Game within the Game: The real reason behind the Hernandez motion to dismiss

June 16, 2014

Monday, June 16, 2014

Good afternoon:

I watched the NBC livestream coverage of a pretrial motions hearing in the Odin Lloyd murder case. Aaron Hernandez, the former tight end for the New England Patriots is charged with the murder.

Lloyd and Hernandez were friends and Loyd was dating Hernandez’s fiancee’s sister. Hernandez and Lloyd were seen leaving a nightclub together late at night in downtown Boston in July June 2013 after spending several hours there. Accompanied by two of Hernandez’s friends, they left in Hernandez’s car with Hernandez driving.

Lloyd’s body was discovered early the following morning in an industrial park about a half mile from Hernandez’s home in North Attleborough, Massachusetts. He had been shot to death multiple times with a .45 caliber handgun.

While conceding that the evidence presented to the grand jury established probable cause to believe that Hernandez was present at the scene of the murder, the defense argued that the court should dismiss the indictment because the prosecution had persuaded the grand jury to conclude there was probable cause to believe he had committed the murder, as opposed to being an innocent bystander, by introducing evidence of other uncharged misconduct allegedly committed by Hernandez that would not have been admissible at a trial.

Reuters described the defense argument:

“This was, we submit, a deliberate campaign not to enlighten the grand jury about evidence which would help them decide who had in fact committed this crime, but to tarnish Mr. Hernandez, his character, his background in such a way that they would overlook the absence of direct evidence of culpability,” defense attorney James Sultan told a pre-trial hearing in Fall River District Court.

Game within the Game

The defense did not file this motion with any expectation of persuading the judge to dismiss the indictment. They filed it to discover how the prosecution intends to prove Hernandez engineered and committed the murder despite the failure of the police to recover the murder weapon and Hernandez’s apparent lack of a motive to kill Lloyd. Measured by that yardstick, the motion was a resounding success because the prosecutor spent about an hour detailing a web of circumstantial evidence against Hernandez, including an attempt by Hernandez to kill another former friend in Florida under nearly identical circumstances because the friend disrespected him by not picking up the bill at the nightclub where they were partying together. Hernandez drove him to an industrial park, shot him between the eyes and left him for dead. Unfortunately for Hernandez, the friend survived, although Hernandez was never charged. reports:

After taking under advisement defense motions on dismissing that murder charge and suppressing video evidence obtained by the prosecution, Judge Susan Garsh ruled that both sides should expect to start a trial on October 6, according to tweets from WPRI reporter Chantee Lans and Managing Editor of Massachusetts Lawyer Weekly David Frank, who were both covering today’s hearing.

This should be fascinating case to cover with good lawyers on both sides.

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Why did Philip Chism kill Colleen Ritzer?

November 4, 2013

Monday, November 4, 2013

Good morning:

Why did Philip Chism kill Colleen Ritzer?

Many people are asking that question, including the police. Philip Chism knows the answer, but he has refused to disclose it.

Pursuant to the Fifth Amendment, he has a right to remain silent and cannot be compelled to reveal why he killed her. Therefore, we may never know why he killed her, unless he changes his mind.

This situation raises the following question: Must the prosecution prove motive in order to convict him of murder?

The answer is, “No.”

Recall that a crime consists of committing a prohibited act (actus reus) accompanied by a particular mental state (mens rea), such as premeditation, intent, knowledge, recklessness or criminal (i.e., gross) negligence.

The distinction between recklessness and criminal negligence is that the actor is reckless if he is aware that his conduct will create a substantial risk of causing serious harm or death to another person, yet he goes ahead and commits the act despite the risk; whereas, the actor is criminally negligent if he fails to be aware of that risk and his lack of awareness constitutes a gross deviation from the standard duty to act with due care to avoid injuring or killing other people.

We learned from the Zimmerman case, for example, that Florida defines second degree murder (FL Stat 782.04) as “the unlawful killing of a human being, when perpetrated by any act imminently dangerous to another and evincing a depraved mind regardless of human life, although without any premeditated design to effect the death of any particular individual.” As I noted in yesterday’s post, intent to kill is not an element of second degree murder. The actus reus is committing an unlawful act that causes the death of another person and the mens rea is “evincing a depraved mind regardless of human life, although without any premeditated design to effect the death of any particular individual.”

Relative to the issue of intent, notice that the prosecution must only prove beyond a reasonable doubt that the defendant intended to commit the act that caused serious injury or death, but it is not required to prove that the defendant intended to cause the harm that resulted from the act. This is the critical distinction that eluded the jury in the Zimmerman case.

Under Florida law, the prosecution must prove beyond a reasonable doubt that the act that the defendant intended to commit, which in turn caused the victim’s death, was imminently dangerous to another person evincing a depraved mind regardless of human life. This is a recklessness standard and shooting someone in the chest at point blank range is such an act.

Notice that motive is not mentioned. This is not unusual. Should you desire to check all of the statutes in the United States defining murder, you will find that, with the notable exception of death penalty offenses, none of them require proof of motive. Death penalty offenses require proof of premeditated intent to kill, plus at least one aggravating factor, all of which are listed in the statutes that define the crime. Some motives are defined as aggravating factors. For example, premeditated intent to kill a witness or victim of a crime in order to prevent them from testifying at trial is defined as an aggravating factor in all death penalty statutes.

Massachusetts does not have a death penalty and motive is not an element of the crime of murder. Of course, motive will generally be a relevant consideration at sentencing and that is especially true in Chism’s case, even though the penalty for first-degree-murder is a mandatory life-without-parole sentence. He was 14-years-old when he committed the crime and in June 2012, the U.S. Supreme Court struck down all statutes that require a juvenile to be sentenced to die in prison. Therefore, the court will have to impose a sentence that allows for the possibility of parole, a decision delegated to the parole board.

I suspect Chism’s sketchpad may contain important clues to his motive. He was drawing during class while Colleen Ritzer was explaining some mathematical concepts. Some students mentioned that she walked to his desk and commented about his drawing saying something like, “I didn’t know you could draw.” She then scheduled the appointment after school with him.

Why did Philip Chism kill Colleen Ritzer?


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