Aaron Hernandez could be found guilty of murder even if it's not proven he pulled the trigger

·Columnist

FALL RIVER, Mass. – Defense attorney Michael Fee had just spent the better part of a half-hour slapping the prosecution around via a forceful, impressive and at times even mocking opening statement in the murder trial of his client, former New England Patriot Aaron Hernandez.

This was some serious lawyering, not just pointing out the weak links of the case, but perhaps even drawing the jury in on what he essentially called an elaborate con to charge Hernandez in the June 2013 murder of his friend Odin Lloyd.

There's no gun. There are no eyewitnesses that will testify. There is no plausible motive. There was, Fee said, just a "sloppy and unprofessional" investigation hell bent on getting the football star. Fee was particularly strong because he followed a clumsy, halting and too long opening statement from district attorney Patrick Bomberg. This was a courtroom mismatch.

Fee even attacked the most damning hurdle his client must clear: Hernandez's almost certain presence at the murder scene, when Lloyd, Hernandez and two of Hernandez's hometown friends, Ernest Wallace Jr. and Carlos Ortiz, all drove to a North Attleboro, Mass., industrial park at 3:20 a.m. on June 17, 2013.

Hernandez, Wallace and Lloyd got out of the car and walked behind a building into a dark clearing. Only Hernandez and Wallace returned. The next day a high school kid out for a jog found Lloyd dead from six gunshot wounds. Video surveillance, footprints and other evidence overwhelmingly put Hernandez there.

"Mere presence is not enough," Fee argued, essentially implying that Wallace did the killing. "In our system we cannot be convicted of a crime just because we hang with the wrong people or are in the wrong place at the wrong time."

Prosecutors showed video of Aaron Hernandez allegedly holding a gun inside his house.
Prosecutors showed video of Aaron Hernandez allegedly holding a gun inside his house.

Except moments later Judge E. Susan Garsh addressed the jury and pointed out that Fee wasn't accurate and, well, you sort of can be convicted for that under Massachusetts' "joint venture" law.

"The Commonwealth does not require proof that the defendant himself performed an act that caused Odin Lloyd's death to establish that the defendant is guilty of murder," Garsh said. "The Commonwealth requires two things, first the defendant knowingly participated in the commission of this crime and second, he did so with the intent required to commit the crime."

And that there may be the entire case against Aaron Hernandez.

Hernandez has the superior lawyers. He has the holes in the prosecution's case. He has enough reaches by the commonwealth to make fun of their conspiracy tactics. He has pretrial victories that will keep away from the jury damning evidence such as his pending double homicide case up in Boston or the civil suit from when he shot another friend in the face down in Florida

The prosecution has the law, and "joint venture" is a doozy against Hernandez.

There is little question he was there when Lloyd was shot and killed. As such, the law essentially shifts the burden of proof off of the prosecution and onto the defense, a potentially devastating reversal of roles. If he was there, how wasn't he participating and what else would be the intent?

[Related: Who was Odin Lloyd?]

Hernandez needs to convince a jury that he willingly drove Lloyd to that forlorn spot at that lonely hour and willingly got out of the car and walked with Wallace and Lloyd to an even more forlorn and lonely spot. He then needs to argue that Wallace, some flunky from back home in Bristol, Conn., who relied on Hernandez for money and social status, decided, all on his own, to defy his sugar daddy and take a .45 Glock to one of Hernandez's other friends. Then everyone left him there to rot.

Hernandez and Lloyd were, according to Fee, "partying pals" with the shared interests of smoking marijuana and chasing women, often ones that weren't their girlfriends, who happen to be sisters.

After the killing Hernandez didn't call the police or roll on Wallace. (Wallace is also facing a murder charge; Ortiz has been charged as an accessory to murder). Hernandez didn't appear angry about the act or try to distance himself from Wallace.

Instead the remaining threesome repaired to the tricked-out man cave in the basement of Hernandez's McMansion. Hernandez later loaned Wallace a car and stayed in close contact with him, even, prosecutors suggest, trying to cover up the crime together.

Fee is a heck of a lawyer but working his way around that reality is going to be rough. He may be correct that the prosecution doesn't have many facts and appears prone to attempting to turn reasonable behavior into sinister acts. (At one point Bomberg tried to suggest home video footage showing Hernandez and the guys entering his house by ducking under a still opening garage door was, well, somehow something significant. Watch the video below.)

"They will show you one side and one side only," Fee predicted. "They will flood you with meaningless facts."

He wasn't wrong. Later Thursday afternoon the prosecution was doing as predicted, drawing out unnecessary questioning on two witnesses. One was called to prove he employed Lloyd as a landscaper in suburban Boston. The other was a high school kid named Matthew Kent who testified he discovered the body and it was, indeed, dead.

Somehow this took nearly two hours, which will happen when there are exchanges like this between assistant district attorney William McCauley and the 17-yer-old Kent:

Q. "Where is Attleboro in relation to North Attleboro?"

A. "Just south."

Kent also was asked to detail the route he drives to Bishop Feehan High School and how long he had a membership to a health club, neither of which had anything to do with anything. The topper was when detailing how Kent stumbled upon the crime scene and, clearly stunned and just 15 at time, asked the dead body, "Are you all right?"

What response did you receive, McCauley asked?

"No response," Kent said.

How about when he asked a second time?

"No response," Kent said.

Gee, go figure. You could only imagine the jury of 12 women and six men, who will be pared to 12 voting members in the end, were as confused as the witness. This may wind up being one long six-to-10 weeks of trial here on the fifth floor of the Bristol County Superior Court in this old mill town.

Fee must have been chuckling. Maybe the prosecution just had a bad day, but it's the opening day of the biggest trial in these parts since Lizzie Borden beat the rap for whacking her parents with an axe.

Of course, maybe everyone here knows it doesn't much matter.

Joint venture isn't going away no matter how many times Hernandez's defense team invokes his playing days with the beloved, AFC Super Bowl representative, New England Patriots. "Our hometown team," Fee noted. The burden of proof has been flipped whether the defense likes it or not.

So the prosecution may not have the greatest of cases. As Judge Garsh reminded the jury though, it sure does have the law. And that's probably going to be enough to put Aaron Hernandez away.