Boston Herald: McGovern: Aaron Hernandez trial strategies to be heard

Thursday, January 29, 2015
By Bob McGovern

The first glimmers of light will be shed today on the many unknowns in the murder trial of Aaron Hernandez.

The defense and prosecution will deliver their opening statements. Attorneys for the former New England Patriot will take their first swipes at the mass of circumstantial evidence stacked up against their client. Prosecutors will try to point jurors to an inescapable conclusion: that Hernandez was involved when Odin L. Lloyd was murdered on June 17, 2013.

But as the legal orators try to coax jurors in their direction, many questions may be left unanswered. Will Shayanna Jenkins, Hernandez's fiancee, flip on her beau to stay out of jail? Will Hernandez's attorneys accuse someone else of being the shooter? Can prosecutors resurrect the missing murder weapon out of a series of inferences?

Sometimes, in murder cases of this magnitude, it's worth holding back some of the details during openings - even if the case could hinge on them.

"You can't give too many details, because there's a fear that someone out there will check them out," said Carl E. Douglas, a defense attorney who helped represent O.J. Simpson in his massive murder trial. "During the O.J. trial, we made a mistake and gave witnesses' names. That same day, there was someone at their door asking questions."

It's unclear whether prosecutors can even name Jenkins as a possible witness, as Superior Court Judge E. Susan Garsh has not yet granted her immunity. Facing charges of her own, Jenkins could be a game-changer if she decides to talk.

Pretrial motions have hinted that the defense may point the finger at Ernest Wallace Jr. or Carlos Ortiz, both indicted in Lloyd's murder. Prosecutors say Hernandez's lawyers are trying to use an expert witness to offer "baseless speculation" on how Ortiz and Wallace were on drugs when the murder occurred.

There's no way to know if Garsh will allow his testimony, but if it's granted, the defense should leave it out of their opening.

"Cases like this are a marathon, not a sprint, and you don't want to promise something to the jury and not provide it later," Douglas said. "The other side will always jump on that and remind them that you broke your promise."

Perhaps the biggest unknown is how prosecutors are going to create a missing murder weapon out of testimony, security video and other circumstantial evidence.

"The defense is going to tell the jury that they won't see all the things that they ought to see in a murder case," said Brad Bailey, a criminal defense attorney not involved in the case. "From the weapon, to the actual trigger puller, to eyewitness testimony - they're going tell the jury that the absence of these things leads to reasonable doubt."