With the number of guest legal analyst appearances I am doing on television decreasing because of a change in focus at my old network, I find myself listening to others still in that role, especially on the radio (where there remains a niche for it) when I'm driving to and from appearances at courthouses around the state and throughout the New England region. Take it from me, live commentary is harder than it looks, particularly when questions asked aren't pre-scripted or pre-reviewed. For the most part, the commentators I've listened to do a nice job with their analyses, although I still blanche when the proverbial mic is handed to a so-called "expert" guest commentator whom I have not once, in all my years practicing as either a state or federal prosecutor or criminal defense attorney, seen in a criminal session anywhere in Massachusetts—which happens more than you think. Still for the most part, the analyst is being asked to offer an opinion, and because even expert opinion can and does differ, whatever is said usually makes for good radio. Where I take issue is when the commentator strays from legal opinion to legal instruction. While even the best of us can and do sometimes "cramp," if one is going to foray into legal instruction, it's important to get it right. That's why after hearing a regular commentator—and respected law school professor— get it wrong two guest radio appearances in a row, I've decided to speak up.
Discussing the Aaron Hernandez trial on a popular sports radio show, this particular court-watching "expert" offered an opinion, in essence, that in as much as the week prior "was a good week for the defense, this past week has been a very good one for the prosecution." I had no disagreement there, but even if I had, it was just his opinion. However, the problem began for me when responding to a perhaps unexpected follow-up question from a co-host along the lines of, "isn't it still going to be hard for the prosecution to prove this, if they don't know who shot Odin Lloyd" (or something like that). The commentator commenced to instruct and expound on both "joint venture" and "accessorial" liability; somewhat carelessly blending both distinct theories together as though they are one in the same in order to try to explain why the fact that Hernandez may not have been the shooter isn't necessarily an impediment to the jury finding him guilty of murder (my summary of his words). The example he gave to illustrate joint venture was correct. Joint venture liability does, indeed, deem the person who substantially helps another commit a crime as being just as guilty as the perpetrator. By statute in Massachusetts, a person may be punished in the same manner as the perpetrator "if one aids in the commission of a felony." MGL Ch. 274, § 2. The best examples of this are: on a joint venture theory of liability someone who holds the victim down while another rapes her may also be found guilty of rape (In Massachusetts, this example actually constitutes Aggravated Rape.); in a murder case, somebody who pins back the victim's arms, while another stabs him to death may likewise be found guilty of murder, even though in the first instance he didn't commit the actual rape or in the second the actual stabbing. (In states like New York, where I once was a prosecutor, joint venture is alleged as "aided.")
Why the "expert" commentator in question expanded his analysis to accessorial liability was a bit confusing and bordered again on mixed metaphor since the specific example he gave for "accessory before the fact" of driving someone to a murder scene, really if applied to the Hernandez facts, is closer to being joint venture. He was correct in saying that in Massachusetts "accessory before the fact to murder" is, in fact, punished the same as if the perpetrator were found guilty of murder. However, the better example of that particular crime is soliciting/commissioning another to kill someone (murder for hire—which in federal court is its own crime) or securing the firearm for another to use in the murder. In Hernandez, though, no one is formally charged with being an accessory before the fact. (However, both co-defendants Wallace and Ortiz were originally charged with being accessories after the fact, which is different from before the fact and not sentenced as strictly.) So, it wasn't clear to me why accessory before the fact was being mentioned in the context of the Hernandez facts, nor frankly, did I understand the reason for his lengthy exegesis about the common law definition of joint venture murder.
This is because joint venture is a fine and workable theory in cases where the prosecution is alleging, and ascribing, specific conduct to specific defendants and is confident they can prove it. The problem from the get-go in Hernandez, is once suspected cooperator Carlos Oritz recanted and/or or the prosecution dismissed him "as thoroughly non-credible" (and indicted him for murder), the prosecution was left with no witnesses who can say who, exactly, did precisely what inside that industrial park in North Attleboro in the early morning hours of June 16, 2013. This inconvenient truth takes "joint venture liability" off the table as a viable theory of prosecution for this case. To be frank, I was surprised a respected criminal law professor (or any so-called expert) didn't realize this.
Joint Venture Murder is not what the prosecution in Hernandez is based on. Instead, they are proceeding on a slightly different theory; something called "Joint Enterprise Murder." While the distinction may not seem like much, it is important for anyone interested in the Hernandez trial to know, and critical for all 12 jurors to understand, Joint Enterprise Murder is perceptibly different. Unlike the joint venture example in which the law professor talked about "helping another commit the murder," Joint Enterprise Murder says being present when a murder is committed, while standing by with the same shared intent as the murderer (to bring about the victim's death), ready, willing and able to help out if needed, is sufficient to sustain a murder conviction. In other words, while merely being present when a murder is committed is never enough to sustain a charge of first or second degree murder, being present with shared intent to kill the victim and standing by ready, able and willing to help bring about his death is sufficient, even if one doesn't physically commit the crime in question. (One may be found guilty [as an Aider] if "by agreement, he is in a position to render aid to the principal offender even if he does not participate in the actual perpetration of the crime." Commonwealth v. Soares, 377 Mass. 461, 471-72 (1979) [Italics added].)
Under Joint Enterprise, as long as the essentials I have outlined above are proven by the prosecution beyond a reasonable doubt, and the cause of death is ruled a homicide, the Commonwealth does not need to prove who the actual shooter was, or who amongst any of the three charged with the murder did exactly what at the time the murder was committed. A controversial application to be sure, but absolutely proper here in Massachusetts and tailored made for the facts in Hernandez, which is why evidence of Aaron Hernandez' DNA on a discarded joint at the scene, shoe prints matching his footwear, and (yet to come) tire imprints matching his vehicle, are all so important to the prosecution's case; these put him at the murder scene. A shell casing matching casings from the type of murder weapon, plus the timing of text messages received, video surveillance of his rental car driving into, then driving out of, the industrial park shortly after shots are heard, each (according to prosecutors) circumstantially go further, arguably placing Hernandez at the scene precisely when the murder was committed. Testimony about him summonsing Ortiz and Wallace, video of him apparently dancing as Ortiz watches, surveillance tape of him purportedly waving a firearm in front of Ortiz and Wallace shortly after the murder was committed, are all designed to show his dominant/managerial role over the other two to the extent that if the jury thinks one of those three had to be the shooter (by virtue of four men driving into the lot and only three driving out), they are free to also conclude whoever it was who shot Lloyd would never have done it in Hernandez' presence without Hernandez' wish, concurrence, blessing, or instruction. In short, the prosecution will argue if the jury finds Hernandez was, in fact, present when the murder was committed, all the evidence combined shows he was there with the shared intent to bring about Odin's Lloyd's death, while standing by ready, willing, and able, to help out if needed.
Joint Enterprise Murder is a powerful tool for the prosecution (and again slightly different from Joint Venture), but it is not bullet-proof by any means and is easily assailable by the defense, mainly because "mere presence" is never enough, and while one's intent can be inferred from his actions, see Commonwealth v. Ferguson, 365 Mass. 1,3 (1974), proving shared intent when you have no evidence of what the accused physically did at the time the murder was committed to suggest what one was thinking can be both problematic and difficult. That's why you can expect the defense to try to begin to paint Carlos Oritz as a loose-cannon, or a drug- abuser, or completely unpredictable (and the likely shooter), and/or arguing there is no proof Hernandez knew anyone was actually going to shoot Lloyd, as the trial continues. The strength of Joint Enterprise can be its own Achilles heel, and bet that Hernandez' trial lawyers will not only be looking to demonstrate the soft spots in its application here, but also, after moving to dismiss on sufficiency grounds at the close of the prosecution's case, to argue to the jury it is a legal construct poorly designed to mask woeful deficiencies in the prosecution's case including no murder weapon, no motive, no eyewitnesses, and sloppy police investigation. Whether the jury will agree with them is a different question. But one thing will be certain. By the time they conclude deliberations, the jury will come to know, and understand, the law on Joint Enterprise Murder better than our errant criminal law professor apparently does.