd be murdered. Case law also indicates that shared intent is difficult to prove when the alleged joint venturer was high on drugs or inebriated. Given the distinct possibility that Hernandez’s attorneys will introduce evidence suggesting that Hernandez, along with Ortiz and Wallace, were under the influence the night of Lloyd’s death, expect Hernandez’s attorneys to assert their client lacked the mental wherewithal to have intended to commit murder.

The prosecution's weaknesses and challenges

The Bristol County prosecutors' case against Hernandez for the murder of Lloyd is problematic. Most glaringly, authorities have not found either the murder weapon or a credible witness who could offer an eyewitness account of Hernandez murdering Lloyd. Hernandez’s attorneys will exploit these points. Watch for them to repeatedly encourage jurors to reason that no gun and no eyewitness should mean no conviction.

Prosecutors must also retain the attention of jurors over many weeks. This is no small task, particularly when complex and technical evidence is introduced and when expert witnesses provide dry, but nonetheless important, testimony. The bar for a criminal conviction is also high: The 12 jurors must unanimously agree there’s no reasonable doubt that Hernandez is guilty. Put another way, a seemingly decisive 11 to one vote by jurors would result in a hung jury and no conviction.

Lastly, new Massachusetts governor Charlie Baker, a Republican, caused some uncertainty for the prosecution by apparently voiding the appointment of Thomas Quinn as the new district attorney for Bristol County. Outgoing Massachusetts governor Deval Patrick, a Democrat, had appointed Quinn last month to replace Sam Sutter, who had won election as mayor of Fall River. The voiding seemingly removed the prosecutor in charge of Hernandez’s trial, thus opening the door for Hernandez’s attorneys to potentially petition for a mistrial or at least a delay. Last Wednesday, Baker’s legal counsel said Quinn’s appointment was not voided, but uncertainty over the matter persists.

The prosecution's key evidence against Hernandez

Despite road bumps, prosecutors still have multiple sources of incriminating evidence against Hernandez and probably enough to secure a conviction. Consider the prosecution’s strongest evidence:

• Damning witness testimony and the potentially crucial role of Shayanna Jenkins: Numerous witnesses will provide testimony that portrays Hernandez in a very suspicious light. None of these witnesses will explicitly say, I know that Aaron Hernandez murdered Odin Lloyd, but plenty of them will point jurors in that direction. As many as 305 people, in fact, are listed as potential witnesses for the prosecution. Most of them won’t be called, but prosecutors believe each has information or insight that could help prove the case. The list includes names familiar to sports fans, most notably Patriots coach Bill Belichick and team owner Robert Kraft, but other witnesses are more likely to play significant roles.

Along those lines, several witnesses will be called to establish the relationship between Hernandez and Lloyd and their proximity to one another the night of Lloyd’s death. For instance, Lloyd’s friend Darryl Hodge is expected to testify about how well Lloyd and Hernandez knew each other and about Hernandez reaching out to Lloyd the night Lloyd was killed. Several other witnesses will offer similar testimony. This includes Lloyd’s sister, Olivia Thibou, who will say that she saw her brother get into a Nissan Altima driven by Hernandez shortly before the murder. Prosecutors want jurors to infer a close linkage between Lloyd and Hernandez and to envision Lloyd and Hernandez as next to one another the moment Lloyd was killed.

The most important prosecution witness may turn out to be Shayanna Jenkins, Hernandez’s fiancée​ and the mother of his two-year-old daughter. Prosecutors believe that Jenkins disposed of the gun Hernandez allegedly used to murder Lloyd (a .45-caliber Glock pistol​). Prosecutors have leverage over Jenkins. She’s been charged with perjury stemming from grand jury testimony where she claimed awareness to only one gun in Hernandez’s home. Jenkins’ testimony contradicted that of Hernandez’s maids, who testified to observing multiple guns in the home. To date, Jenkins has not cooperated with prosecutors in implicating her fiancée​. She has reportedly been offered immunity, whereby if she truthfully testifies to moving the gun she would not be charged with accessory after the fact, a charge that under Massachusetts law carries a potential prison sentence of seven years. Jenkins has thus far refused the immunity offer and has remained loyal to Hernandez.

Judge: Hernandez's mother, fiancée can attend trialSome have speculated that Hernandez should try to marry Jenkins so he could invoke spousal privilege and prevent Jenkins from testifying. This speculation misunderstands how spousal privilege works, particularly in Massachusetts. First, only the testifying spouse (in this scenario Jenkins) can decide to invoke the privilege, not the defendant. Second, the privilege only covers communications during marriage, not communications during an engagement. In other words, even if Hernandez and Jenkins were married tomorrow, she could not raise the privilege in regards to whatever Hernandez told her in the hours preceding and following Lloyd’s death. Massachusetts also requires a marriage license and thus does not recognize "common law" marriages. This means that Hernandez and Jenkins would be barred from arguing that by living together they were effectively married. Lastly, the privilege only extends to communications, not behavior. Jenkins’ observations of Hernandez around the time Lloyd was killed are not protected.

• Suspicious video and photograph surveillance evidence: Video and photographs will play an instrumental role in the trial and help the prosecution tell jurors a sensible narrative. Images from surveillance cameras in and around Boston on the night of the murder will, according to prosecutors, show Hernandez driving a silver Nissan Altima with Lloyd, Ortiz and Wallace as passengers in the car. This Altima reportedly matches the same color and make of a car that Hernandez had rented from Enterprise days earlier.

Exploring Adrian Peterson's legal options following failed appeal

​​Jurors will then see a video from a security camera located near the industrial park where Lloyd was killed. Taken minutes before Lloyd was killed, the video will allegedly show the Altima and four men in the car. Prosecutors will tell jurors those men are Hernandez, Lloyd, Wallace and Ortiz. Another video from the same camera will show the Altima approximately five minutes after the time prosecutors say Lloyd was killed. It remains to be seen whether either video is sufficiently clear or if they are blurry and dark. If jurors conclude that Hernandez and Lloyd are together in the video, it would be a devastating piece of evidence.

A final video will come from surveillance cameras in Hernandez’s home. This video was taken several minutes after Hernandez was allegedly caught on camera leaving the industrial park, and in it Hernandez is shown walking around his home. The video displays Hernandez carrying an item that resembles a gun, though not clearly a .45-caliber Glock pistol.

• Recorded jailhouse communications: The prosecution intends to introduce recordings of Hernandez’s phone conversations while he’s been in jail. While the contents of those conversations remain unknown, conversations between Hernandez and visitors are expected to help the prosecution. The prosecution also intends to introduce implicating evidence gleaned from recordings of jailhouse calls by Wallace and Hernandez’s cousin, Tanya Singleton, who recently pleaded guilty to contempt of court for refusing to cooperate in the investigation of the Boston murders. Watch for prosecutors to claim that Hernandez and his alleged accomplices employed "code words". How well prosecutors can "translate" those words will likely be a point of contention during the trial.

• Cell phone triangulation: Prosecutors will attempt to position Hernandez as driving from Lloyd’s home in Boston to the murder scene in North Attleboro through the physical localization of Hernandez’s cell phone. This process, known as cell phone triangulation, entails positioning a cell phone’s location to a nearby cell tower at a particular place and time. Expert testimony will be offered that locates Hernandez’s phone in connection with cell towers from Boston to near the industrial park and in a pattern that matches a drive from Boston to the park. This technical linkage would suggest that Hernandez, or at least his phone, was very close to Lloyd before and during his death. If jurors are convinced that Hernandez was with Lloyd at the industrial lot when Lloyd was killed, they are much more likely to connect Hernandez to Lloyd’s murder.

• Bullet casings and gun residue: Prosecutors will also introduce evidence that leaves no doubt that Lloyd was killed by a .45-caliber Glock pistol. This evidence will include five .45-caliber casings found at the scene. In what jurors might regard as damning evidence, prosecutors will also introduce a .45-caliber casing found by an Enterprise attendant who cleaned the Nissan Altima after Hernandez returned it.

The exhibit list for prosecutors also includes reference to a "GSR Test", which refers to a gun residue test. The inclusion of a GSR Test signals that some gun residue has likely been found connecting Hernandez to Lloyd’s death. The strength of this evidence remains to be seen, but residue from a .45-caliber Glock pistol in the Nissan Altima, Hernandez’s clothing or furniture in Hernandez’s home would better link Hernandez to the murder.

• Hernandez’s suspicious behavior after Lloyd was killed: Prosecutors will ask jurors to consider why Hernandez would behave the way he did in the aftermath of Lloyd’s death if he had nothing to do with the murder. They will contend that Hernandez destroyed his home security system and cell phone, and hastily hired house cleaners to scrub his mansion. Prosecutors also intend to show that Singleton bought a bus ticket for alleged accomplice Wallace so he could get to Florida soon after the murder. While none of these actions prove that Hernandez murdered Lloyd, and while Hernandez’s lawyers will argue that they are taken out of context and exaggerated, they also occurred at a time and in a sequence that casts doubt on Hernandez’s innocence.

• Gun and ammunition evidence: Evidence for the weapons charges includes guns and weapons seized by police at Hernandez’s home, at an apartment he rented (also described as his "flop house") in Franklin, Mass., and from his Hummer. Photos of Hernandez with guns will also be introduced. Whether Hernandez’s attorneys can successfully argue the guns and ammunition were not Hernandez’s remains to be seen.

If Hernandez is convicted of first-degree murder, the five weapons charges would prove inconsequential since Hernandez would be sentenced to life in prison. But if Hernandez is convicted of a lower degree of murder or avoids a murder conviction altogether, these weapons charges would become crucial in determining how long he goes to prison. It would be up to Judge Garsh to determine if a sentence for a weapons conviction would run concurrent or after a sentence for second-degree murder or manslaughter.

Hernandez's defense strategy

Hernandez does not have to prove that he is innocent, nor must he offer an alternative explanation for why Lloyd died. Hernandez also does not have to testify, and he almost certainly will not. His lawyers only need to give at least one juror reasonable doubt that Hernandez is a murderer and a violator of gun and ammunition laws. The main defense strategy will thus be to repeatedly attack the prosecution’s evidence and witnesses and to raise numerous questions about the prosecution’s central narrative.

Ruling to throw out texts damages case against Aaron Hernandez

Hernandez’s ability to carry out this legal strategy has been enhanced by several pretrial rulings that limit the universe of incriminating evidence. The most important pretrial ruling occurred last month, when Judge Garsh ruled that text messages sent by Lloyd prior to his death were inadmissible. This was a serious setback for prosecutors. Lloyd's texts would have helped prosecutors establish that Lloyd was with Hernandez minutes before Lloyd’s death and possibly indicate his fear of Hernandez. Prosecutors have also been barred from mentioning Hernandez’s Boston murder case or his other "bad acts" such as allegedly shooting Bradley in the face. The only way character evidence against Hernandez can be introduced is if his attorneys voluntarily make his character an issue during the trial. Don’t expect that to happen.

Aided by these pretrial rulings, watch for Hernandez’s attorneys to highlight certain themes:

• No plausible motive for Hernandez to kill Lloyd: To date, the rationale for Hernandez allegedly murdering Lloyd remains a mystery. The working theory is that Hernandez was incensed with Lloyd after learning that he spoke with certain individuals at Rumor, a nightclub in Boston, on June 14, 2013. Hernandez apparently regarded Lloyd as disloyal for having this conversation. Hernandez, according to this theory, then planned a hit on Lloyd and carried it out with the help of Wallace and Ortiz.

While plausible, this explanation for why a successful and wealthy NFL player would risk it all is not an easy sell. Jurors will likely question why Hernandez would resort to planning Lloyd’s murder when his grievance apparently centered on a mere conversation. Prosecutors must convincingly explain the significance of the nightclub conversation and its connection to Hernandez. If they don’t, jurors will likely develop doubts that Hernandez would plan a murder. Jurors could still convict Hernandez without accepting the motive provided by prosecutors, but the conviction would likely be for a lower degree of murder.

• The "Everyone was high" defense -- and a potential reason why Belichick and Kraft may testify

Hernandez’s attorneys might offer a narrative whereby Hernandez, Lloyd, Wallace and Ortiz were on drugs. This would be designed to suggest that a high, perhaps even hallucinating, Hernandez lacked the requisite mental capacity to plan and carry out a murder. To be clear, even if jurors conclude that Hernandez was high, they could still convict him of second-degree murder. It would be more difficult, however, to convict him of first-degree murder if jurors surmise that he was not in the kind of mental state that would allow him to plan a murder.

Bill Belichick, Robert Kraft on witness list for Aaron Hernandez trial

​A drugged-out defense has a number of flaws. Jurors may find it unpalatable to essentially reward Hernandez for using illegal drugs. Jurors might also question just how "stoned" Hernandez was on the night in question. After all, Hernandez was apparently able to drive from Boston to North Attleboro, which takes about an hour, at night, without being pulled over or crashing (though his rented Altima reportedly incurred damage to the driver’s side mirror).

Belichick and Kraft could help the prosecution rebut a defense premised on drug use. If they testify that Hernandez typically followed team rules and avoided drug use in his employment, it would suggest that he was less likely to abuse drugs so substantially that he could be unable to plan a murder.

• Concussion syndrome, neurological injury and insanity -- and another potential role for Belichick and Kraft: A wild-card defense for Hernandez’s attorneys would be to assert that he suffered concussions and brain damage as a result of playing football and consequently lacked the mental capacity to plan a murder. This would be an audacious defense and one difficult to establish without corroborating medical evidence.

Hernandez missed 10 regular season games over the course of three NFL seasons, but those missed games were attributed to knee and ankle injuries, not to concussions or other brain injuries. There are also no reports that Hernandez suffered a concussion while playing at the Florida from 2007 to 2009. The only report connecting Hernandez to brain injury is a story published by the Hartford Courant in 2007 indicating that Hernandez suffered a concussion while he was a senior at Bristol (Conn.) Central High.

Belichick and Kraft might bolster the prosecution in rebutting a concussion defense by testifying that Hernandez showed good neurological health during his time with the Patriots. As evidence, they could point to Hernandez's commanding grasp of Belichick’s notoriously complicated playbook. This line of testimony would help disprove a concussion defense.

Cleared of conduct code violation, what comes next for Jameis Winston

​Alternatively, Hernandez might offer an insanity defense, which would command he be institutionalized rather than incarcerated, or a diminished capacity defense, which might result in Hernandez being convicted of a lesser offense. In 2014, Hernandez’s attorneys sought his personnel records from the Patriots, and the Patriots released some of those records as part of an agreement with Hernandez’s attorneys. Those records likely contain information the Patriots obtained in conducting pre-draft background checks on Hernandez, as well as impressions of Hernandez from Patriots scouts and coaches. It seems unlikely those records would paint Hernandez as insane. The Patriots signed Hernandez to a five-year, $40 million contract extension in 2012. If the team believed he was insane or dangerous, it’s doubtful it would have agreed to such a deal. If called to testify, Belichick and Kraft would likely provide testimony along those lines.

What to look for in jurors

The composition of Hernandez’s jury could prove decisive. The jury selection process began last week and will likely continue the rest of this week. More than 1,000 prospective jurors have filled out a 51-question questionnaire that asks whether they are Patriots fans and whether they have tattoos, among other topics. Approximately 80 prospective jurors will make the first cut and will answer questions in person from Judge Garsh. Each side will be allowed 18 preemptory challenges, which instantly excuses a prospective juror. If necessary, additional prospective jurors may be brought in to answer questions from Judge Garsh. This process will continue until 12 jurors and six alternates are selected.

The prosecution and defense undoubtedly have different preferences for jurors. The prosecution likely wants jurors who tend to value law and order and trust law enforcement. These jurors may have relatives or close friends who are in law enforcement. They may also be older on average and relatively conservative. Hernandez’s attorneys, in contrast, likely favor jurors who are more distrustful of authority, more skeptical of police and more embracing of conspiracy. These jurors may be younger on average and unlikely to associate tattoos (Hernandez has several) with crime. Jurors who acknowledge being fans of Hernandez while he played for the Patriots would also be appealing to Hernandez’s attorneys.​

One thing is for certain: Hernandez will receive a fair trial for purposes of the law. As explained earlier on, a jury will be impaneled for Hernandez’s trial even if it takes a while.

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.