Two days ago I posted on this subject. I went in the background to a brother lawyer I’ll call Sam whose opinion I highly respect who has vast experience trying criminal cases representing defendants in the superior and district courts of Massachusetts. He made this reply to the matters I set out in my post in which I said the Taveres case decision may give Hernandez a new trial:
“Don’t know if it has any impact on Hernandez. The trial judge wrongly instructed the jury regarding a co defendant. There was no co defendant in the Hernandez trial. The possibility that a co defendant could be found guilty of a lesser charge wouldn’t apply because AH was tried alone. No decision today has any impact on another case because the judges just make it up as they go. Precedent doesn’t exist. It’s possible AH could get a 2nd degree on appeal but that would be the best he could do. Remember Anderson Cooper of CNN interviewed the jury on his show and had much praise for them. What judge in this state would contest CNN’s view of things? None.”
I totally agree with him when he says: “No decision today has any impact on another case because the judges just make it up as they go. Precedent doesn’t exist.” I would just add the caveat that has always been the case: as the person who taught me more about being a lawyer than anyone else, Frank DiMento, told me: “the law is what the judges say it is.” I do agree with Sam that it has become so much worse today. If Rose Bird were still alive and sitting she would be part of the mainstream.
Sam is also right that it would be hard for a Massachusetts judge to act in a way that would run contrariwise to a CNN position. But I do differ from him on the idea that because Hernandez was tried alone and Taveres had a co-defendant that makes a difference.
Let me explain. Both cases were decided upon the theory of joint enterprise that is the actions of all parties were agreed upon by all even though some may have had a different role. Typical example is the bank robbery where one guy goes in and holds up the tellers and the other guy or gal waits in the car.
Hernandez had no co-defendant at trial but the evidence was that he and two others were involved in a joint enterprise. This, in my mind, makes it the same as if he had the two others sitting in the courtroom aside him as co-defendants.
The Hernandez jury did not have to find that Hernandez did the shooting of Odin Llyod; he would have been just as culpable if one of the others had done it because it was a joint enterprise.
Remember Taveres pointed the gun at the victim, according to one witness he tried to chamber a bullet so the gun would fire, walked out of the video coverage, and his buddy came back and shot the victim. The jury found both guilty of first degree murder. The Supreme Judicial Court (SJC) said that may have been wrong because the jury may have believed he only pointed the gun at the victim to scare him and did not intend to shoot him, that the jury may have disbelieved the witness that he tried to put the bullet in the chamber to ready the gun to fire, and that his co-defendant grabbed the gun out of his hand and did the shooting against the will of Taveres. I know it is far-fetched but the SJC said as long as that theory could be conjured up, “evidence has to be considered in the light most favorable to the defendant” then the jury has a right to come to that conclusion. (The more likely reasoning of the jury would be that Taveres couldn’t get the bullet in, went back (off camera) to his codefendant who knew how to do it, and then the latter just went ahead and did the shooting.)
The SJC said because of that the trial judge (Betty Donovan) should have given the jury instructions that it could find Taveres guilty of involuntary manslaughter. She didn’t. So Taveres gets a new trial.
Now consider Hernandez. He is like Taveres (off video) because we don’t know what happened at the scene of the murder. Considering the matter in the light most favorable to him why is he not in the same position as Taveres. He and his joint venturers drove Odin Llyod to the isolated spot near his house and had him get out of the car. Hernandez pointed the gun at Llyod trying to scare him. One of the other joint venturers grabbed the gun from his hand and shot Llyod against the wishes of Hernandez.
I do not see that the cases are different. Any evidence that contradicts my theory does not have to be believed by the jury because a jury can believe all, some or none of a witnesses testimony. Judge Garsh should have instructed the jury that it had the right to consider involuntary manslaughter, she did not do that, so Aaron gets a new trial.
I suggest we should not have to wait too long to know if this is true. If it is, the lawyers who tried his case will be back in court with a motion for a new trial quite soon if they are still on the case.
Some suggest Taveres is an outlier that will never be followed again. That could be true. Rumor has it the judge who wrote the decision Margot Botsford might have wanted to take a shot at the trial judge Betty Donovan (because of a long-standing dispute between them when they worked in the attorney general’s office in 1987 – 88). Even more so because many joint venture murders that have been tried requests for new trials based upon the failure to give a manslaughter instruction will come pouring in; and going forward, it will be common for judges to give one.
This is a state case and the federal courts need not follow it but sometimes the federal courts do look to the state law in deciding cases. One wonders whether this might also impact the Dzhokhar Tsarnaev case. Did Judge O’Toole instruct that jury it could find Dzhokhar guilty of involuntary manslaughter?