As if the folks in Massachusetts didn’t already have their hands full with an alleged murder involving Aaron Hernandez and an unsolved double murder in which he still could be implicated, the powers-that-be are now dusting off an even colder case, in another jurisdiction.
ABC News reports that authorities investigating the murder of Odin Lloyd have contacted police in Gainesville to determine whether Hernandez had a role in a September 2007 shooting there.
A witness to the shooting does not identify Hernandez by name, but the witness said the shooter was a “‘Hawaiian’ or ‘Hispanic’ male who had a large muscular build, stood about 6-foot-3 or 6-foot-4, weighed about 230 or 240 pounds and had a lot of tattoos.”
Here’s the relevant portion of the police report: “As they were waiting for the light to change, the Hawaiian football player and Reggie Nelson walked up to their car on the right side. Then without saying a work [sic], the Hawaiian pointed a small handgun in the front right window and fired five quick shots. [Randall] Cason saw [Corey] Smith slump over with blood coming out of the back of the head, at which time the Hawaiian and Nelson took off running towards McDonald’s.”
Cason later explained to police that, earlier in the week, his brother had gotten into an altercation with several Florida football players. Hernandez, Nelson, and Mike and Maurkice Pouncey had been in a Gainesville nightclub on the night of the shooting — even though Hernandez was still only 17 at the time.
According to the police report, Hernandez declined to talk to investigators, invoking his right to have counsel present.
Setting aside for now any questions regarding the failure of the Gainesville police or the local media to push this matter more aggressively, prosecutors in Massachusetts are now dusting it off for an entirely different reason. They obviously want to determine whether evidence of the Gainesville shooting can be introduced at trial as a “prior bad act” committed by Hernandez.
The lawyers in the crowd know that the operative rule is known broadly as 404(b): “Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, nature of relationship, or absence of mistake or accident.”
In English, this means that evidence of other misconduct can’t be used to generally prove that the defendant is a bad guy, but that it can be used to show, for example, that whatever alternative explanation for the death of Odin Lloyd is offered at trial by Hernandez’s legal team is, to use a technical term, a load of crap. If, for example, the lawyers try to conjure reasonable doubt by claiming that the goal wasn’t to kill Odin Lloyd but to scare him and the gun accidentally went off, proof of the other shooting could be used to counter the idea that it was an accident. (Even then, Hernandez would be facing serious legal problems, but not first-degree murder.)
The problem with so-called 404(b) evidence is that it creates one or more trials within a trial, taking the focus away from the incident at hand. Judges are therefore wary of distracting the jury and prolonging the proceeding, and they have broad discretion to slam the door on the effort to dredge up unrelated events.
If the judge in this case isn’t inclined to seal off that avenue, the Hernandez trial apparently could end up looking a lot like the Seinfeld trial.