Aaron Hernandez Trial (Odin Lloyd)

[Norm loves Vera]

I was catching up on post trail reactions and found this quote.. I remember during the Odin family speaking portion of the sentencing phase of his conviction thinking that AH was sitting and hiding behind his lawyers and a coward.  This says he was forced to sit by a Bailiff or Sheriff:
 
"Moments later, Hernandez was forced by a court officer to sit down, no longer afforded the right to stand like the presumed innocent."
http://sports.yahoo.com/news/aaron-hernandez-finally-taken-down-by-a-5-foot-tall-operations-manager-223034962.html
 
Is that right?

 

[Ferm Sheller]

Another Stra[c]han sacks another Patriot.

 

[Saints Rest]

Seriously?

Ok now I feel seriously dumb.
In my very weak defense, the version i heard on Pandora was not the Johny Cash version, but some Irish punk version that came up on my Dropkick Murphys station. I wasn't paying attention to it just half-listening. Then 10 minutes later, I read the Walpole Prison version and my mind pulled up the tune, no doubt in large unconscious part due to the fact that I actually own the original, but the tune I heard was the punk version not the original and angry Irish can certainly make it sound like their own
No excuses

 

[Koufax]

I read the thread.  The basis for the appeal is not the jury's reasoning or what they said after the trial.  It would be that, as a matter of law, 6 shots from a gun is not extreme cruelty justifying life without parole.
 
The question remains as to whether there is a lesser included charge that was plead and supported by the jury verdict. 

 

[Joshv02]

I read the thread.  The basis for the appeal is not the jury's reasoning or what they said after the trial.  It would be that, as a matter of law, 6 shots from a gun is not extreme cruelty justifying life without parole.

No, the basis of appeal on that theory would be "was there sufficient evidence such that a reasonable jury could find the circumstances of this killing indicate extreme cruelty."  Whether or not a mere six shots is enough is immaterial, even if one of the jurors said it.  The verdict sheet indicate extreme cruelty as the basis, which is all that really matters for the appeal.

 

[Koufax]

OK, that would be the basis.  I think it is a strong basis for an appeal.
 
Which brings me back to the question of whether there is a lesser included charge that would survive the appeal.

 

[joe dokes]

I read the thread.  The basis for the appeal is not the jury's reasoning or what they said after the trial.  It would be that, as a matter of law, 6 shots from a gun is not extreme cruelty justifying life without parole.
 
The question remains as to whether there is a lesser included charge that was plead and supported by the jury verdict. 

 
As with the trial defense, the appellate defense has very little to work with. "6 shots, as a matter of law, is not extreme cruelty," may not be frivolous, but
it is not a winning argument.
 

Second, I'd argue that the statutory requirement of extreme cruelty was not met merely because of 6 shots being fired. In all likelihood the victim was dead after the second or third shot; and the later shots were in all likelihood made to make sure that he was dead. That's not extreme cruelty. Torture is cruelty, not being shot with a gun. 
 

 
Maybe at the margins -- they called him names -- a "that's not extreme cruelty" argument might gain some traction.  But the bolded is baseless. If my first shot is at your left knee, then your right, etc., etc, and then after 5 shots inflicting the most pain possible I finally shoot you in the head, "being shot with a gun is not (as a matter of law) cruelty fails.  As far as I know, thats not what happened here.  (I also do not know if your "in all likelihoood" comes from medical testimony or not.) .
 
FWIW-

The use of extreme atrocity or cruelty, a second basis for finding the defendants guilty of murder in the first degree in this case,was recently described in the following words: “This issue must be left largely to the jury. . . . There is no requirement that the defendant know that his act was extremely atrocious or cruel,**826 and no requirement of deliberate premeditation. . . . A murder may be committed with extreme atrocity or cruelty even though death results from a single blow. . . . Indifference to the victim's pain, as well as actual knowledge of it and taking pleasure in it, is cruelty; and extreme cruelty is only a higher degree of cruelty” (citations omitted). Commonwealth v. Golston, 373 Mass. 249, 260, 366 N.E.2d 744 (1977), cert. denied, 434 U.S. 1039, 98 S.Ct. 777, 54 L.Ed.2d 788 (1978).
 

IMO 6 shots is plenty sufficient to support the verdict.  Even if it did not compel that outcome, it certainly supports it.
 
And from a recent MA case (I assume, but am not sure, that the jury instructions followed this):
 

“[F]actors which a jury can consider in deciding whether a murder was committed with extreme atrocity or cruelty ... include [1] indifference to or taking pleasure in the victim's suffering, [2] consciousness and degree of suffering of the victim, [3] extent of physical injuries, [4] number of blows, [5] manner and force with which delivered, [6] instrument employed,**1211 and [7] disproportion between the means needed to cause death and those employed.”
 

 

 

[Average Reds]

 
FWIW-
IMO 6 shots is plenty sufficient to support the verdict.  Even if it did not compel that outcome, it certainly supports it.
 

 
This is the key issue, because now that AH has been convicted, the burden effectively shifts to the defense.
 
He's not winning an appeal on those grounds, IMO.

 

[Koufax]

Thanks for the informative reply.  I'd still make the argument, assuming that there is no evidence that the first shots were intentionally non-lethal.  I am not aware of anything that supports any of the six factors cited above.  ("Number of blows" suggests physical beating, not bullets).
 
Is there a lesser included charge that would survive an overturning of the murder 1 charge?

 

[Rovin Romine]

OK, that would be the basis.  I think it is a strong basis for an appeal.
 
Which brings me back to the question of whether there is a lesser included charge that would survive the appeal.

 
Joe Dokes beat me to the punch.  It's actually not that strong of a basis for an appeal.  We'll have to wait and see what the defense comes up with.  We're shooting in the dark as to whether or not there's an appealable issue in the case; keep in mind we didn't even get to see some of the trial, such as the voir dire, and whatever was objected to during the white noise sidebars.  The defense could have asked for a mistrial 55 times in this case.  Or not.  We'll see. 
 
If the case is overturned on appeal, it's most likely to be fully overturned (AH has no convictions for anything) and there would be a second trial on the same charges as the first trial.   
 
There's a very small chance, depending on the issues, that the case could be overturned in such a way as to acquit AH (no conviction, no second trial.)  I'd put "very" in 24 point bold red flashing font, but it wouldn't be enough to emphasize it.  
 
***
Even though we're shooting in the dark, my gut feeling is that it's over.  Maybe the defense will surprise us though.  

 

[Joshv02]

Is there a lesser included charge that would survive an overturning of the murder 1 charge?

No; everything goes to the verdict sheet.  

You appeal the verdict sheet, which is for M1.

 

[GregHarris]

It was basically a mafia style killing no?  "Get in the car and think about it while we drive you to your death". 

 

[joe dokes]

Thanks for the informative reply.  I'd still make the argument, assuming that there is no evidence that the first shots were intentionally non-lethal.  I am not aware of anything that supports any of the six factors cited above.  ("Number of blows" suggests physical beating, not bullets).
 
 

 
I suspect that "blows" can be a reasonable proxy for "shots."
 
As I said, not frivolous, but very, very unlikely to succeed.  This is from Garsh's order denying the motion to dimiss the indictment in *this* case:
 

Even a single gunshot may be sufficient to establish extreme atrocity or cruelty where the victim is shot at close range and has some awareness of what is about to happen to him. Commonwealth v. Anderson, 445 Mass. 195, 201, 834 N.E.2d 1159 (2005). Here, given the position of the body when at least some of the shots were fired and the number of shots fired, there was probable cause to return a first degree murder indictment based on extreme atrocity or cruelty.
 

 

[Rovin Romine]

Thanks for the informative reply.  I'd still make the argument, assuming that there is no evidence that the first shots were intentionally non-lethal.  I am not aware of anything that supports any of the six factors cited above.  ("Number of blows" suggests physical beating, not bullets).
 
Is there a lesser included charge that would survive an overturning of the murder 1 charge?

 
Edit - I'm sorry, I misread your question.  No, if M1 is overturned, there is no lesser included that would "take its place."
 
The following is trying to answer this question, "Could the M1 charge be overturned, and the Possession of Firearms charges survive the appeal?"
 
Not knowing MA law, I'd guess this is rare.  The appeal would have to argue that unlike an issue that fundamentally tainted the whole case, something technical happened to taint the Murder 1 charge - say, an error in the jury instruction for that charge only.  So in that case, maybe you get a redo on the M1, but the other convictions stay in place.  
 
As a practical matter, whether or not it's overturned, in whole or in part on appeal, AH will still be incarcerated, waiting for the double murder trial and the (theoretical) OL second trial.  
 
***
Most people believe the appellate court sits there and pores through everything that happened at trial, looking for problems.  This is not the case.  
 
The appellate attorneys attempt to identify specific legal issues and place them in front of the appellate court.  So, for example, if Garsh had allowed testimony about Bradley being shot in the face by AH, the defense would have to identify a point of MA law that says "allowing a witness to testify that they had been harmed by the defendant in an unrelated issue fundamentally taints the case."  They then have to show what happened at trial.  They then have to argue that what happened at trial fits in the "you must overturn this tainted case" box.  The state gets to argue otherwise - either the issue has been misidentified, what happened at trial wasn't exactly what the defense said, or that what did happen does not match the legal issues set forth.
 
Often, there are many things that can remove seemingly problematic conduct from the "overturn" box - such as the particular circumstances of the case, or if the action could have been justified somehow under any sort of legal theory, or if the judge issued an instruction to the jury like "whoops - ignore that shooting thing."  Appellate courts can bend over backwards in how they categorize potential issues and exceptions.  They also usually afford the trial judge very broad discretion in most areas.  Meaning that unless Garsh made a patently bad call, the appellate court won't touch the issue.  
 
Some criminal law issues are more or less set in stone as a basis for appeal (though they vary from state to state).  For example, the prosecution can't denigrate the defense as "smoke and mirrors," or argue that the defendant ought to have testified, or improperly argue evidence that's not in front of the jury, or violate an evidentiary category (say, impeaching a witness with an arrest, not an actual conviction).  But even then, appellate courts can distinguish between an ambiguous phrasing, a slip of the tongue cured by a judge's instruction, or an improper argument/violation being a "keystone" or "fundamental issue" of the prosecution's case or closing argument.  

 

[joe dokes]

 
 
 
***
 
 
Often, there are many things that can remove seemingly problematic conduct from the "overturn" box - such as the particular circumstances of the case, or if the action could have been justified somehow under any sort of legal theory, or if the judge issued an instruction to the jury like "whoops - ignore that shooting thing."  Appellate courts can bend over backwards in how they categorize potential issues and exceptions.  They also usually afford the trial judge very broad discretion in most areas.  Meaning that unless Garsh made a patently bad call, the appellate court won't touch the issue.  
 
 

 
And don't forget the ubiquitous appellate court standby -- "harmless error." Even if an appellate court finds, for example, that certain evidence should not have been admitted, the court will then consider whether the gov't can demonstrate that the error was harmless.  This usually takes the form of "there was other evidence to support the point that the inadmissible evidence was trying to make."

 

[hittery]

He's going to Souza, where he'll be in a cell 19 hours a day. Lucky for him that facility has a bit of a drug smuggling problem.

 

[Rovin Romine]

And Joe illustrates exactly how attorneys earn their bread.  
 
Again, broadly speaking, the sources of law that apply here are the US and MA constitutions, the written statutes of MA, and the decisions of courts that interpret what those constitutions and statutes mean in certain specific circumstances (cases).  This last body of decisions is called "case law" and can range from absolutely binding to merely suggestive.  Mostly attorneys rely on their knowledge of caselaw to argue how the constitutions and plain language of the statutes should be applied in particular situations.  (Because people disagree on the plain language of the constitutions and statutes.) 
 
Here, Joe has found a case (via Garsh's decision) that says, basically, multiple gunshots can form the basis for an M1 Cruelty finding by the jury.  So, as long as it's "allowable" under the law generally, it's allowable here.   The appellate court will confirm that the case Garsh relies on is not whacky or dated or superseded by a newer or more authoritative case.   And that's it, more or less.  The appellate court will not second guess the jury as to what facts they found that go to the finding.  (Not the appellate court's role.)
 
***
KevinYouk pointed out somewhere upthread that what people think of as the most common types of "intentional murders" would be M1 in MA.  M1 isn't some rarefied category that is reserved for the worst of the worst.  
 
Most people can distinguish between "intentional killings" (murders), "a 'quasi-accidental' or 'quasi-justifiable' death which the defendant is still responsible for" (manslaughters), justified killings (usually self-defense or defense of others), and the rare purely accidental/non-fault killings.  

 

[PaulinMyrBch]

 
I'm very much pro death penalty but I must say that in reading this I am pleased that AH is getting life in prison instead as it means we'll hear much less of this AH over the next 40 years.
 
 
If you can believe it, there is no smoking in Montana prisons.  Out here we trade licorice for autographs.
 
 
Lastly, thanks for this thread.  I watched and listened to about 10 minutes of Shayanna's testimony and that's it.  This thread was my main news source for the trial.  Rovin Romine = amazing, thanks for taking the time to post thorough thoughts on what was going on and educating me about the behind the scenes workings of a murder trial.  Also want to give a shout out to PaulinMyrBch who made some real good posts early on though he fell off as the trial dragged a bit.  Hopefully he'll up his game a bit for the next athlete trial.
 
As for those dogging Harry Hooper, he clarified that he was listening on the radio.  For those who can't differentiate the mediums, please refer to the Kennedy-Nixon debates.

 
The more technical it gets the more I have to stand down. I'm too far removed from the day to day to respond quickly on items I know RR will cover in more (and correct) detail. I try to add some general stuff when its relevant, but overall when we've got a guy like RR on the board, its like a trail team. He's first chair and everyone knows their role. I'm the guy wheeling in the file box and filling the water jug, but I still get to wear a suit so I look important. Thanks for the shoutout. 

 

[uncannymanny]

The more I read, the more impressed I am with the state's attorneys and Judge Garsh. Nice to see after so many bungled high profile cases.

Rovin, how would you characterize Munson's assertion that the judge erred on the side of the defense in issues that could cause the conviction to be overturned on appeal?

 

[Rovin Romine]

 
And don't forget the ubiquitous appellate court standby -- "harmless error." Even if an appellate court finds, for example, that certain evidence should not have been admitted, the court will then consider whether the gov't can demonstrate that the error was harmless.  This usually takes the form of "there was other evidence to support the point that the inadmissible evidence was trying to make."

 
I think the point that Joe and I are trying to make is that it's really best to win at trial.  
 
Occasionally, usually after a period of incarceration with felons/jailhouse lawyers, a defendant/client will tell you they want you to "win it on appeal."  This 'brilliant' idea being that you lose the trial, get it magically appealed 5 years down the road, and then really win on the retrial (if they're not fantasizing that the 5 year reversal means double jeopardy applies and they walk free.)   'Cause a guy told me good attorneys can do that shit, you know?  This is usually proposed when the defendant is offered 15 years and upward on a plea deal.   It's a false hope and an idiotic strategy though - so bad that it's arguably malpractice to recommend or endorse it to a client. 
 
Cases do get successfully appealed.  But only a very small fraction of them.  The appeal usually happens within 2 or 3 years, and the retrial happens swiftly.  (If we're talking about a serious case.) 

 

[Rovin Romine]

 
The more technical it gets the more I have to stand down. I'm too far removed from the day to day to respond quickly on items I know RR will cover in more (and correct) detail. I try to add some general stuff when its relevant, but overall when we've got a guy like RR on the board, its like a trail team. He's first chair and everyone knows their role. I'm the guy wheeling in the file box and filling the water jug, but I still get to wear a suit so I look important. Thanks for the shoutout. 

 
Snort.  You're selling your self short.  
 
(BTW, the file box guy can sometimes prevent a trial loss, single handedly, by saying "Uh, dude, you should really zip your fly.")

 

[Rovin Romine]

Rovin, how would you characterize Munson's assertion that the judge erred on the side of the defense in issues that could cause the conviction to be overturned on appeal?

 
Did you mistype this?  Post a link to Munson?  Normally, if the court errs in your favor (or in response to your argument for something) it's not a basis for you to appeal.  
 
It would be like arguing that the state convicted your client with one hand tied behind their back, and now you want the conviction overturned because the state really should have had both hands free. 
 
Edit - Wait, I get it now.  Man.  I'm having a tough time this AM.  The word "erred" threw me off.  Usually it means the judge made a mistake.  So I thought you were saying the judge made a pro-defense mistake that could cause the conviction to be overturned.  
 
But I think you may have meant to imply that in close calls, the judge often ruled in favor of the defense.  So, with that, Yes, I thought the Judge was somewhat pro-defense throughout the trial.  This does limit the issues on appeal for the basic reason I made earlier in this post.  (The defense can't appeal if they get what they requested - they can only appeal on issues that hurt them.)
 
Additionally, if Garsh had been "fair, but on the pro-state end of the spectrum," there's always a chance that an appellate court might be thinking (regardless of this particular case), "Hey, we've got to stop this trend of allowing other pending cases placed in front of juries on what up till now has been Valid Legal Theory X."  Another way of saying this is, if the trial court lives on the edge of what's allowable, it's going to get cut back occasionally.  On the other hand, if the trial court skews toward the defense, they're in a much safer zone - less likely to be appealed on case specific issues and less likely to run afoul of an appellate court reining in a general rule that's drifting too far toward favoring the state. 
 
​As a general quasi-political statement, I think we're all best served (in terms of justice and all attendant costs) by judges who tend to rule pro-defense on close calls. 

 

[MentalDisabldLst]

None of this would have happened if Hernandez had just brought Lloyd's body to Quentin Tarantino's home.

 

[crystalline]

As usual, I missed the good part. It's very sad all around, except for the fact that this seemed to be a very fairly conducted trial. The judge was always extremely well-prepared, and her rulings were very fair. The attorneys on each side were very different in style, but both did a very good job at the end of the day.
 
But I take no pleasure in witnessing the fall of a young man with a future that none of us could ever imagine, squandering it all by killing another young man whose future was not as bright. It's tragic.

 
Thanks for this, it sums up exactly the way I feel.  Tragic all around - so many lives ruined.  Hernandez made bad choices yet I can't take any pleasure in watching him brought low.  It's a sorry situation.  I hope the Jenkins and Lloyd families can put their lives back together.

 

[PayrodsFirstClutchHit]

 

[Kull]

 
 Hernandez made bad choices yet I can't take any pleasure in watching him brought low.

 
Maybe "pleasure" isn't the right word, but it's an enormous relief to know that a total sociopath like this has been permanently removed from society. The kind of of person who, when a drink is spilled on them, takes the time to stalk the person who did it, and then coldly murders that person and shoots at others that are simply near him. There is no tragedy in seeing that kind of person "brought low".

 

[Average Reds]

 
Thanks for this, it sums up exactly the way I feel.  Tragic all around - so many lives ruined.  Hernandez made bad choices yet I can't take any pleasure in watching him brought low.  It's a sorry situation.  I hope the Jenkins and Lloyd families can put their lives back together.

 
It's not pleasure.  But there is satisfaction involved with a just outcome that is warranted, IMO.

 

[GeorgeCostanza]

The one I feel most sorry for, outside of the victim's loved ones, is AH's daughter. Sometimes it really sucks that you don't get to choose your parents. Something I fear I will be saying to my boys often when they get older and start asking "how come mom....." questions.

 

[TomRicardo]

What the hell country we live in where a millionaire can't get away with murder?  Screw you Obama

 

[E5 Yaz]

 
I was thinking yesterday that, at some point, ESPN or some other media site will do its "Top 10 NFL Players Charged With Murder" rankings, right after the "Best Athletes To Commit Suicide" story

 

[theapportioner]

 
I was thinking yesterday that, at some point, ESPN or some other media site will do its "Top 10 NFL Players Charged With Murder" rankings, right after the "Best Athletes To Commit Suicide" story

Ray Lewis should narrate.

 

[DennyDoyle'sBoil]

No, the basis of appeal on that theory would be "was there sufficient evidence such that a reasonable jury could find the circumstances of this killing indicate extreme cruelty."  Whether or not a mere six shots is enough is immaterial, even if one of the jurors said it.  The verdict sheet indicate extreme cruelty as the basis, which is all that really matters for the appeal.

 
A few general thoughts on appeals, since it's the area I tend to know most, although not criminal cases.  The above is an important point that I think appellate lawyers really have trouble explaining.  Trials are conducted in a certain way.  The entire case can be constructed so that everyone basically understands that the basis for the extreme cruelty allegation is the six shots.  Both sides can completely prepare their case that way.  The prosecution can argue that's the basis for it.  The defense can cross-examine dozens of witnesses trying to rebut the point.  It can come up in arguments over the indictment, pre-trial, at trial, at arguments about jury instructions, and everyone in the room can have a general understanding that it is what the fight is all about.  Every juror can be interviewed on tv and say, "yeah, we found extreme cruelty based on the six shots."  On appeal, though, this pretty much goes out the window.  The Commonwealth is fully within its rights to say, "In Commonwealth v. Bonaparte, this court held that callousness after the fact is evidence of extreme cruelty," and then argue that there was evidence in the record from which a reasonable jury could find callousness.  The fact that everyone who participated in the trial knows that's not how the case was ever argued really doesn't help much.
 
Now, I say, "doesn't help much," because this is kind of true as a legal matter, but that doesn't mean that the defense wouldn't have the ability to make strong rhetorical points -- which often color how courts of appeals see the legal issues.  For example, if the Commonwealth never ever suggested callousness as a basis for extreme cruelty -- in closing, during jury instructions, whatever -- the way you argue this on appeal is something like:  "There is no evidence from which a reasonable jury could have found callousness. If there were any doubt about the point, it's removed by the Commonwealth's own strategy.  It never -- in supporting the indictment, arguing to the jury, arguing jury instructions, etc. -- mentioned this as a basis for extreme cruelty."  
 
(This is just an example, since Joe has found cases that say that number of shots is enough, but the point is you are not limited on appeal to some narrative that everyone understood was the primary narrative at trial.  This works on both the appellant and appellee side.)
 
Given the authority for extreme cruelty, it seems to me that the only viable (and it's not that viable) way to try to make this issue appealable is to suggest that there is some inconsistency in the verdict.  That is, you argue that it might be true, that on some facts, the number of shots fired would be a basis for extreme cruelty.  Here, however, on these particular facts as the evidence was put before the jury and based on the way that they were instructed about premeditation, no reasonable jury could have found extreme cruelty but fail to find premeditation.  That is, since they were instructed that premeditation does not require a long period of reflection, and can actually be formed in a second, taking all the evidence in this case including the position of the body, the type of gun used and the number of shots fired, there is simply no space between a finding of extreme cruelty and premeditation.  This shows that the jury was hopelessly confused about its instructions and the difference between the two bases for M1, and thus a retrial is needed.
 
I'm not saying this is a good argument.  In fact, it's a shitty one.  Indeed, it's probably inconsistent with the evidence, and more problematic, it or something like it may not be available to the defense on appeal.  Generally, you can't appeal stuff you didn't the give the judge a chance to correct, and arguments about inconsistency have to be adequately preserved in the arguments about jury instructions  (If, however, the defense objected to having the two lines on there, that may be enough.)  This is more about how to try to craft arguments that have a chance of success on appeal.  If you can't find a legal error -- that is, a situation where something was done that is flatly inconsistent with existing law or the law as you think it should be or is in other jurisdictions -- then you have to give the court of appeals something to chew on that is more substantial than "the evidence doesn't support," although if that is all you got you ride that horse as hard as you can.

 

[singaporesoxfan]

Thanks for the informative reply.  I'd still make the argument, assuming that there is no evidence that the first shots were intentionally non-lethal.  I am not aware of anything that supports any of the six factors cited above.  ("Number of blows" suggests physical beating, not bullets).
 
Is there a lesser included charge that would survive an overturning of the murder 1 charge?

 
I'm no lawyer, but wouldn't "disproportion between the means needed to cause death and those employed" (i.e. means used were excessive / disproportionate compared to what was needed to kill a guy like Lloyd) mean that if six shots were fired and the first shots were intentionally lethal, the rest of the shots would be excessive and disproportionate?

 

[Kevin Youkulele]

 
I'm no lawyer, but wouldn't "disproportion between the means needed to cause death and those employed" (i.e. means used were excessive / disproportionate compared to what was needed to kill a guy like Lloyd) mean that if six shots were fired and the first shots were intentionally lethal, the rest of the shots would be excessive and disproportionate?

Short answer: Yes.  More precise answer: it provides sufficient evidence for the jury to reach the verdict.
 
On the point of ruling in favor of one side in close calls, a couple trial attorneys I know have observed that judges seem to give the close calls to the side they think will lose, to avoid the chance of a successful appeal and retrial.  They do civil suits but it would apply in the criminal context at least to giving close calls to the defense when you expect a guilty verdict regardless.  Essentially, the judge might be doing a sort of harmless error analysis with respect to the prosecution's case: "they might have a right to get the evidence in, but it isn't going to screw them if they don't."
 
A somewhat extreme example where I don't even think there was an objection was that a defendant's economic damages expert had been spouting BS based on improper assumptions and had his credibility destroyed in about 15 minutes of cross.  The lawyer was going to keep at it and make sure there was nothing but a smoking hulk left of his testimony and the judge called a sidebar and said something like, you've made your points, let's move on to the next witness.  Not surprisingly, the jury came back with a number a lot closer to the plaintiff's number.

 

[dcmissle]

IMO, there is only a microscopic chance this verdict is overturned on appeal. If anything, the trial court's rulings were tilted to the defense side, and you can drive an 18-wheeler through harmless error. (Now if we were talking about the admission of evidence relating to other slayings or bad acts, that would be an entirely different story. The prosecutors were fools for seeking it, but unfortunately that is common.)

This is not because appellate courts have scant regard for defendants' rights. It is because they have proper respect for juries and a healthy, well informed sense of what matters and what doesn't. This is not a debate society or faculty lounge. It's about being fair in a very imperfect world.

(If someone again suggests that jurors' statements on their evaluation of the evidence can be used to impeach the verdict, I'm going to start posting links to cases that will put an end to it.)

 

[moly99]

One of the jurors said in the post-trial interview that they agreed on first-degree murder because of the extreme cruelty.  Why? Because 6 shots were fired.

 
This part doesn't make much sense to me either, but I suppose that's the difference between people who have killed something with a gun and those who haven't. Letting a deer slowly bleed to death after one bad shot isn't humane, and using a follow up shot to kill it quickly isn't cruel. (For the record I hate hunting and only do it because I don't want my brother going out hunting alone.) If Lloyd was writhing around in the dirt in pain from the first few bullets, then a few more to end it immediately wouldn't be cruel.
 

 
I'm no lawyer, but wouldn't "disproportion between the means needed to cause death and those employed" (i.e. means used were excessive / disproportionate compared to what was needed to kill a guy like Lloyd) mean that if six shots were fired and the first shots were intentionally lethal, the rest of the shots would be excessive and disproportionate?

 
No, because shots that are intended to be lethal often are not. In real life even a shot to the brain with a small caliber doesn't always kill someone instantly. Hernandez (or someone else) could have shot Lloyd with the intent to kill him in the car, but when he was removed from the car Lloyd was screaming in pain. So they could have shot him until he stopped screaming as a mercy killing.
 
The problem, obviously, is that this requires his lawyers to admit that Hernandez murders people mafia style while they are arguing that no reasonable jury could see the killings as sadistic.

 

[DJnVa]

Ok now I feel seriously dumb.
In my very weak defense, the version i heard on Pandora was not the Johny Cash version, but some Irish punk version that came up on my Dropkick Murphys station.

 
Not helping you.

 

 

[uncannymanny]

Really we're going to bring deer hunting into the discussion of the murder of a human being? I mean...

 

[joe dokes]

 
This part doesn't make much sense to me either, but I suppose that's the difference between people who have killed something with a gun and those who haven't. Letting a deer slowly bleed to death after one bad shot isn't humane, and using a follow up shot to kill it quickly isn't cruel. (For the record I hate hunting and only do it because I don't want my brother going out hunting alone.) If Lloyd was writhing around in the dirt in pain from the first few bullets, then a few more to end it immediately wouldn't be cruel.
 

 
That's one reasonable inference to be made from that sequence.  Another is that he made him suffer before snuffing him out.  As long as any plausible view of the evidence amounts to cruelty, it does not matter on appeal if there's another reasonable view or that all 3,5,7 or 9 judges on the appellate panel would have taken the former interpretation if they had been jurors.
 
The question on appeal is "Is there evidence to support for 'x'."  Not "is there evidence that can support 'not-x.'"  There's almost always arguably conflicting evidence.  The jury's choice among that conflict is virtually unassailable.

 

[Kevin Youkulele]

 
This part doesn't make much sense to me either, but I suppose that's the difference between people who have killed something with a gun and those who haven't. Letting a deer slowly bleed to death after one bad shot isn't humane, and using a follow up shot to kill it quickly isn't cruel. (For the record I hate hunting and only do it because I don't want my brother going out hunting alone.) If Lloyd was writhing around in the dirt in pain from the first few bullets, then a few more to end it immediately wouldn't be cruel.
 
 
No, because shots that are intended to be lethal often are not. In real life even a shot to the brain with a small caliber doesn't always kill someone instantly. Hernandez (or someone else) could have shot Lloyd with the intent to kill him in the car, but when he was removed from the car Lloyd was screaming in pain. So they could have shot him until he stopped screaming as a mercy killing.
 
The problem, obviously, is that this requires his lawyers to admit that Hernandez murders people mafia style while they are arguing that no reasonable jury could see the killings as sadistic.

As you say, this was an argument that could have been made but was not.  After the verdict, it is assumed that all reasonable inferences were drawn in favor of the verdict.  One such reasonable inference is that six shots were excessive.  For reversal on a factual issue, you must show that NO REASONABLE JURY could have reached the conclusion they did on this issue.  It's not gonna happen.

 

[Average Reds]

 
This part doesn't make much sense to me either, but I suppose that's the difference between people who have killed something with a gun and those who haven't. Letting a deer slowly bleed to death after one bad shot isn't humane, and using a follow up shot to kill it quickly isn't cruel. (For the record I hate hunting and only do it because I don't want my brother going out hunting alone.) If Lloyd was writhing around in the dirt in pain from the first few bullets, then a few more to end it immediately wouldn't be cruel.
 

 
Preserving this for when you try to remove it.

 

[mauidano]

A lot of over analyzing going on here now.  It's completely done in the larger picture. Life w/o parole.  Appeal is automatic.  Microscopically slim to none chance overturned. Lining up for the next case where it's in all likelihood it will be just the same.  Fuck him, he will die in prison a slow death. He chose this himself, sometimes you get what you deserve.

 

[singaporesoxfan]

No, because shots that are intended to be lethal often are not. In real life even a shot to the brain with a small caliber doesn't always kill someone instantly. Hernandez (or someone else) could have shot Lloyd with the intent to kill him in the car, but when he was removed from the car Lloyd was screaming in pain. So they could have shot him until he stopped screaming as a mercy killing.
 
The problem, obviously, is that this requires his lawyers to admit that Hernandez murders people mafia style while they are arguing that no reasonable jury could see the killings as sadistic.

 
I was responding to Koufax, who was arguing that only if the first few shots were intentionally non-lethal would the 6 shots be considered cruel, and that if the first bullets killed Lloyd that the number of shots couldn't be used to meet the standard of cruelty. I think that the language of what constitutes "atrocity or cruelty" suggests that if the first few shots were intentionally lethal and killed Lloyd early on, the excessive number of shots would be considered atrocious. And I think the scenario you are describing (first few shots were meant to kill Lloyd, failed to do so, and the shooter used additional shots to kill him "mercifully") strikes me as cruel.
 
Essentially, I can't envision a scenario in which the 6 shots were not either cruel or atrocious, at least as I understand the definitions of the terms.
 
Edit: attempt at clarity

 

[MentalDisabldLst]

Really we're going to bring deer hunting into the discussion of the murder of a human being? I mean...

 
Dick Cheney likes this.

 

[moly99]

That's one reasonable inference to be made from that sequence.  Another is that he made him suffer before snuffing him out.  As long as any plausible view of the evidence amounts to cruelty, it does not matter on appeal if there's another reasonable view or that all 3,5,7 or 9 judges on the appellate panel would have taken the former interpretation if they had been jurors.

 
I wasn't talking about the appeal, but rather the juror's views.
 

Really we're going to bring deer hunting into the discussion of the murder of a human being? I mean...

 
I obviously wasn't comparing them ethically, but in how firearms deaths work. It takes a lot longer to die from blood loss than most people realize. (Unless he was shot in the heart.) As a juror there would at least be reasonable doubt for me that the fifth and sixth bullets were mercy shots. I think he is guilty of murder 1, but the number of shots fired doesn't necessarily establish that.
 
Again, though, I am talking about the juror's views and not anything to do with the appeals process. And "he was screaming and writhing in the dirt in agony after I shot him four times, so I shot him again twice to finish him" probably doesn't make Hernandez more sympathetic anyway.

 

[joe dokes]

 
I wasn't talking about the appeal, but rather the juror's views.
 

 
So was I. I suppose the jury *could* have found it a not-cruel mercy killing.  They also *could* have found it a cruel "suffer for awhile" killing. If those were the only two choices -- which they weren't -- It would seem they chose the latter. 

 

[singaporesoxfan]

Hernandez to 911 operator: Oh my god I accidentally shot my friend 4 times! He may be dead!

911 operator: Calm down sir. I can help. First, let's make sure he's dead.

(Silence, then two gunshots.)

Hernandez: Okay, now what?

 

[uncannymanny]

I obviously wasn't comparing them ethically, but in how firearms deaths work. It takes a lot longer to die from blood loss than most people realize. (Unless he was shot in the heart.) As a juror there would at least be reasonable doubt for me that the fifth and sixth bullets were mercy shots.

Well then, they should have given him a medal for heroism rather than try him for murder. He just didn't want his pal to suffer.

 

[djhb20]

So one of the jurors said that the murder 1 was due to cruelty/indifference instead of premeditation and one of the reasons was that "he could've made different choices."

No, not for nothing, but doesn't premeditation just mean exactly that you made the choice to kill the guy? At least, in the grand jury I did in DC, that was beaten into our head over and again. Premeditation does not require planning all ahead - just making the choice to do it. That is, the "pre" can be a blink of an eye.

Am I wrong?

(Another juror also explicitly said that they held it against Hernandez that he didn't testify to give an alternate explanation.)

 

[Average Reds]

What's your point?