The Aaron Hernandez Horror: He May Walk.

(1) out of stepIf 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. 



  1. Pardon my french, but the handling of this trial by the judge has been absolute bullshit, any judge under 50 or has regularly used a cell phone would know what the hell Odin Lloyd was trying to convey to his sister by saying “you saw who I’m with?” “NFL” “Just so you know” AKA AARON HERNANDEZ IS ABOUT TO KILL ME REMEMBER THAT SHIT! And his defense saying he’d never shoot a friend in their opening statement, well guess the fuck what GARSH, he fucking shot his Friend in the face 3 months before Lloyd!!! Someone who will never possibly face this bitch as a defendant should give a piece of their mind to her, she seems like she may have something against Men as well. I thought Whitey’s trial was controlled this shit is fucking ridiculous, this kid Lloyd deserves justice, so do the two other men he killed in the north end, I don’t see how anyone could have an iota of support for Garsh’s Biased Tactics. Fuck Her. Really gets my blood boiling.

  2. Matt,
    What is going on here? Is judge recalcitrant or being overly protective of the defendants rights or what? She seems to have crippled the prosecution, but for what reason? As dangerous and absurd as it might seem if the prosecution had not proceeded with their case at this time perhaps they could have built a stronger case. Perhaps letting him be tried in the Boston double homicide first if the evidence were stronger. If he was convicted of the previous murders wouldn’t that have been admissible at the Lloyd trial? Please help me understand. HB

  3. Matt,

    Do you know specifically which rules of evidence the judge cited as to why all of these pieces of evidence are excluded? I practice employment law, so I’m not up on my crim law and evidence law as I used to be.

    I was just perusing the rules and 406(b) seems to make the friend’s testimony about AH’s propensity to carry a .45 inadmissible. “Evidence of an individual’s personal habit is not admissible to prove action in conformity with the habit on a particular occasion.” Did the Prosecution make the argument it was admissible under 404(b)? 404(b) reads, “(b) Other Crimes, Wrongs, or Acts. Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, nature of relationship, or absence of mistake or accident.” I think you could make the argument it should be admitted for one of the above purposes.

    I get the exclusion of the text messages, its just the hearsay rules rigidly applied to modern day technological advances. There is no dispute the text messages say what they say, so there can be no argument that they are unreliable. I guess the counterargument is that the defense cannot cross examine the person about what they meant by the messages and what the context was surrounding those messages. It is difficult to infer sincerity/sarcasm, etc. through email and text.

    But I do not understand why the judge barred any evidence about AH shooting his friend Bradley. 404(a)(1) reads, “(1) Character of the Accused. In a criminal proceeding, the accused may offer evidence of a pertinent trait in reputation form only, and the prosecution may rebut the same.” Didn’t the defense make the argument Llyod was his friend, and he wouldn’t shoot/harm a friend? Doesn’t this open the door to introduce evidence regarding Bradley’s shooting? Perhaps their evidence was mroe nuanced than that. Otherwise, this ruling kind of baffles me. I can see how the other pieces of evidence can be excluded based on the MRE’s, but not this one. I guess the judge can still exclude based on the 403 prejudicial catchall rule.

    As an experienced prosecutor, what are your thoughts on how or if the judge applied these rules correctly?

  4. Matt:
    Here’s how this optimist sees things: Hernandez still faces a double-murder trial and various civil lawsuits. Also, the none-too-generous-to-begin-with Patriots are loathe to pay him even a penny, much less his $3.5 million signing bonus. Also, if a Texas jury could acquit Robert Durst of murder, maybe a Massachusetts jury will do the opposite and convict Aaron Hernandez of homicide. Prosecution is really struggling to establish a motive, but the DNA evidence is pretty compelling. We’ll see …

  5. Pesky inconvenience that requirement of sufficient evidence to convict. Imagine the howling that would have been heard if the prosecutors declined to prosecute for that very reason instead of proceeding with an unwinnable show trial. Instead, we have the expense of jail detention and prosecution borne by the Massachusetts taxpayers and the expense of the defense, lost livelihood and burden of a long time in jail incurred by the defendant. Mere acquittal does not restore these losses.

  6. Can’t get flipped on a not guilty.