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Aaron Hernandez's defense appears to be … none

FALL RIVER, Mass. – Through 37 days of relentless prosecution, Aaron Hernandez's defense team has offered no alibis, little to no exculpatory evidence or any other tangible counter argument that the former New England Patriots star killed Odin Lloyd on June 17, 2013.

Legally, of course, it doesn't have to provide anything like that, or even any defense at all. Hernandez is presumed innocent. The burden of proof is completely on the prosecution.

Based on comments made by defense attorney James Sultan here at Bristol County Superior Court Tuesday, the defense strategy will simply be that the Commonwealth did not meet that burden.

Michael Fee, right, will likely give the closing statement in Aaron Hernandez's defense. (AP)
Michael Fee, right, will likely give the closing statement in Aaron Hernandez's defense. (AP)

The prosecution is expected to rest on Thursday. The defense will get its turn on Monday, but Sultan told Judge E. Susan Garsh that he doesn't anticipate defense testimony to stretch more than a single day.

That means Hernandez's fate in this case will rest almost completely on the ability of his high-profile and highly skilled defense team, namely co-council Michael Fee, to craft a powerful and convincing closing argument that says the Commonwealth's story doesn't make any sense and thus Hernandez can't be convicted.

"They will show you one side and one side only," Fee smoothly predicted in his opening argument back in January. "They will flood you with meaningless facts."

Whether the jury finds the facts presented across the last nine weeks, via 128 witnesses (and counting), to actually be meaningless remains to be seen.

There isn't much else the defense can do, however.

Via DNA evidence, surveillance video, cell phone records, tire tracks, shoe prints and other items, Hernandez is clearly established to have picked up Odin Lloyd outside his Boston-area home in the early-morning hours of June 17. Hernandez then drove, along with two other friends who are charged as co-conspirators, to the undeveloped plot of land in an industrial area near Hernandez's North Attleboro home where Lloyd's body was found the next day.

Five spent shell casings were found at the scene. A sixth shell was discovered in the rented car Hernandez drove that night when he returned it to an Enterprise franchise in Rhode Island.

There is no conceivable way to argue Hernandez wasn't at the murder scene around the time of the murder.

The defense will instead have to note that the lack of a murder weapon, a motive and an eyewitness equal reasonable doubt.

Since it's impossible to disprove a negative, it will argue there is nothing to defend here, just an empty theory that is weak and full of holes.

Fee, who almost certainly will give the closing argument for the defense, will focus intently on the lack of motive for murder considering Hernandez and Lloyd were friends and potential brother-in-laws who shared an enthusiasm for smoking marijuana.

Judge Garsh prohibited so-called "prior bad acts" from being admitted to trial, so the jury has not heard about Hernandez's other alleged shootings, including being charged with a 2012 double homicide in Boston, the trial of which should begin later this year.

The defense may call just a single witness, possibly a weapons expert who has been present at times inside the fifth-floor courtroom here at the Fall River Justice Center. He can counter prosecution claims that Hernandez was carrying a Glock 21 Generation 3, .45-caliber semi-automatic pistol in a home security video taken moments after the murder.

Fee and Sultan have argued the image might be anything from a television remote to an iPad. The prosecution brought in a Glock district manager and former New Hampshire police chief who testified that Hernandez did have a gun in his hand, which was the same make and model used to kill Lloyd. Garsh even allowed the witness to hold the weapon up for the jury.

Other than that, the defense may not be much. Everything will be an oratory argument that attempts to poke holes in the prosecution's claims and paints Hernandez as an unfortunate victim of overeager police.

The chief hurdle for the defense is Massachusetts' "Joint Venture" law, which means Hernandez can be convicted of first-degree murder just by being a willing participant. The Commonwealth does not need to prove Hernandez pulled the trigger. As such, it hasn't even attempted it.

"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," Judge Garsh instructed the jurors during opening statements. "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."

Prosecutor William McCauley has spent a great deal of time on joint venture, including showing jurors hours of home security tape from Hernandez's home after the murder.

It showed a calm, relaxed Hernandez in the house the next morning with co-conspirators Ernest Wallace and Carlos Ortiz. Hernandez could have easily called the police to report his friends, went looking for Lloyd (if he was unaware of what happened) or at least been panicked and asking questions.

Instead the three lounge around the basement man cave and backyard pool, with Hernandez's fiancée even making them smoothies to enjoy. At one point Hernandez handed his own then eight-month-old daughter to Wallace to hold, not exactly the type of act you'd commonly do if you feared Wallace was a ruthless murderer.

How do you explain that and the mountain of meticulous evidence presented by the prosecution?

That's what Fee, Rankin and Sultan are paid, presumably quite well, to accomplish.

Fee's opening argument was extremely strong and there is no reason to believe he won't be at least as effective to close.

By presenting so little evidence and using so little time, the defense is essentially telling the jury what it thinks of the prosecution's case: that it's nonsense. The Commonwealth proved nothing and thus we aren't even bothering to argue away such an empty theory, it can claim.

Trying to hack through all of the evidence presented could actually add validity to the Commonwealth's case.

Throughout the trial, Hernandez's chief asset has been his excellent defense team. The facts have rarely been sympathetic.

Now he'll go all in that his lawyers are capable of beating the rap here in Fall River.