Everything you ever wanted to ask about Aaron Hernandez

 David Frank, The Daily Record Newswire

When the New England Patriots kick off the 2014 season in September, it’s a virtual certainty that the legal troubles of former tight-end Aaron Hernandez will be far from over.

To date, Hernandez is the subject of an indictment accusing him of the June 17 murder of his friend Odin Lloyd in North Attleborough, Mass.; he’s a defendant in civil suits pending in Florida and Massachusetts; and he’s the potential target of a grand jury investigating other crimes, including a 2012 double homicide in Boston.

The case — with all its twists and turns — raises an array of legal questions, from the most basic to the less obvious. Here are the answers to 17 of those questions.

1. When will the trial start?

Massachusetts Superior Court Standing Order 2-86 states that murder cases are “presumptively” to be tried within 360 days of a defendant’s arraignment. Hernandez entered his not guilty plea in Fall River Superior Court on Sept. 6. That means the parties, who clearly have been doing due diligence to prepare for trial, have another six months to get ready for empanelment to meet that suggested date.

Hernandez’s attorneys have said they want to pick a jury as soon as possible, and Judge E. Susan Garsh has tried on several occasions to move things along. But a pre-trial conference report was due to be filed Feb. 7, and the court has yet to set a firm trial date or schedule a time to hear evidentiary motions.

One of Hernandez’s Boston lawyers, James L. Sultan, recently told Garsh that Bristol county prosecutors had not yet turned over key forensic evidence, which means defense experts can’t complete the work they’ll inevitably have to do in the case. That’s a strong indicator that a trial isn’t in the cards anytime soon.

On top of that, if a grand jury returns an indictment in Boston in connection with the double murder, the proceedings in Fall River would slow down even more while the defense contends with a whole host of new challenges and discovery battles.

2. What’s taking so long in Boston?

The short answer is Suffolk County District Attorney Daniel F. Conley has the benefit of time on his side.

Though the rumor mill has been churning about a possible indictment in Boston, the fact that there is no statute of limitations on murder and that Hernandez is being held without bail for the foreseeable future means there’s no rush.

That said, if prosecutors in Boston drag their feet too long before securing an indictment, Hernandez could argue the delay warrants a dismissal. But the defense would have to somehow show the passage of time made it impossible for him to properly conduct his own investigation and mount a defense. To steal a football phrase, a motion like that is a Hail Mary with little chance of success, given that a judge would have to find Hernandez suffered “actual and substantial prejudice” by the delay.

3. Will Garsh allow prosecutors from Bristol County District Attorney C. Samuel Sutter’s office to admit evidence from the Boston case?

Based on recently released search warrant documents, Sutter’s lawyers might ask Garsh to admit testimony from the Boston homicide as evidence of motive in the North Attleborough case. The judge would make the decision after conducting an evidentiary hearing outside the presence of the jury.

Criminal defense attorney R. Bradford Bailey of Boston says prosecutors likely would claim at such a hearing that the Boston evidence is fair game so long as the judge provides an instruction reminding jurors that they can consider it only for a limited purpose.

But Bailey, a former prosecutor, says the defense will counter that because Hernandez hasn’t been charged (let alone convicted) of anything in Boston, the undue prejudice created by letting a jury consider it would far outweigh any probative value.

“I expect this to be a topic that’s aggressively litigated,” Bailey says. “The defense will certainly point out that this is the kind of evidence that can be extremely damaging for a defendant, particularly in a situation like this where Hernandez hasn’t been found guilty of anything that may or may not have happened in Boston.”

4. What’s the likelihood anyone from the Patriots will testify at trial?

Though team officials clearly want nothing to do with the case, last time we checked there’s no such thing as an NFL-criminal-trial privilege. So, if it’s determined that folks such as Robert Kraft, Bill Belichick or Tom Brady have something relevant to offer, they’ll be making the trek from Foxboro to Fall River.

Who wouldn’t tune in to see Gronk take the stand?

5. Bristol County Sheriff Thomas Hodgson has had lots to say about Hernandez’s life inside the Dartmouth House of Corrections. Hodgson has talked about conversations he’s had with Hernandez and whether the former Pat has been allowed to watch TV, read books and interact with other prisoners. Is that unusual, and what impact could it have on the case?

There’s no question that Hodgson’s been a Chatty Cathy on his high-profile guest. In a perfect world, Hodgson would keep his thoughts to himself. But that’s not the way this sheriff runs his operation.

Unless Hernandez can somehow show Hodgson’s willingness to talk to the press has impacted his fair trial rights, it’s unlikely the sheriff’s conduct will be addressed in front of a judge.

6. Will Hernandez move for a change of venue?

Given the intense coverage the case will continue to generate, and the fact that Hernandez is the most well-known professional athlete to ever face murder charges (O.J. was long retired when his legal troubles arose), moving for a venue change is something the defense undoubtedly will consider.

Judges often defer such rulings until empanelment, when the parties have a chance to hear first-hand from jurors about what impact the pre-trial publicity has had on their ability to be fair and impartial.

If Hernandez does file a change of venue motion, retired Massachusetts Superior Court Judge Robert A. Barton says it’s a safe bet that Garsh will deny it. In fact, since 1998, less than 10 motions for change of venue have been allowed in the Bay State.

“These judges can come up with all their different reasons to deny these motions, but in the end, it all comes back to one thing: m-o-n-e-y,” says Barton, a judge who was known for allowing such motions. “They don’t want to admit it publicly, but they know that if you move the whole kit and caboodle out of town and have to sequester a jury or put up witnesses in hotels and feed them, you’re talking about spending thousands of dollars a day, which they’re not about to do.”

7. If Hernandez’s suit stays in Fall River, will the Lizzie Borden case no longer be Bristol County’s most famous trial?

Thanks to live tweeting and gavel-to-gavel coverage, we’re going with Hernandez on this one.

8. Why did prosecutors seek Garsh’s permission before subpoenaing Hernandez’s jailhouse visitor logs and recorded phone calls from the House of Correction?

Because Massachusetts Rule of Criminal Procedure 17(a)(2) required it. The state’s Supreme Judicial Court has made clear that prosecutors can’t use the rule to eavesdrop on a defendant’s phone calls as a “discovery tool” or “fishing expedition.” Instead, they have to demonstrate by more than conclusory or speculative assertions that the jail recordings have a “rational tendency” to prove or disprove a fact relevant to a case.

Garsh denied the prosecutors’ request for the calls on Feb. 7 without prejudice, finding they had failed to provide enough details in their affidavit. It’s only a matter of time before First Assistant District Attorney William M. McCauley submits a renewed request for the recordings.

9. Is it possible Hernandez didn’t know the jail was monitoring his calls?

Highly unlikely. Before using the phone, Hernandez and whoever he was talking to would have heard the following warning:

“Hello. This is a prepaid collect call from Aaron Hernandez, an inmate at the Bristol County Jail. This call is subject to monitoring and recording. You have the right to remain silent, and if you choose to speak beyond this point, anything you say may be furnished to state and/or federal prosecutors, and may be used against you in a court of law … Once again, the phone call is being recorded.”

Obviously, phone conversations between a lawyer and client are privileged. If such a call were inadvertently disclosed, the prosecutor would be expected to immediately stop listening and notify the defense and judge of the error.

10. Carlos Ortiz was allegedly in a car with Hernandez and Ernest Wallace before and after the murder of Odin Lloyd. Ortiz and Wallace are under indictment on accessory charges. Will Ortiz’s case be severed from Hernandez’s?

As a general matter, judges prefer to try defendants together to avoid excessive delay, expense, and inconvenience to witnesses. But the way things stand now, there’s no way Ortiz can be tried with Hernandez.

Based on information disclosed in court, Ortiz allegedly made incriminating statements to police after the murder. Leaving aside questions that have been raised about Ortiz’s credibility, those statements at times put all three men in the car with Lloyd right before the murder. They also have Hernandez and Wallace exiting the car with Lloyd and returning a short time later without him.

The Supreme Court in Bruton v. U.S. held that admitting a confession like Ortiz’s — which “powerfully” incriminates a co-defendant such as Hernandez — in a joint trial is a Sixth Amendment confrontation clause violation. The SJC has stated that Bruton errors pose too great a risk to the “human limitations of the jury system” to be cured by a judge’s limiting instruction.

While prosecutors may try to argue that an exception to the hearsay rules applies, the reality is that the statements are not coming in unless Ortiz gets on the witness stand during the government’s case and makes himself available for cross-examination. The only way that’ll happen is if Ortiz and the prosecution enter into a deal in which he agrees to testify in exchange for a lesser sentence.

11. Why haven’t prosecutors made a deal with Ortiz?

Ortiz’s Fall River lawyer, John J. Connors, told Lawyers Weekly in November that no deal was in the works. “My focus is on [Ortiz] fighting his charges,” Connors said at the time. “We are looking towards a not guilty; not towards, ‘Is he going to cooperate?’”

While that may be true, recently released documents reveal that Ortiz and Connors did, in fact, sit down with investigators last summer for a proffer session. Proffers usually occur when the government wants to hear what a suspect has to say before deciding whether to make a deal. A suspect typically agrees to answer questions with the understanding that nothing he says will be used against him.

If prosecutors were not interested in exploring a deal, it’s unlikely they would have agreed to sit down with Ortiz in the first place. It’s worth noting that, after the proffer session, McCauley reportedly told Hernandez’s lawyers that Ortiz was a “completely unreliable” witness whom he did not intend to call at trial. Score that as a victory for the former football star.

The defense has argued that it has not been provided with sufficient details of what Ortiz actually said in the proffer. That’s yet another discovery fight likely to play itself out this spring.

12. What will the trial look like without Ortiz or Wallace’s cooperation?

Circumstantial evidence is fair game at trial, but former prosecutor Gerard T. Leone is surprised that, in a case of this magnitude, no deals have been made with anyone inside the car.

The Nixon Peabody attorney says the prosecution wants to be able to re-create the crime at trial as specifically as possible prior to shots being fired. Without either man’s testimony, there doesn’t appear to be any way to directly put Hernandez outside the car with Lloyd at the critical juncture in time.

It’s possible some evidence exists that hasn’t made its way into the public arena, but as of now it would be a case in which the prosecution pieces the evidence together at trial and asks the jury to draw reasonable inferences of guilt from it.

“The circumstantial evidence gets you so far,” Leone says. “It gets you to the scene. It gets you in the presence of where the killing is done. And it puts a gun in [Hernandez’s] hand close in time. But that evidence, in a best-case scenario for the DA, only brings you up to the time of the shooting.”

13. Can the DA really pursue a joint venture theory at trial?

Garsh told the lawyers on Feb. 7 that the law allows the prosecution to pursue a joint venture and/or direct actor theory at trial. But Leone says the decision to only indict Hernandez with murder makes joint venture a tough sell.

“We’ve got one person in this case charged with murder, which means you’ve got to go to trial on the fact that he’s the shooter. Otherwise, who pulled the trigger?” Leone asks. “If there are three people at the scene, and only one is charged with murder and the other two aren’t, I don’t see how they can argue that anybody else was the shooter but Hernandez.”

14. If Ortiz or Wallace don’t budge, how can prosecutors compel their testimony?

They could immunize them from prosecution under G.L.c. 233, §20E. To do so, the law requires prosecutors to notify the attorney general and all other prosecutors in the state of their intention. Each office then has three days to ask to be heard on the request.

Assuming that no one lodges an objection, an immunized witness no longer has a Fifth Amendment privilege and would be compelled to testify. If a witness refuses, a judge could find the witness in contempt and detain him or her for the duration of the trial.

But putting immunized witnesses on the stand in a first-degree murder trial without knowing what they are going to say is a risky move that veteran lawyers (such as the ones in this case) aren’t likely to make.

15. The Lloyd family has filed a wrongful death suit in New Bedford, and Alexander Bradley has sued Hernandez in federal court in Florida for allegedly shooting him in the face outside a strip club in Miami. Do those cases take a backseat to the criminal case?

The short answer: yes.

Bradley’s New York lawyer, David Jaroslawicz, says that while the judge allowed him to conduct some discovery in the case, not a lot of progress is going to be made on the civil side until Hernandez’s criminal matter comes to an end.

“My own guess is that if Hernandez is acquitted, he’ll defend this case,” he says. “If he’s convicted, I assume what he’ll do is appeal his criminal conviction, so the case will probably be stayed pending the appeal.”

While the Hernandez civil matters are going nowhere in the foreseeable future, there have been a handful of Massachusetts cases in recent years in which lawyers were able to make progress on the civil end, even as a criminal case was still playing out.

16. What involvement have the Patriots had in the case so far?

It appears the team’s only role has been in Lloyd’s wrongful death suit.

In a Dec. 19 proceeding, a lawyer for the Patriots agreed in New Bedford Superior Court that if the NFL players’ association prevails in a pending grievance over whether the Patriots owe Hernandez more than $3 million under his contract, the team will not make the payment without first receiving authorization from a judge.

17. Prosecutors have said they plan to handle Hernandez’s case the same as any other case. What are the chances of that?

Former federal prosecutor Paul V. Kelly of Jackson Lewis in Boston says it’s unlikely. Kelly has defended several athletes in criminal trials, including Marty McSorley of the Boston Bruins, who was convicted in 2000 for assaulting an opponent during a game.

“They can say what they want, but the prosecutor undoubtedly treats the case differently than he would if it were a garden-variety case,” Kelly says. “I’ve been in those shoes, and your job is to be evenhanded and consistent. But the reality is that’s easier said than done.”


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