Aaron Hernandez was recently indicted on two additional murder charges arising out of an incident that predated the Fall River murder case. The Fall River murder case is also now set for the court to consider a motion to dismiss filed by Hernandez’s defense attorneys.

In the recent charges arising from Suffolk County, a grand jury issued indictments against Hernandez for two first degree murders that took place in South Boston in 2012. The victims of the double murder are 28-year-old Daniel Abreu and 29-year-old Safiro Furtado.

The 2012 double homicide is alleged to have occurred around 2am after the victims left a nightclub in a BMW. According to a detective’s investigation, Hernandez was also at the same nightclub before the victims were murdered. Witnesses alleged that Hernandez followed the victims in a light colored SUV, from which he fired multiple rounds at the BMW, killing Abreu and Furtado while injuring a backseat passenger.

These indictments were issued the same day that Hernandez’s defense attorneys filed a motion to dismiss the charges of the first degree murder of Odin Lloyd and unlawful possession of a firearm. The motion was filed on the grounds that the Commonwealth failed to offer sufficient evidence to establish that Hernandez committed these crimes.

The defense attorneys in this Fall River case argue that the Commonwealth’s eighty witnesses and “mountain of documentary and video evidence” that was presented to the grand jury did nothing more than unfairly prejudice and inflame the jury against Hernandez by portraying him as a violent drug abuser with criminal tendencies. In the words of the actual motion, “Basically, all that the Commonwealth showed the grand jury is that Hernandez was in a car with Lloyd and several individuals shortly before Lloyd was shot to death.”

What does the Defense have to show to have the Indictment Dismissed

A motion to dismiss is a procedural motion by which a defendant asks the court to set aside the charges against him.

The Hernandez defense team will have a difficult time getting the indictment dismissed given the standard favors the Commonwealth. Ordinarily, to support a criminal complaint or a grand jury indictment, the Commonwealth must present sufficient evidence to establish “probable cause.” Courts have defined probable cause as reasonably trustworthy information sufficient to warrant a prudent man in believing that a crime has been committed. Massachusetts courts have frequently held that probable cause to sustain an indictment is a significantly lower standard requiring less evidence than to convict a defendant of a crime.

The probable cause standard requires the Commonwealth to present enough evidence to establish probable cause to arrest the defendant on the crime charged, as well as to allow the grand jury to identify the defendant as the particular perpetrator. Commonwealth v. McCarthy, 385 Mass. 160 (1982). With regard to the first prong of probable cause, the Massachusetts Supreme Judicial Court has required that the Commonwealth must offer proof in support of all of the “elements.” A charge of first degree murder, for example, consists of multiple “elements;” briefly stated, the Commonwealth must provide evidence supporting not only the allegation that there was a death, but that the death was intentionally done with premeditation and malice. The Commonwealth will then also be required to offer evidence allowing a reasonable grand jury to believe that the defendant himself had the requisite premeditation and malice, and is likely to have caused the death of the victim.

Hernandez’s defense lawyers have not provided the public with the memorandum of law that typically accompanies a motion to dismiss because the memorandum contained confidential records from the grand jury proceeding. Grand jury proceedings are entirely protected from the public, and any documents citing to them are sealed by statute. However, one can predict that Hernandez’s lawyers will likely rely heavily on the case of
See Commonwealth v. Moran, 453 Mass. 880 (2009) in arguing that no evidence was offered to the grand jury leading to the belief that Hernandez was the actual murderer.

However, the Commonwealth may respond by citing to the more recent case of Commonwealth v. Hanright, 466 Mass. 303 (2013).

The case of Commonwealth v. Hanright involves a motion to dismiss an indictment of felony-murder against a defendant who was an accomplice (or “joint venturer”) to the principal offender who murdered a man during an escape from an armed robbery. The Massachusetts Supreme Judicial Court held that although the defendant did not have the intent to harm the man murdered by the principal offender, the defendant was nonetheless a willing accomplice in the underlying felony (the escape from the armed robbery) that lead to the death of the victim. The principal offender and the defendant accomplice had planned the escape following the armed robbery, and the defendant accomplice facilitated the escape of the principal offender. The SJC held that the motion to dismiss the indictment was properly denied.

This reasoning may be applied to Hernandez if the Commonwealth argues that although Hernandez may not have personally murdered Lloyd, he was complicit in the underlying criminal conduct leading to Lloyd’s death. The Commonwealth will argue that given the low standard of proof to establish probable cause and that inferences at this stage at constructed in favor of the Commonwealth, that the motion should be denied.

The next step after the motion to dismiss is likely to be a motion to suppress hearing. This hearing would involve the defense team attempting to suppress any evidence seized during the search of the house or any other evidence that Hernandez believes was seized in violation of his Constitutional rights.