Criminal trials often demonstrate a truth the novelist George Eliot knew: “People are almost always better than their neighbors think they are.” Consider the case of ex-New England Patriot Aaron Hernandez, who will stand trial accused of murdering Odin Lloyd on January 9 in Fall River, Massachusetts.
Bay State prosecutors think Hernandez is a bad man, a very bad man; his only hope is that jurors never learn what his neighbors know.
Hernandez is accused of murdering Lloyd in June of 2013 near Hernandez’s home in North Attleborough. That’s the case being tried next week. Lloyd was shot to death. The murder weapon has not been found, although prosecutors believe he was killed with a Glock pistol.
Prosecutors have also charged Hernandez in a double murder in Boston in July 2012. That trial will likely take place later this year.
In addition, Hernandez has been sued in a civil action in Florida for shooting yet another person. According to prosecutors, Hernandez has also trafficked in firearms, used illegal drugs, been photographed holding a Glock pistol, been arrested for drunken driving, had violent altercations and might even be affiliated with a gang.
It’s a depressing resume.
The jury sitting on the Lloyd murder case will hear little about these other bad acts, however. That’s because the law generally prohibits such testimony. Due process requires it.
In a criminal trial, the state bears the burden of proving each and every element of the crime charged. Evidence of other bad acts is generally inadmissible. The state is prohibited from offering what lawyer’s call “propensity” evidence, facts showing that a defendant has a tendency to do bad things.
What distinguishes a criminal trial from, let’s say, a marital brawl, is disciplined fact finding. A married couple might hurl a lifetime of accumulated grievances at one another in the midst of a fight. The law expects more restraint from lawyers.
Murder, like almost all crimes, involves a prohibited act, the unlawful taking of another’s life, accompanied by a culpable, or blameworthy, mental state. In Connecticut, the murder statute is simplicity itself: One is guilty of murder if one has the specific intent, or conscious objective, of taking another’s life, and one does, in fact, take that life.
In Massachusetts, where Hernandez is being tried, things are more complex. Murder in the first degree involves the unlawful taking of a life by a person inspired either by “deliberately premeditated malice aforethought” or “extreme atrocity or cruelty.” (There is a third form of first degree murder — the killing of another in the commission or attempted commission of a felony punishable by death or imprisonment for life.)
There are exceptions to the bar against propensity evidence. If the state can show that prior bad acts shed light on such facts as a defendant’s intent, motive, plans, and a host of other factors, a trial judge might permit such evidence. But a judge must always determine whether evidence is not unfairly prejudicial.
Typically, rulings about the admissibility of prior bad act evidence are made prior to trial, to eliminate the possibility of jurors hearing things that might unfairly color the testimony they hear.
In the Hernandez case, the trial judge, E. Susan Garsh, rejected not just the prosecution effort to introduce significant prior bad acts evidence, but also barred evidence the state said would show that Lloyd was with Hernandez, and was fearful of Hernandez, just before Lloyd was killed.
Jurors will not hear evidence about the double murder in Boston, the shooting in Florida, or the photograph of Hernandez with a Glock. Neither will jurors hear about text messages in which Lloyd reportedly stated that he was with “Nfl” and “Just so u know.”
The state contends the text messages show that Lloyd was fearful of Hernandez. Judge Garsh rejected that claim, calling it speculative.
These pre-trial rulings, while helpful to the defense, may not be a fatal blow to the case against Hernandez. The state alleges that Hernandez and two others, Carlos Ortiz and Ernest Wallace, Jr., were with Lloyd the night he was killed.
All three men have been accused of murder in what Massachusetts calls a “joint venture.” To date, the state has not yet declared who among the three was the triggerman. Indeed, the state has no weapon to introduce into evidence.
Ortiz or Wallace may very well turn, or “flip,” on Hernandez in exchange for a sentence of something less than life.
Keep an eye on a defense known as “mere presence.” A defendant who is merely present at the commission of a crime another commits is not guilty of an offense so long as he neither planned it, knew it was about to take place, nor otherwise conspired in a course of unlawful conduct. It would not surprise me to see Hernandez’s lawyers make such a claim in this case.
Of course, doing so is a very risky strategy. It might well lead Judge Garsh to reconsider her ruling barring evidence of the prior shootings in Boston and Florida.
Mere presence means that a defendant was at the scene of an unlawful act but lacked a guilty mind. Should Hernandez’s defense team go down this road, the prosecution would be within its rights to offer evidence that showed Hernandez had the intent to kill — remember there are exceptions to the bar on propensity evidence. Evidence of intent is one of them.
On the eve of trial, the Hernandez defense team won significant rulings, effectively closing the door to damaging evidence of prior bad acts. It’s now up to the defense to avoid opening those doors by asking questions, or raising themes, that might make excluded evidence relevant.
Trial always involves tiptoeing through a minefield — a false step can be fatal to a defendant’s case.
I’ve generally been of the view that watching another lawyer try a case is akin to watching ice melt on a cool October day. Not this time. The Hernandez case is chock full of legal issues. Good lawyering just might spare him a conviction.