Nguyen: Hernandez Trial: Think About the Appeal

Wednesday, February 11, 2015

AiVi Nguyen, GoLocal Worcester MINDSETTER™

Aaron Hernandez’s trial for the 2013 shooting death of Odin Lloyd is well under way. The prosecution is methodically laying out its case-in-chief, which is tough considering its case is mostly based on circumstantial evidence.

Circumstantial evidence requires you to make inferences about what happened – like a fingerprint at a crime scene must mean that the suspect was there at some point, whereas direct evidence would be eyewitness testimony of the suspect at the scene.

The prosecution must offer enough circumstantial evidence so the jury can infer, beyond a reasonable doubt, that Hernandez shot Lloyd to death. Not that simple considering there is no eyewitness testimony of the murder and no murder weapon has been recovered. And what makes it less simple is a series of decisions that Judge Susan Garsh made prior to the start of the trial suppressing certain evidence – meaning the evidence exists, but the jury cannot hear about it.

Some particularly damning examples are:

1. Hernandez faces murder charges for two 2012 Boston shooting deaths.

Why it’s important: Right now, the jury is wondering “why would Hernandez kill Lloyd?” Motive is critical. There is a belief that Hernandez told Lloyd about his involvement in the 2012 slayings and he killed Lloyd to bury the information. Without this evidence, the jury may be left to wonder about motive.

Why it was barred: Hearing that he may have killed two other people is probably going to make the jury think that Hernandez is not a good guy and usually “prior bad acts” are not allowed into evidence for that very reason, because it prejudices the jury.

2. On the day of his murder, Lloyd sent this text message to his sister – “U saw who I was with. . . NFL . . . Just so U know.”

Why it’s important: This text was sent at 3:19am. Lloyd was allegedly killed at 3:25am. I don’t think I need to connect the dots for you here.

Why it was barred: This message could mean anything depending on context. It’s just too speculative.

3. Hernandez took a selfie holding a .45 caliber pistol in 2009.

Why it’s important: No murder weapon has been recovered. However, we do know Lloyd was killed with a .45 caliber pistol. No dot connecting necessary.

Why it was barred: There is no way of knowing if the gun in the picture is the murder weapon. Hernandez won’t dispute that he owned guns. So the picture is probably overkill and is more likely to paint Hernandez as a violent thug, which only acts to prejudice the jury.

Some of you may be absolutely appalled that this evidence was suppressed and thinking “who CARES if the jury thinks Hernandez is a bad guy? He IS a bad guy,” or worse “the jury may make the wrong decision because they did not hear all the evidence.”

So why did the judge suppress this stuff? The straightforward answer is that it was the right thing to do because the evidence was too prejudicial. Simple. The more subtle answer is that it was the right thing to do because Hernandez is getting the trial that he asked for. What the heck does that mean, Nguyen?

As a litigator, I am always thinking about the appeal. While most people think a trial is a standalone road to conviction or acquittal, the reality is that the trial is just a small piece of the big picture. In criminal cases, there is almost always an appeal if the defendant is convicted.

If I am a defendant, on trial for murder, and I lose, I am going to appeal the conviction. But, to appeal the conviction, I need something to appeal. So, in Hernandez’s case, if any one of those three pieces of evidence listed above was let in over his objections, and he was ultimately convicted, you bet your bottom dollar that his defense team would file an appeal arguing that the allowance of the evidence was improper and demand a new trial.

Here, Judge Garsh’s rulings have limited Hernandez’s opportunities for appeal. If the judge gives you exactly what you want, it’s harder to claim later that you didn’t get a fair shake. I’m not suggesting that Judge Garsh has some master plan. I am merely pointing out legal implications that may lessen the disgust you feel about the suppressed evidence.

Of course, those who are disgusted with these rulings will lose their minds if Hernandez is acquitted.

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