Former Patriots tight end Aaron Hernandez remains on track to stand trial in January for the June 2013 murder of Odin Lloyd. His lawyers remain interested in moving the trial out of Bristol County, the site of the crime.
According to John R. Ellement of the Boston Globe, Hernandez’s lawyers have fashioned a somewhat unusual argument in support of their position that the case should be moved. They contend that the prosecution essentially plagiarized the work of the federal prosecutors opposing a change of venue in the Boston Marathon bombing case. Hernandez’s lawyers contend that, if the state-level prosecutors really cared about keeping the case against Hernandez in Bristol County, they would have come up with their own arguments.
“Leaving aside all of the reactions one might have on many levels to this extensive, undisclosed submission of another’s work to a court, the conduct appears to convey a lack of interest on the part of the Commonwealth in fashioning its own vigorous opposition to Hernandez’s motion for a change of venue,” Hernandez’s attorneys wrote, via Ellement. “By simply cutting and pasting the work of others, the Commonwealth conveys the message that a recycled opposition is sufficient to blunt Hernandez’s motion for a change of venue. In so doing, the Commonwealth greatly misapprehends the well-founded basis for Hernandez’s motion and the unique circumstances of this case.”
Prosecutor Samuel Sutter downplayed the notion that the use of portions of the filing in the Dzhokhar Tsarnaev prosecution in any way undermines the state’s opposition to the requested change of venue in the Hernandez case.
“To the extent that both the Tsarnaev and Hernandez change of venue motions raise the same basic legal issues, we were required to cite the same Supreme Court cases setting out the governing law as the US Attorney’s Office,” Sutter said. “Any experienced legal observer would understand that this is a standard practice.”
Without actually seeing the documents, it’s impossible to know whether Sutter’s staff simply cut and pasted the mechanical portion of the analysis that sets forth the appropriate legal standard and cites the past cases from which those rules emerged — or whether they actually lifted verbatim the specific arguments made by the lawyers applying those standards to the facts of the case. While it’s very common for portions of briefs and memos and written judicial opinions to be used again and again and again in similar documents, the idea that prosecutors would borrow arguments specific to the facts of one case to a different case seems bizarre, to say the least.
Then again, it’s possible that the same issues in the Tsarnaev case arise in the Hernandez case, and that Sutter’s staff liked the arguments that the feds used in the Tsarnaev case. Even then, it would be odd if anything other than relevant legal standards and citations were cut and pasted from one case to another.
Ultimately, there’s nothing “wrong” about using content from other legal documents. Lawyers are loathe to reinvent the wheel, and nothing in a legal brief is protected by copyright. But it’s a way for Hernandez’s lawyers to make the prosecution look bad and/or sloppy, both to the judge and to anyone who may hear about this specific wrinkle and ultimately serve on the jury.