ATTLEBORO Mass. Aaron Hernandez was given a head fake by prosecutors Thursday.
With the former New England Patriots tight end expecting to come to district court to argue the evidence against him in a probable cause hearing prosecutors instead dropped an indictment on him for the same charges he had faced first degree murder and five weapons charges.
The indictment handed down by a Fall River Mass. grand jury was announced in a hearing by Bristol County (Mass.) District Attorney Samuel Sutter.
Hernandez 23 had been charged with the June 17 shooting murder of 27 year old semipro football player and friend Odin Lloyd. He pleaded not guilty and has been held without bail since June 26.
If convicted Hernandez faces a possible sentence of life in prison without parole. Massachusetts does not have the death penalty.
A hearing for discovery motions was scheduled for Aug. 30 at 2 p.m. ET.
More indictments could be coming for Hernandez. Sutter said there are investigations into a July 2012 double homicide in Boston a drive by shooting that killed two men and an investigation into the claims of a Connecticut man who says Hernandez shot him in the face in Florida in March.
With Hernandez in court Thursday wearing a dark jacket and open collar shirt defense attorney Jamie Sultan asked District Court Stephen Ostrach for a gag order to stay in place so the case won't be tainted by some explosion of publicity from the district attorney's office. Ostrach upheld the order.
Hernandez did not speak during the proceeding nor did he look at Lloyd's family members who sat in two front rows. The family members left without comment.
Michael Fee another Hernandez attorney said when asked about his client's state of mind He's doing as good as you could expect bearing up under the pressure. He understands what's in front of him and he's committed to clearing his name.
Fee added Only a jury will have a say in this case and a jury will have to find beyond a reasonable doubt that the Commonwealth has carried its burden. We believe the burden has not been carried.
Def atty Michael Fee says Aaron Hernandez is an 39 innocent man. 39
Kevin Manahan ( KevinCManahan) August 22 2013Fee says the prosecution will not be able to meet its burden of proof 39 with the evidence we 39 re aware of 39
Kevin Manahan ( KevinCManahan) August 22 2013Fee says 39 hearsay and opinion have been treated as fact and they 39 re not 39
Kevin Manahan ( KevinCManahan) August 22 2013Fee says the defense team wanted a probable cause hearing so it could 39 cross examine witnesses and test the evidence 39
Kevin Manahan ( KevinCManahan) August 22 2013The indictment short circuits the probable cause hearing and the case will move to Fall River Mass. Superior Court though the date of the new arraignment has not been set.
This isn't the first time defense attorneys have talked tough. Last month Hernandez's counsel slammed prosecutors for requesting a delay in their client's probable cause hearing saying that after prosecutors made a dramatic presentation of the evidence against Hernandez on June 26 they have forced him to sit in a solitary cell unable to respond to the charges while the drip of evidence hurts their client's shot at a fair trial.
He's now been in jail without any chance for his lawyers to question a single witness to examine any documents defense attorney Charles Rankin said at the time. After a dramatic presentation last month the district attorney's office said 'We haven't had time we need another month.'
But District Court Judge Daniel O'Shea citing the seriousness of the charge granted a continuance to prosecutors who were waiting for the Fall River grand jury to sift through evidence and decide whether to hand down an indictment.
We'll be here in another month and we'll be ready to go forward on Aug. 22 and at that time we're confident Aaron will be exonerated Rankin said.
O'Shea gave prosecutors until Thursday to get an indictment or prepare to present their evidence at the rescheduled hearing. At a probable cause hearing Hernandez would have had a chance to argue that evidence does not give prosecutors a reason to hold him for trial on the murder charge.
With the indictment however Hernandez's next chance to argue against the evidence will come at his criminal trial.
A second grand jury empaneled in Boston is investigating Hernandez's possible connection to a July 2012 drive by double homicide outside a nightclub in that city.
Also held in connection to the shooting are Carlos Ortiz 27 of Bristol who has been charged with possession of an illegal firearm and Ernest Wallace 41 of Miramar Fla. who was also indicted Thursday on an accessory after the fact charge. Ortiz is being held without bail. Wallace has been unable to post his $500 000 bail.
Wallace was indicted Thursday as an accessory after the fact and will be arraigned Monday. He faces seven years in jail if convicted.
Hernandez's cousin Tanya Cummings Singleton was also indicted for contempt off a grand jury. Granted immunity she has refused to testify and has been jailed since Aug. 1. She is due in court Friday but Sutter said it's unlikely she'll be arraigned at that time.
Prosecutors say Cummings Singleton bought a bus ticket for Wallace to flee from Georgia to Florida after the shooting. Court documents say Ortiz told investigators that he told Cummings Singleton about the shooting.
Lloyd was found June 17 after being shot five times and left in an industrial park about a half mile from Hernandez's North Attleborough Mass. home. Prosecutors say Hernandez Ortiz and Wallace were in the car when Lloyd was killed in the early morning hours and that Hernandez orchestrated the murder of his friend who had been caught talking to people Hernandez didn't like.
Prosecutors have not said who actually fired the fatal shots. Ortiz said Wallace told him that Hernandez did the shooting according to affidavits used to obtain search warrants.
Those documents say Ortiz told police that the car stopped in the industrial park and the other three men got out to urinate. Ortiz who remained in the car said he heard gunshots but it was dark and he could not see who fired the shots. Ortiz told police that the next day on the ride back to Bristol Conn. Wallace told him that Hernandez was the shooter.
The indictment comes as no surprise given the evidence already presented against Hernandez and the low hurdle necessary for prosecutors to clear Suffolk University law professor Chris Dearborn said.
The level of proof to gain an indictment is not really quantifiable said Dearborn who has been a defense attorney and a public defender. Basically a grand jury must determine that there is probable cause a specific crime has been committed in this case murder and that there is probable cause that Aaron Hernandez orchestrated or committed that crime or was a joint venturer.
In other words is it more likely than not that he did any of those
Dearborn added There's a much lower standard to get an indictment than you need to gain a conviction. That's why they say 'You could indict a ham sandwich ' because in a grand jury investigation prosecutors can be looser with the evidence hearsay is admissible hearsay upon hearsay is sometimes allowed. Some evidence presented to a grand jury would never be allowed in a court of law.
Dearborn pointed to the grand jury testimony of Alexander Bradley who was ordered to testify to the grand jury about the civil lawsuit he filed against Hernandez in Florida. Bradley says Hernandez shot him in the eye during an argument as they drove from a Miami strip joint. Bradley's attorney said Hernandez then dumped his client in an alley to die.
Dearborn said Bradley's testimony on a prior act by Hernandez would have to clear several hurdles before it was allowed before a jury and the defense would have several arguments to squash it.
Still testimony like that is allowed to sway a grand jury Dearborn said.
The prosecution which has been stingy with publicly declaring its evidence and has argued against releasing documents to the public is not expected to reveal more of its case against Hernandez at the fresh arraignment.
They'll probably ride the evidence they presented at the first arraignment Dearborn said. It's really easy to say we already said 'X' happened and that was confirmed by the grand jury ' and so on. I doubt the prosecution will come clean with more information.
Prosecutors have appeared to incriminate other Hernandez relatives and associates but Sutter's office has declined comment on whether other indictments are expected.
Hernandez was cut by the Patriots hours before his June arrest.
GALLERY HERNANDEZ SAGA
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