2015: A Year Like No Other for Massachusetts Juries

2015: A Year Like No Other for Massachusetts Juries

There are hundreds of millions of reasons why 2015 should be a bright, happy, and interesting new year for so many people. Time will only tell whether it turns out to be so. However, when it comes to 2015, one thing is absolutely certain. For trial watchers, CSI junkies, and courtroom cowboys, this year is likely to be like no other in the annals of Massachusetts criminal jurisprudence. Indeed, any of the other 49 states will be hard-pressed to match what is slated to unfold in front of juries in state and federal courtrooms in the Commonwealth this year or, to be frank, in any other years — which, stated by someone who began his career as a prosecutor in NY where there seemed to be a new "Subway Slasher" standing headline case every other month, and who tried the high-profile "Clark Rockefeller" murder case in California (State v. Christian Karl Gerhartsreiter) during weeks when it was the third most notorious jury trial in LA courthouses, is a bold pronouncement. But I'll stand by it.

First up, on January 5, unless the 1st Circuit Court of Appeals grants a last-minute stay pending argument on the defense teams' renewed twin motions for change of venue/to continue trial, or grants one or the other on its merits, is the federal trial of accused Boston Marathon bomber Dzhokhar Tsarnaev (United States v. Tsarnaev, No. 13-cr-10200), a case in which the defendant faces a possible death penalty on 17 of the 30 counts in the indictment against him and where his lawyers are predicting that prosecutors are "likely to depict the crimes as having affected not only those killed and injured but nearly the entire greater Boston community." With United States District Court Judge George O'Toole calling for an initial jury pool of 1,200 prospective jurors, even the voir dire (jury selection) phase of this trial will be compelling in its own right and barring an 11th hour negotiation that results in a plea to life in prison without parole in exchange for sparing the defendant's life (an unlikely development at this point), or a decision by the defendant to plead guilty to the guilt phase of his trial, but contest the [death] penalty phase (still a plausible last-minute development), the two-part trial, even under an expedited full [four] day schedule, will provide daily "copy" here for easily up to six months. A bona fide domestic terror case which will draw world-wide attention and interest, there are likely going to be times when what is going on right outside the John J. Moakley Federal Courthouse in South Boston in terms of perimeter security, demonstrators, and just plain "weirdness," will create the aura of a three-ring circus. And if there is a death penalty trial immediately following pronouncement of verdicts after the guilt phase is concluded ( which a cursory view of the evidence suggests is likely; an outcome the contents of various discovery motions filed by Tsarnaev's own lawyers indicate they are, themselves, already anticipating), all I can say is "hold on to your hats." It won't just be that the parties will be litigating a literal life or death struggle in a state where the death penalty was abolished on October 18, 1984, and no execution has been carried out since 1947, but also that debate over aggravating (heinous, nature; 3 deaths—4 with Officer Collier, 269 victims; grave risk to others; etc.) factors versus mitigating factors like Tsarnaev's age; lack of criminal record; and potential brainwashing/fear of his older brother will be divisive and hotly debated. In other words, it is an understatement to say the Tsarnaev trial will be one of the most talked about and widely "viewed" (alas, TV cameras are not allowed in federal courtrooms) trials of this century.

And that's just the first week of January. A mere four days later, former New England Patriot wide-receiver Aaron Hernandez, and two others, are scheduled to go on trial in Bristol County (Fall River, MA) for murder in the death of semi-professional football player Odin Lloyd. In a region that loves "Our Patriots," Hernandez' is the first real Celebrity Murder Trial in Massachusetts in my lifetime. (We've had "notorious" murder trials to be sure, and some involving well-known criminals, but none involving a former celebrity.) and the first I can find involving one of our professional athletes while still under contract. Yes, Aaron Hernandez is not the first of his ilk to be charged with murder in this country. Former Baltimore Ravens linebacker Ray Lewis was initially charged with double homicide following a post-Super Bowl party in Atlanta, but those charges were later dropped to obstruction of justice and a trial was avoided. Former Carolina Panther Rae Carruth was likewise charged with murdering his pregnant girlfriend in Charlotte, NC, and his case did proceed to trial (and ended with a conviction). But let's be honest, I've seen Aaron Hernandez play and I once saw Rae Carruth play (on television) and to paraphrase the late Senator Lloyd Benson of Texas, "Rae Carruth is no Aaron Hernandez." I mean Hernandez was a budding Superstar who had just received a $40M contract weeks before his arrest. No, it's not quite OJ/Nicole/Ron Goldman Jr., but Aaron/Odin is just about as BIG as a trial will get around here in terms of public interest and attention –even bigger in my opinion than Whitey Bugler, which says a lot.

Adding to the buzz is the fact that the outcome in Hernandez is far-from pre-determined. A seemingly strong case for the prosecution that initially appeared to be centered on eye-witness testimony from a cooperating co-defendant (Carlos Ortiz) devolved into one wholly based on circumstantial evidence when either Ortiz recanted his testimony, or prosecutors labeled him "unreliable" (or a combination of both), and he too was ultimately charged with the Lloyd murder, on a joint venture theory, along with Hernandez and co-defendant Earnest Wallace. This, plus the fact that the prosecution has yet to find the alleged murder weapon (not required for a murder 1 conviction, but certainly helpful), apparently won't be able to suggest a motive (also not required, but also quite helpful) based on a recent ruling by Judge Susan Garsh, and suffered a series of setbacks in terms of evidence the Judge either suppressed (cell phones, tablets, and an illegal automatic rifle) or ruled inadmissible (text messages between Lloyd and his sister right before his murder in which Lloyd said he was "with NFL," their nickname for Hernandez, has provided the defense team with plenty of toeholds to exploit to their client's benefit and argue constitute "not just a single reasonable doubt, but a plethora of it."

Still the prosecutors remain confident, and a recent proffer of evidence regarding a prospective witness and Hernandez crony who will testify he checked a drawer at Hernandez' request and felt what appeared to be a large handgun wrapped in a black T shirt in Hernandez' dresser, which Hernandez later admitted was a .45, the same caliber as the alleged murder weapon, ought to result in a decision by Judge Garsh to admit/allow his related testimony. "Bombshell" testimony like that, the as-yet undisclosed testimony of former confidante, now cooperator Alexander Bradley (I'm guessing regarding, at least, his knowledge of what kind of gun(s) Hernandez owned), testimony about when and where Lloyd was picked up before his murder, shell casings matching the alleged murder weapon found in a car Hernandez rented, the notorious cherry bubble gum, surveillance tapes showing Hernandez' rental vehicle heading into the industrial park, and then leaving it at a time commensurate with the murder, and grainy video footage from Hernandez' own internal security tapes depicting him brandishing what appears to be a handgun shortly after the murder, could each help make a compelling circumstantial case that results in the erstwhile NFL star spending the rest of his natural life behind bars. A true battle royal over which inferences can be reasonably drawn from the evidence and which cannot, the Hernandez trial will be one that is sure to be fought by attorneys by the inch rather than the mile and is likely to go wire to wire, keeping us all in suspense and in our seats (in front of the television; allowed in state courts) from start to finish!

Of course, should Tsarnaev start as scheduled, and the Odin Lloyd murder trial last the six weeks to two months that is currently anticipated, Tsarnaev will still be ongoing even after the courtroom drama in Hernandez has ended, which for trial junkies will be like going from the frying pan into the fire, and then back to the frying pan. But that's not all. In September, after Tsarnaev has presumably concluded, the second death penalty trial for former drifter Gary Lee Sampson is also set to start in United Statesv. Gary Lee Sampson, No. 01-cr-10384 in a federal courtroom in Boston. Previously convicted to die by a federal jury in 2003 after not contesting, and pleading guilty to, underlying murder/kidnapping charges related to three unrelated victims, Sampson's death sentence was overturned last year by a federal judge when it was learned a supposed death-qualified juror had withheld relevant personal information from both sides during jury selection. Sampson cannot undo his guilty pleas, but he may be able to engineer a different outcome than the first with a new jury for his penalty phase, especially given his lawyers' plan to focus their attention on his visibly deteriorated physical and mental condition and likely arguments that the harsh reality of his life imprisonment is punishment enough; mitigating factors the government will anticipate in presenting upfront the particularly heinous nature of his crimes (tying one victim to a tree and slitting his throat), his criminal record, purported "one man crime wave," and the number of innocent victims (three). There will undoubtedly be debate, and extensive motions, about whether or not the verdict in Tsarnaev (especially if guilty/death) will taint Sampson's prospective jury pool, but really the overarching analysis will be the incredible improbability, and irony, of there being two death penalty trials in the same year in a single state where the death penalty has been abolished and wherein the death penalty cannot be carried out, even if imposed by federal juries.

And after that? Aaron Hernandez is facing a presumptive 2015 trial date in yet another Massachusetts murder case, this one a double homicide allegedly occurring outside a Boston nightclub where he is accused of gunning-down two victims, Safiro Furtado and Daniel Abreu. Whether or not his overworked defense team will be forced to conduct two first degree murder trials for the same client in the same year, or will be prepared to, is not certain. What is certain, should Hernandez be acquitted in Bristol County of murder in the Odin Lloyd case, is that he's not going anywhere and will remain locked up, without bail, pending trial in Suffolk County. And in case of an acquittal in Bristol County, Suffolk County Prosecutors will not only be that much more determined, and motivated, to take his case to trial but forced to be even more reliant on the bargained-for testimony of his former confederate, and unindicted co-conspirator, Alexander Bradley.

While all this is going on, the tragic rape and murder of Danvers High School teacher Colleen Ritzer will also possibly be playing out in an Essex County Courtroom when teenager Philip Chism's case goes to trial. One of the first trials after the MA SJC not only conformed state law to SCOTUS’ ruling in Miller v. Alabama that life sentences without parole for juveniles convicted of adult crimes may no longer be automatic, but expanded it here to preclude imposition of sentences of life without any possibility of parole for juveniles, the strength of the evidence released to the public thus far in Chism suggests the only viable defense will involve days of psychiatric testimony regarding the issue of how a seemingly innocuous 14-year-old boy could commit a crime so heinous and gruesome in nature.

At the same time, while not likely to be scheduled for trial in spite of Federal Court Administrators new "best practices" procedures designed to expedite docketing of federal jury trials in the District of Massachusetts, there is no doubt the racketeering (RICO) case involving executives of the New England Compounding Lab (NECC) in Framingham, in United States v. Barry J. Cadden,et al, No. 14-cr-10363, will be generating heat and activity as defense attorneys will try to separate the majority of clients from the two murder charges and/or assail the government's claim that a drug compounding lab had the structure, organization, and shared criminal intent to be run and function as a "criminal enterprise."

Whew! It's exhausting and exciting just writing about all this, but here's one prediction I don't need to consult the lateJeane Dixon about. In 2015, the Commonwealth of Massachusetts is going to be the Hub of the Criminal Justice Universe and millions upon millions will be watching. To paraphrase Roy Rogers, "Happy Trials, everyone."

About the author:

Brad Bailey was a felony prosecutor in Manhattan (NY) and an Assistant District Attorney in Middlesex County (MA), where he prosecuted murders, sex crimes and serious narcotics trafficking cases. He went on to prosecute federal drug crimes and the mafia/organized crime as an Assistant U.S. Attorney for the U.S. Attorney's Office in Boston. A five time Super Lawyer and Top 100 Trial Attorney, he is AV rated by Martindale, "10.0 Superb" rated by Avvo, and rated by Lead Counsel for verified experience, peer recommendations and a spotless record. Brad has been a member of the defense bar since 1999, and uses his vast experience on both sides of the law to defend clients accused of all manner of crimes in state and federal courts everywhere in Massachusetts, throughout New England, and elsewhere in the United States. Website: bradbaileylaw.com