Nguyen: Hernandez Did Not Need To Pull The Trigger To Be Found Guilty Of Murder

Wednesday, February 18, 2015

AiVi Nguyen, GoLocal Worcester MINDSETTER™

Attorney Aivi Nguyen

As the trial of Aaron Hernandez for the 2013 shooting death of Odin Lloyd continues in the Fall River Superior Court, an interesting legal quandary that Hernandez faces is beginning to play itself out.

In case you don’t know, there are two other men who have been charged with Lloyd’s murder, Carlos Ortiz and Ernest Wallace, who are being tried separately and currently awaiting their trials. Based on video surveillance evidence, Ortiz, Wallace and Hernandez picked Lloyd up from his Boston home on the night he was murdered and drove him to the industrial park near Hernandez’s North Attleboro home where his body was later discovered. The theory is that one of those men shot Lloyd to death in the industrial park.

On Tuesday, during the cross-examination of a police officer involved in the investigation of Lloyd’s murder, one of Hernandez’s attorneys asked if the officer was aware that video surveillance footage taken from a gas station on the night of Lloyd’s death revealed Ortiz with a white towel draped around his neck, which looked very much like a white towel that was found near Lloyd’s body. The officer testified that he was not aware of the footage.

Hernandez’s defense team is starting to point fingers at the other men charged with Lloyd’s murder, laying the foundation for Hernandez’s “I didn’t do it” defense.

As I mentioned last week, no murder weapon has been recovered, there is no eyewitness testimony of the murder (and it doesn’t look like either Ortiz or Wallace is going to roll on Hernandez) and there is no apparent motive for the murder (remember Judge Susan Garsh barred evidence of Hernandez’s involvement in the two 2012 murders about which some speculate Lloyd had information). Without this evidence, the uphill battle for the prosecution to prove Hernandez was the shooter is more like a vertical climb.

So if Hernandez’s defense squad can kick up enough dust to have the jury unsure as to which of the three men actually pulled the trigger, that’s enough reasonable doubt to get Hernandez off on the first-degree murder charge, right? Not so fast. Hernandez does not need to be the triggerman to be found guilty of first-degree murder. Say what now?

In Massachusetts, there is a legal theory called joint venture liability which applies in cases like this, where there is more than one defendant and it is unclear which of the defendants is the principal criminal (in this case, the shooter). Under the theory, all of the defendants can be charged with, and face, the same penalty as the gunman. Oh Massachusetts, always with something up your sleeve.

Proving the joint venture liability is not easy. Prosecutors have to prove that even if Hernandez was not the one who killed Lloyd, he knowingly participated in the murder and had the same mental state that is required of first-degree murder.

Let’s break that down.

Prosecutors have to show that Hernandez knew that Ortiz and/or Wallace was going to kill Lloyd. Think about how you could prove that. Ortiz and Wallace are not going to admit they had a plan to kill Lloyd. The evidence would have to come from someone else’s testimony or some physical evidence that we do not yet know about. Let’s face it, if there are third parties out there who have information about Hernandez’s involvement in a plan to kill Lloyd, it is highly unlikely they are going to come forward to testify against Hernandez.

Next, to show that Hernandez had the mental state required for first-degree murder the prosecution has to prove premeditation. This means that Hernandez thought about killing Lloyd long enough with a “cool mind” before killing him (or helping someone else kill him). “With a cool mind” means NOT in the heat of the moment (because, duh, if you do something in the heat of the moment, you didn’t premeditate it). Again, not easy to prove given the evidence that we know about so far (that has not been suppressed).

Given all of this, Hernandez’s best, and perhaps only, defense is essentially “I didn’t kill Lloyd and I had no idea that anyone was going to kill Lloyd before it actually happened.”

Interestingly, from a purely legal perspective, if this defense works for Hernandez, arguably it could work for Ortiz and Wallace in their trials for Lloyd’s murder as well. Think about it.

Aivi Nguyen is a trial lawyer with the Law Firm of Bowditch & Dewey, LLP in Worcester.