Tale of the tape: Commonwealth v. Aaron Hernandez I

So Round 1 of Commonwealth v. Aaron Hernandez gets underway today. I'm using the boxing term deliberately. First, it is literally the first of two murder trials the former Patriots tight end is facing — sort of like starting out in the frying pan (Odin Lloyd murder) before jumping straight into the fire (Furtado and Abreu murders, i.e., Commonwealth v. Hernandez II). Second, his initial trial in Bristol County already has the feel of a real slugfest with both sides contesting every inch with bare knuckle brutality. Count me in now as a not so casual observer who, borrowing yet another boxing metaphor, not only believes this trial is going to go a "full fifteen rounds," but is also one that, contrary to appearance and opinion, is way too close to call. Let's go to the tale of the tape... (too much with the boxing metaphors?!)

In any event, the burden of proving the defendant's guilt beyond a reasonable doubt in any criminal case is always on the prosecution, from start to finish. What do I as a former state homicide prosecutor, and longtime Boston-based criminal defense attorney who now routinely defends clients charged with murder, make of the prosecution's case against Hernandez? Well, ever since presumed cooperator Carlos Ortiz recanted his proffered testimony and refused to testify as a government witness, the prosecution's case devolved into one based solely on circumstantial evidence. I've been asked repeatedly since then, "How does it look for them?" My answer is, it's hard to tell; and that's the thing about circumstantial evidence which, as Judge Susan Garsh will eventually instruct the jury, in so many words, is just as competent and valid as direct evidence. Viewed in individual parts and components, it may not seem like much, but taken together, with inference upon reasonable inference woven together to form unbroken links in a chain leading directly to the defendant, it can be both powerful and overwhelming. In other words, it's impossible to say how strong the government's evidence is, when based on circumstantial proof, until all the evidence is in, and the prosecution has rested.

We've had glimpses of some of these links already: global satellite positioning coordinates regarding the movement of Hernandez' rented vehicle the night of the Lloyd murder; cell tower signal tracking reflecting his progress toward the crime scene; surveillance footage of him driving the vehicle entering and leaving the industrial park where Lloyd was murdered; tire track imprints taken from the murder scene that match Hernandez' rental car; video surveillance of Hernandez entering his home shortly after the murder; interior footage (albeit grainy) of him waving what appears to be a pistol shortly after the murder; a shell casing from the rental vehicle (discarded by rental company personnel in their dumpster and later retrieved by police) that matched what the police believe to be the as yet unrecovered murder weapon (a .45 caliber Glock); the blue bubble gum, etc., etc. Count on the prosecution to lay card upon card on the proverbial table until the pile is heavy and high and unmistakable, and then try to wrap it all together and bind it tight with a thick band of an unbroken timeline, and then present it to the jury as unassailable proof.

The defense, who of course has no burden to prove anything or even present a single witness (but you know they will), will do all they can to snap that band and chip away at the links in the chain of evidence until one breaks and/or try to pull enough cards out from the government's neatly stacked deck until the entire pile appears to have tumbled or become disheveled — which, as convoluted and metaphorical as it sounds, is precisely how to combat a circumstantial case; and believe me, Hernandez' team of seasoned defense lawyers knows precisely how to do that.

And even though the prosecution doesn't need to produce the actual murder weapon to prove a murder, you can bet the defense team will harp on the fact that the murder weapon here not only hasn't yet been found/recovered, but cannot, and will, not be placed in their client's hands by anyone. They will also hammer away at the fact (now that Judge Garsh has made clear there will be no reference to the Abreu and Furtado murders) there is no motive for Hernandez to have killed his friend, and semi-pro football player, Odin Lloyd, even though the prosecution is not required to prove motive, either.

You can also be sure Hernandez' lawyers will continue to harp on the absence of any eyewitness testimony regarding the murder, as well as the complete lack of any evidence establishing who the actual shooter was. They will remind the jury this is a murder case and with what's at stake for their client, such deficiencies should never be enough to convict a man of so serious a crime as murder. They will argue that any one of these "gaping" holes in the prosecution's proof, alone, constitutes a reasonable doubt; taken together they can, and must, only result in one conclusion: "not guilty."

There have been hints the defense may raise affirmative defense(s) involving a variety of initials and acronyms from ECT to PCP, but in the end, I don't see them actually going in that direction, given that an affirmative defense (insanity, duress, self-defense, etc.) essentially involves an admission of some sort, although they may do whatever possible to introduce evidence of diminished capacity to try to reduce their client's liability from murder 1 to murder 2. But a true affirmative defense? Not on this evidence; not with the number of evidentiary setbacks Judge Garsh has dealt the prosecution in her pretrial rulings, including the suppression of certain cell phones and tablets, an automatic rifle not related to the murder, live ammunition, and text messages between Lloyd and his sister right before his murder (all of which I agree with, by the way). No, in my opinion, the best course of action by these experienced defense attorneys is to hammer and chip away until one or two or even three of the links in the government's chain is broken, and then hope like the dickens Hernandez' former celebrity status will play just like O.J. and give him benefits of the doubt not necessarily available to an average defendant charged with first degree murder.

And the government? I have to believe those of us on the outside have not yet seen the full hand of cards they are holding — even though the defense has, as a matter of right. One recent example was the prosecution's disclosure of an apparent witness who not only claims (and will testify) Hernandez not only told him to check to see if a firearm/pistol was still in one of his dressers, but also admitted owning a .45, the exact caliber ballisticians will testify was the (missing) murder weapon. That's not just powerful, but a potential game-changer. Then there's turn-coat cooperator, and erstwhile best friend, Alexander Bradley, who's now not only motivated by the bullet allegedly fired by Hernandez that seemingly disfigured his face, but also by a likely deal from Suffolk County prosecutors regarding the Abreu and Furtado murders. What he will say is anyone's guess (I'm guessing it will have to do with his direct knowledge of the type(s) of handgun(s) Hernandez may have owned), but one thing is sure. He's not listed as a prosecution witness to help out Hernandez. Shayanna Jenkins? Word is she's been offered an immunity deal to testify as to what she knows about the missing/disposed of murder weapon — and if she does have something to say about that: Game Over. But to me, that's one scenario that's unlikely to happen because, facing related charges herself, a standard immunity deal affords her little protection regarding possible blowback on her existing perjury case, and her lawyer knows this. The only thing that can get her on the stand is an all out free pass involving a dismissal of the indictment against her, plus a promise not to prosecute, which, in the end, removes any leverage or upper hand the prosecution may have to control/coerce her cooperation. I'll never say never, and stranger developments have happened (especially when one factors in allegations of past physical abuse by Hernandez against his heretofore loyal fiancée), but put me down now as saying, "I won't believe it until I see it."

Add to all this the fact that the prosecution appears to be proceeding on a joint enterprise theory of liability amongst co-defendants Hernandez, Wallace and Ortiz. This means that the prosecution won't be required to prove who the actual shooter was as long as they can prove that the three men were all present when Lloyd was murdered, with the shared intent to kill him, and each was standing by ready, willing and able to assist in doing so, if their help was needed, when one of them pulled the trigger. With a tool like that, certain holes in the Commonwealth's case no longer seem so glaring.

This, and what we already know the prosecution does have as evidence, as well as what they appear ready to link together, makes it both premature and foolhardy to underestimate the strength of their case-in-chief. In short, unlike many cases, once this trial gets started things will be far from over. So take your seats, fasten your seatbelts, and hold onto your hats. This trial is going to be a quite a match from start to finish; punch and counter punch, round by round. There may not be a knockout by one side or the other, but there should be a decision. Bet on it!