Hernandez: An Uneasy Sleep

Aaron’s Hernandez’s jury’s question had to have made the prosecutors toss and turn in their sleep, if they slept at all. As best I can tell it asked the judge according to this report: “questions to clarify two weapon and ammunition possession charges Hernandez faces in addition to the murder charge. Hernandez is charged with illegally possessing a .45-caliber handgun and .22-caliber ammunition.”

Another report has it that the jury asked “if the principle of “constructive possession,” one of the elements of both charges, means that Hernandez intended to use the firearm.” Judge tells the jurors that means he must have some type of control over it.

The nightmare the prosecutors had last night goes back to the decision to charge Hernandez with those minor charges in the first place. I never could figure out why prosecutors add in the minor charges in a murder or other serious felony case. The idea is to convict the guy or gal of the offense you believe was committed; throwing in the junk can give the jury a way out or confuse it so that it no longer focuses on what is important. A prosecutor should asked “will I be happy if the jury gives the defendant a pass on the main charge and convicts on the minor charges?”  

In this case it will be little comfort to anyone except Hernandez and the defense team if he is found guilty of possession of ammunition and not guilty of murder. The initial blunder in bringing this charge is the reason the jury asked the question. It should have been avoided.

But it is worse than that, much worse. It seems to suggest, and when I say this you must remember the way juries work is often inscrutable, that one or some jurors are having doubts that Hernandez did the shooting. If that’s the case, much of the prosecutors compelling evidence is being ignored.

If any of the jurors believe one of the other guys with Hernandez did the murder of Odin Llyod  – perhaps the one who was on the imagined PCP trip – then it is going to be difficult pinning this on the defendant who the defense conceded was at the scene of the murder but noted he was a confused young man of 23 who saw his friend murdered and didn’t know what to do about it.

(There’s no doubt Hernandez was confused. The trial testimony that went unrebutted was that he was a chain smoker of marijuana. As someone suggested, you have to wonder about the Patriots and the NFL drug testing system.)

Jamie Sultan argued the case for Hernandez. I remember him back in the ’90s as a young attorney who was very effective in presenting cases in a calm logical manner. It is quite an accomplishment if he has, as the question seems to indicate, in this pretty open and shut case taken the gun out of Hernandez’s hands in his final argument. That’s one thing the prosecution did not want.

If the jurors believe Hernandez did not have the .45 caliber Glock weapon that was used to murder Llyod – after all it was not found at his house during the search and the other two men with him had left and probably taken the gun with them –  it would not have been in the black bag that Hernandez’s girlfriend tossed into the dumpster since the defense cleverly came up with her smelling marijuana in the box in the black bag as the reason she threw it away something she had not mentioned before – then to convict Hernandez the jurors have to find that Hernandez was involved in a joint enterprise with the one who did the murder.

The problem with that is that a joint enterprise requires the participants to agree upon what is to happen. There is no evidence of an agreement especially if the jurors believe against all the evidence otherwise that some type of PCP mental explosion caused the murder. That’s difficult to do because it was Hernandez who was driving the car and drove his “friend” Odin to the place of his murder.

The deliberations of jurors can run amok. The questions can sometimes indicate little. Uncertainty is the name of the game. But had I been prosecuting that case I’d certainly not have slept a wink last night.