If you’ve been in the system long enough and tried murders and other major felony cases at the superior court level as I have you’d have been highly surprised, if not stunned, at reading about the government in the Hernandez case going to the Supreme Judicial Court (SJC) in the middle of a trial seeking to overturn an evidentiary ruling by the trial judge. It just doesn’t happen. I’d never seen it done in all my years. The chances for success are zero.
That told me a lot about the case. The prosecution is in a panic mode. The judge continues to keep relevant evidence from the jury. The case is slipping away. I’ve written before that this would happen, here, and here and here. Important facts are being kept out of evidence. This has force the prosecutors to take this unheard of plea to the SJC telling Justice Cordy that Judge Garsh’s rulings: “will seriously impair the government’s ability to present its case to the jury and so deprive the Commonwealth of a fair trial.’’ Cordy turned a deaf ear to the plea. He had no choice.
Here’s some of what is going on. The prosecutors had evidence that a friend of Aaron Hernandez was in California with him. He would testify that Hernandez bragged about owning a .45-caliber handgun and having it with him six weeks before Odin Lloyd’s murder. Llyod was murdered with a .45 caliber bullet and the murder weapon was not found. Judge Garsh kept that out of evidence.
Hernandez says he has a .45 six weeks before a murder; he is present at the scene of the murder where the victim is shot with a .45; the .45 disappears. Would you want to know that as a juror? Without evidence of a prior showing Hernandez had a .45 the prosecutor cannot argue to the jury that the .45 slugs in Llyod could have come from the .45 Hernandez had possession of. He can’t make Hernandez the shooter.
The prosecutors also wanted to introduce evidence that Hernandez shot a friend in Florida. That too Judge Garsh is keeping out. She’s also keeping out all evidence of his involvement in the double homicide in Boston as well as the texts that the victim Odin Llyod sent to his sister within minutes of his murder which prosecutors could argue showed his fear of Hernandez. To top it off, she also struck from evidence most of the testimony of the witness from the Glock company who identified the dark object in Hernandez’s hand in a blurry video as a Glock .45 handgun.
I wrote the other day that defense counsel is looking to Judge Garsh to direct a verdict of not guilty. At this point the prosecutors have not put in any evidence to show any connection between Hernandez and the weapon that was used in the murder nor is there any evidence to show his propensity for violence. They only have him at the scene of the murder with two other guys about whom the jury knows next to nothing.
Dave wrote a comment asking about “joint venture.” NC wrote:”the judge advised the jury that AH didn’t have to be the shooter to convict him. She wouldn’t have done so unless she was going to permit a joint enterprise theory. If one aids or assists in the commission of the crime one is liable as a principal. . . ..”
NC is right that the judge said Hernandez didn’t have to have the gun. In Commonwealth v. Zanetti, 454 M449 (2009) the SJC talked about joint venture. NC is right to point out that if the government cannot prove Hernandez fired the gun, which it hoped to do by showing he had a .45 and a propensity to shoot people, then there must be evidence that Hernandez aided or assisted in the crime. Where is that evidence?
Here’s how the SJC spelled it out: “To succeed on a theory of deliberately premeditated murder as a joint venturer . . . the Commonwealth was required to prove that the defendant was “(1) present at the scene of the crime, (2) with knowledge that another intends to commit the crime or with intent to commit a crime, and (3) by agreement, [was] willing and available to help the other if necessary.” . . . The Commonwealth also needed to prove the defendant shared the mental state or intent for deliberately premeditated murder, which is malice, and, in particular, an intent to kill. . . . In addition, the Commonwealth needed to prove deliberate premeditation, “that the defendant’s decision to kill was the product of ‘cool reflection.’ . . . also . . . “[u]nder a theory of joint venture premeditated murder during which another person carried and used the gun, the Commonwealth must ‘establish beyond a reasonable doubt that the defendant knew [the other person] had a gun with him.’ ”
The SJC said “while we renounce the false distinction between a principal and an accomplice, and have recognized that the accomplice commits the crime no less than the principal,. . . “
In the Zanetti case the defendant was convicted of first degree murder based on the theory of joint enterprise. The evidence was the defendant was one of four men in a car that pulled up aside another car. A shot was fired from defendant’s car that killed the other driver. The evidence showed that either the defendant or a Lopez fired the gun. The SJC said: “there is no evidence that would reasonably permit the jury also to find beyond a reasonable doubt, by direct evidence or inference, that before Lopez fired the gun, the defendant (1) knew that Lopez had the weapon and was intending to kill the victim with it; (2) shared Lopez’s intent; and (3) by agreement was ready and willing to help.”
That is the prosecutors’ big problem with the case. If they can’t convict Hernandez as principal then they are out of luck. They have no evidence of what went on between the three men leading up to or at the scene of the murder. They have no evidence Hernandez had knowledge the shooter had a .45 and was intending to kill Llyod with it; shared the shooter’s intent; and by agreement was ready and willing to help. The prosecutors have to show Hernandez knew all this before the murder. His actions afterwards do not count. Perhaps the only question remaining is whether Hernandez will play in the NFL next year.