Is It Game Over for Aaron Hernandez?

Over the past ten days, I have been asked just about every question in my alternate role as TV Legal Analyst about former New England Patriots' Tight End Aaron Hernandez's murder case, except one. How is he going to be able to defend against the mountain of evidence the police appear to be accumulating against him? To be sure, he seems to be facing an uphill battle. However, as an experienced criminal trial attorney who has defended (and before that, prosecuted) numerous murder cases, I can already identify a number of ways his murder and firearms charges can, and should be, defended.

First, Hernandez's lawyers need to do what they can to try to suppress the much-discussed video surveillance tapes that purportedly show him in possession of what appears to be a .45 Glock semi-automatic inside his North Attleboro residence both immediately before, and directly after, the murder of Odin Lloyd supposedly happened. Given that the autopsy report, and ballistics analysis, supposedly establish that Lloyd was killed by a .45 Glock, (signature "rifling" on spent rounds recovered suggest it was a Glock), which investigators have not been able to locate, the surveillance tapes seem to provide powerful evidence linking Hernandez to the alleged murder weapon. For this reason, Hernandez's attorneys need to preclude jurors from seeing those tapes. This is no easy task. The fact that the tapes were made by Hernandez himself means there was no state action involved in their creation and thus no potential 4th amendment challenges for illegal and secret taping/recording without a warrant. Nonetheless, the fact that the tapes were seized by the State Police does provide grounds for a challenge, even though court authorized search warrants were involved in the taking. This is because any search warrant that was issued has to be supported by sufficient probable cause establishing either that the surveillance tapes are themselves evidence of a crime or are likely to reveal criminal activity. The fact that they do/did have evidence (of Hernandez possessing an apparent firearm without an FID card) is irrelevant. The sole issue that should be argued by Hernandez's lawyers is whether or not the State Police established probable cause beforehand about what those tapes were more likely than not to reveal. If I'm Hernandez's lawyer, my argument (after reviewing the supporting affidavits) is not only is there no way the police suspected anything was on those tapes, but also that because it was Hernandez himself who told the cops about the tapes, they had no basis at all to conclude beforehand they were going to reveal anything. Bottom line, suppress those surveillance tapes and Hernandez starts to have a fighting chance.

The second way Hernandez's lawyers should defend against his murder charge is to attack the credibility of any cooperator(s). I've been saying since he was arrested last week, that it's clear from the prosecution's presentation of facts that someone in the car that night (evidence has revealed the occupants were Hernandez, Lloyd, Carlos Ortiz, and Ernest Wallace) is already "talking" and I won't be surprised if he is soon joined by a second cooperator. Without any objective or independent evidence of who actually did what inside that Industrial Park/gravel pit, the prosecution is going to have to rely on one of Hernandez's confederates to provide the missing details in exchange for leniency. (Note, for him to be found guilty of first degree murder the prosecution does not have to prove that Hernandez was the actual trigger-man if the theory of liability is "joint venture".) This provides defense attorneys with a powerful weapon by which they can argue that any cooperator has been incentivized to lie or to blame their client for acts they may have committed themselves. This is the principal defense in the Whitey Bulger murder/racketeering cases (United States v. James J. Bulger, No. 99-cr-10371-DJC) and a seasoned criminal defense attorney can often have a field-day cross-examining witnesses who have received favorable deals, such as reducing or even dropping murder charges, in exchange for their testimony. If in so doing they can shed doubt on a cooperator's credibility, they can begin to cast doubt on the credibility and integrity of the prosecution's overall case, as well.

The third way Hernandez's attorneys should defend against the charges is the way any experienced criminal defense attorney defends against evidence that, on its face, appears largely circumstantial. Yes, the jury will be instructed that circumstantial evidence is just as valid as direct evidence, and that a person can be found guilty just as readily in circumstantial cases. Still, the key to defending a circumstantial case is to demonstrate that for each and every inference from a particular piece of evidence, or line of testimony, the prosecution argues is consistent with guilt there is an equally plausible inference that is consistent with innocence. In other words, when dealing with circumstantial cases, an experienced defense attorney attempts to "play" the prosecution "to a draw" in terms of the evidence that is presented. This is especially helpful in Massachusetts where there is a specific jury instruction that says if there are two equally plausible inferences to be drawn from the evidence in terms of guilt or innocence, the benefit must be given to the defendant. Stated more familiarly, when it comes to circumstantial evidence the "tie always goes to the defendant." If Hernandez's defense team can credibly argue every time the prosecution claims the evidence means one thing, it plausibly can mean another — or if they can knock out any one of the supporting links that make up the inevitable chains in circumstantial cases by showing it does not mean what the prosecution says it does, they will also be giving him a fighting chance to beat these charges.

Last is the most powerful weapon of all in the defense team arsenal; the Presumption of Innocence. That Mr. Hernandez is now, and will remain, presumed innocent as a matter of law unless and until the prosecution has proved his guilt beyond a reasonable doubt is a decided advantage to the defense from the moment he was arrested all the way until the jury begins its deliberations. The burden of proof is entirely on the prosecution, from start to finish. Hernandez need not prove anything. A seasoned criminal defense attorney uses this fundamental principal much more as a sword than as a shield, and will do everything he or she can to not only hold the prosecution to this burden, but to repeatedly remind the jury as often as he or she can to hold them to it as well.

Does Mr. Hernandez face an uphill battle based on what we have learned? Absolutely. Is his conviction certain and any defenses unavailing? Not by a long shot. The Aaron Hernandez case is only in the first quarter with lots of time left on the clock. The outcome is still uncertain, but the game is far from over for this former Patriots' tight end.