Aaron Hernandez's Chances on Appeal

Would a different defense have spared Aaron Hernandez a life sentence? I suspect his lawyers are wondering, especially after jurors told the media they were shocked to hear the defense say in closing arguments that Hernandez was present at the scene of the murder of Odin Lloyd.

But the defense conceded in opening statements that Hernandez was present when Odin Lloyd’s was killed; it never made any secret of the fact that “mere presence” was the former football star’s defense. Defense efforts will now be directed at the appellate courts. 

The former New England Patriot was convicted of first-degree murder last week in Fall River, Massachusetts, after some 35 hours of jury deliberations. Jurors concluded that Hernandez had not committed premeditated murder, but had been involved in an act of extreme atrocity or cruelty.

It is an unusual verdict.

There was no evidence Hernandez actually shot Lloyd. There needn’t have been, under Massachusetts law. In the Bay State, you can be found guilty of murder if you participate in a joint venture with others. A defendant must be aware that another intended to commit the crime and he must share the intention to commit the crime. One needn’t be the triggerman to be guilty of murder, but one does need a guilty mind.

Yet this jury concluded that Hernandez was not involved in premeditated murder. In other words, the jury concluded that he did not plan this killing. How, then, did he intend to cause it? How did he know it was about to take place?

Connecticut law avoids this question by eliminating premeditation as a requirement to be convicted of murder. We say here that intent can be formed instantaneously. Massachusetts may follow this same conceit, but it harder to argue that knowledge can also instantaneously spring to mind.

There’s something downright squirrely about the Hernandez verdict.

At the close of the state’s case, the defense moved for something called a judgment of acquittal. In legalspeak, that was a request that the judge conclude that no reasonable juror could find the evidence presented by the state sufficient to convict. Had the motion been granted, the case would have ended then and there.

The trial judge denied the motion, concluding, at that point, that the jury could find Hernandez premeditated the killing, and was involved in an extremely atrocious or cruel act. Despite the lack of a confession, a weapon, and a motive, the court concluded that the circumstantial evidence in this case might be sufficient to support a conviction — it was up to the jury to connect the dots offered by the state.

Although circumstantial evidence gets a bad rap — think of the television wise guy snarling at the arresting officer: “all you’s got is circumstantial evidence” — jurors are told daily that circumstantial evidence is as reliable as a direct evidence.

What’s the difference between direct and circumstantial evidence? Direct evidence is something a witness actually senses, whether by sight, sound, touch, smell or even taste. Circumstantial evidence, by contrast, is a reasonable inference, or a conclusion, drawn from an observation. 

Think of it this way. You place a mouse into a shoe box with a small block of cheese. You see this. Now close the box, leaving the mouse and cheese alone. Ten minutes later, when you open the box, the cheese is gone. Where did it go? You know the answer, even if you did not see the mouse actually eat the cheese.

Prosecutors built a strong circumstantial case against Hernandez. He knew the victim. His DNA was on a cigarette butt next to Lloyd’s body. He possessed a gun. He was observed near the crime scene shortly before and after the killing. He behaved suspiciously immediately after the killing. There were ample grounds to suspect that Hernandez was involved.

 But does this evidence really amount to proof beyond a reasonable doubt?

Not one of the three men believed to have participated in the joint venture to kill Lloyd ever gave a statement to the police, or otherwise uttered an inculpatory statement admissible in court. The participants, in other words, offered no evidence of any kind about what their plans were, what they did, what actually happened as Lloyd was killed.

All the state proved was that three men were present when Lloyd was shot. We still have no idea who the shooter was. Because the jury rejected the premeditation claim, it is hard to know how the jury concluded that there was a joint venture. Hernandez could well have stood by while a co-defendant shot Lloyd dead. Merely being present at a crime scene is not proof of knowledge and intent.

On the theory the jury did accept, the shooting was characterized by extreme cruelty or atrocity. The state claimed the six shots that killed Lloyd were proof of that, reasoning, somehow, that while one shot might not have constituted atrocity or extreme cruelty, multiple shots did. Lloyd, after all, might have suffered after the first few rounds.

This bizarre and morbid parsing of a homicide will be front and center on appeal. Could the killer have known that his first shot wasn’t fatal? Given how quickly the shots can be fired, an appellate court might well conclude there is insufficient evidence to prove atrocity.

From my seat in the bleachers, Hernandez’s lawyers tried the case that the evidence required them to try. Hernandez was present: Conceding that was a wise tactical choice.

I am not so sure that jury should have convicted, however. Hernandez has more than a hallelujah pass’s chance of success on appeal. 

Experienced trial lawyers know jurors are unpredictable. You tread warily in their presence, wondering, always and incessantly, what they are thinking, how they are assessing the evidence. In the Hernandez case, jurors convicted, perhaps against the weight of evidence.

It was no fault of defense counsel that jurors did so. Homicide cases require a villain. In this case, Hernandez was condemned, perhaps in error.

Also listed under: Journal Register Columns


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