Timeout for Official Review: the Latest Questions in the Aaron Hernandez Case

Last Friday afternoon's indictment of Aaron Hernandez' co-defendants, Earnest Wallace and Carlos Ortiz, on charges of first degree murder in the 2013 slaying of Odin Lloyd nearly eight months after being charged with lesser related offenses raises more questions than it answers. I've already been asked a number of these questions during my regular on-camera appearances as a FOX 25 legal analyst, including: Why? What does it signify? And which side gains from this? Because folks keep asking, let me try to answer further, while drawing on my experiences as a former state and federal prosecutor and longtime Boston Criminal Defense Attorney who frequently defends murder cases in Massachusetts and other states.

Since none of us are privy to what actually went on inside the Bristol County Grand Jury room leading up to Friday's indictments, and because the DA's Office is prohibited from sharing insights by a gag order issued by Superior Court Associate Justice Susan Garsh, my answer to the question "Why?" is little more than speculation. However, as I see it, I'm guessing that the prosecution just can't seem to get past the issue of the towel investigator's recovered from the crime scene that purportedly has Ortiz' DNA on it. This discovery not only exposes his earlier reported claim (of being asleep in the car Hernandez, Wallace, Ortiz and Lloyd had returned to North Attleborough in) at the time of the shooting to both attack and repudiation, but also feeds into the defense team's near certain trial strategy of saying it is Ortiz who was the shooter, and that all of his anticipated testimony against Hernandez and Wallace is nothing more than a recent contrivance designed to shift the blame and cover up his own wrongdoing. The joint venture theory of criminal liability that the first degree murder indictments against Hernandez, Wallace, and Ortiz now signals the prosecution will be pursuing at trial is not only a way to eliminate altogether the "blame Ortiz" defense Hernandez' attorneys were certainly planning, it is also a way to eliminate from the case the substantial reasonable doubt the unexplained presence of a towel with Ortiz' DNA on it at the crime scene would have created, were they to present, and rely on, Ortiz' testimony that he remained in the car at the time of the shooting.

What does the inclusion of Wallace and Ortiz in the first degree murder case against Hernandez signify? First, it signifies that the prosecution ran into too many credibility roadblocks with Ortiz' proffered testimony and totally ran out of patience with the possibility of using him as a witness. Simply put, Friday's indictment closes the door on his cooperation—and the option of pursuing lesser included offenses such as firearms violations and accessory after the fact to murder against him—probably once and for all. Second, it probably also means the prosecution ran out the clock on any extensions of time they might have been affording Earnest Wallace to "find Jesus" and join the prosecution team, also as a cooperating witness. Third, it may well mean the prosecution is no longer comfortable placing the murder weapon directly in Hernandez' hands, or specifically alleging he was the triggerman, as indications during earlier exchanges of discovery and motions practice seemed to be pointing to. Fourth, it probably means that in the final analysis prosecutor's have decided that the safest way to prove their case is via a joint venture theory of liability where, as long as they can prove beyond a reasonable doubt that all three defendants were at the murder scene and shared the same intent (to kill Lloyd), and that each, either collectively or individually, stood by, with such shared intent, ready, willing and able to assist the shooter, they don't have to prove which one of the three men actually pulled the trigger; something they would not be able to do (attempt to prove guilt via joint venture liability) if Hernandez stood charged with the Lloyd murder, alone. Fifth, it likely means the end of any possibility that either Wallace or Ortiz will wind up testifying for the prosecution or that there will be any eyewitness testimony about the shooting itself, or about what happened immediately before and after Lloyd's murder, especially with the prosecution having labeled Ortiz "completely unreliable" in a recent filing since the defense can, and would have also used that comment alone to thoroughly impeach and destroy his credibility. Still, as an experienced criminal defense attorney, I have to say stranger things have happened, particularly when the difference between parole eligibility at 15 years on a murder two plea and life in prison for the rest of one's natural life without any hope of parole on a murder one conviction can be enough to prompt one, or both, to reconsider. But my guess for now is that's one Genie that won't be coming back out of the bottle in this case!

Who gains? At first blush, indicting all three men on a charge of first degree murder helps the prosecution since they no longer have to specify, or prove, who pulled the trigger to the gun that killed Odin Lloyd as long as they prove beyond a reasonable doubt that that each of the three men shared the same intent to kill him, and that each stood ready, willing, and able to help out with the killing if needed. Also, as already noted, indicting all three on a charge of first degree murder eliminates the "blame Ortiz" defense, as well as any doubts about the unexplained towel with Ortiz' DNA on it. Indeed, the prosecution can now instead use the towel to try to prove their joint liability theory and the fact the Ortiz was in fact, at the very least standing by ready to help out. In other words, yes, let's score some major points for the prosecution here.

But let's not prematurely signal a touchdown yet, either. By indicting both Wallace and Ortiz , absent any step-back in positioning, the prosecution has removed altogether any possibility of introducing eyewitness testimony (barring a severance) from anyone who was in the car moments before Lloyd stepped out of it, or from anyone who was apparently standing with or near him in that industrial lot at the time of his murder. Now, it could well be the prosecution is feeling confident about their chances of proving the defendants' guilt beyond a reasonable doubt on a chain of circumstantial evidence anyways, and their joint venture theory might just be the thing to help them do this. But as any experienced criminal defense attorney, whether in Boston or Fall River, or anywhere else, knows, links in those chains can often be broken and "reasonable" and "inference" aren't always synonymous. Regardless of how much evidence the prosecution may think they have, it won't amount to much of anything unless they can not only prove all three men were inside that lot at the time of the Lloyd murder, but also that all three men were inside the lot with shared intent to commit the murder, and that anyone who wasn't the shooter was standing by prepared to help with the killing if needed. In other words, if these indictments do in fact signal a lack of confidence being able to prove who the actual shooter may have been, the prosecution better be sure that the evidence won't alternatively show that one of the three might have acted alone. While criminal intent may be properly inferred from all of the credible evidence, trying to prove what's inside the perpetrators' minds, or behind their actions, without the benefit of a jury hearing about spoken words, instructions or plans, or real-time descriptions of the perpetrators' actions, from an eye-witness often becomes a long and winding road that ultimately leads nowhere.