02/10/2015 04:50 pm ET Updated Apr 12, 2015

Hey Aaron Hernandez: Who Shot Odin Lloyd?

A murder trial is a lot like football: a game of strategy. Normally, no jury would convict Aaron Hernandez on a first-degree murder charge absent proof that Hernandez pulled the trigger. O.J. Simpson's prosecutors found the bloody glove that didn't fit and Hernandez's prosecutors found the joint that he lit. No murder weapon! It also does not look like either of Hernandez's two alleged associates will sell him out. One already undermined his credibility by changing his story. While, video surveillance clearly places Hernandez and two other men at the scene of the crime during the commission of the crime, under Massachusetts law, mere presence doesn't equate to murder. Proving he destroyed evidence also doesn't make Hernandez the killer. The question still remains: Who shot Odin Lloyd?

What makes the Hernandez case so unique is that he lives in a State with an unusual legal approach to first-degree murder. Prosecutors don't have to prove who pulled the trigger. In fact they have purposely avoided the topic throughout the trial because they realize it's the one mystery that arouses reasonable doubt in the minds of jurors. Instead they rely on the famous case of Commonwealth v. Zanetti, which created a legal theory of liability that is now being applied to Hernandez. In a circumstance where several people are present at the scene of a crime but it is unclear who fired the gun, the Massachusetts common law permits all defendants be charged under a theory of joint venture liability and all face the same penalty as the principal criminal. To secure a conviction, it requires proof that Hernandez knowingly participated in the crime with the requisite mental state required of first-degree murder. There's the ruse that may or may not make Hernandez a free man once again. Proving Hernandez's mental state is the biggest hurdle faced by the prosecution. It requires a showing of premeditation. Prosecutors must prove that Hernandez formulated the intent to kill Lloyd when they can't even prove he actually killed him. It's a tall order. Joint venture liability is an extremely convoluted and confusing catchall designed to address the case of the phantom felon and convict anyone who may have done it without actually proving they did it.

Let's look at what prosecutors must prove to secure a first-degree murder conviction without a weapon or a witness under joint venture liability: 1. Hernandez was present at the scene of the crime, which the video surveillance clearly proves, 2. He aided in the commission of the crime; Hernandez driving the car to and from the scene of the murder would be enough to establish that and 3. He had the intent that the crime requires. Jurors must decide that Hernandez contemplated the killing of Lloyd, long enough to reflect on it with a cool mind and then either killed Lloyd or assisted in his killing. First of all, what evidence exists to prove such premeditation? Most of the relevant text messages Hernandez sent are inadmissible. Second, if prosecutors can't prove Hernandez killed Lloyd then jurors must assume, Hernandez knew one of his associates would kill Lloyd beforehand. This is why they are painting him as the mastermind without actually calling him the triggerman. The only problem is, there is no evidence to prove he masterminded anything. He simply picked up Lloyd in a rental car with friends and then took him to an industrial lot where the men allegedly smoked a joint together. In the heat of the moment a fight could have arisen and anyone could have shot Lloyd.

It looks like Hernandez's defense team is playing its cards just right, accusing prosecutors of making Hernandez the mastermind because of his notoriety rather than cold hard evidence that he pulled the trigger and had a motive for doing so. They are right. Hernandez may have texted Lloyd that night, picked Lloyd up, confronted Lloyd over his dalliances with men Hernandez didn't like, driven the car down that dirt road a mile from his home where Lloyd was shot, smoked a joint with Lloyd and even been caught holding a gun on his home surveillance video shortly after Lloyd's murder but there's no way to prove Hernandez set out to kill Lloyd that night, decided to kill Lloyd, or knew that one of his associates would kill Lloyd and shared that sentiment. Prosecutors have defaulted to relying on joint venture liability over plain old murder because they can't find the Glock. You know their case is weak when they resort to taking jurors on a field trip to Hernandez's home, which really brings nothing substantial to the prosecution's case.

Perhaps a conviction as a mere accomplice to murder under joint venture liability would have secured a punishment for Hernandez comparable to that of first-degree murder or at least close to it. Looks like prosecutors dropped the football. Aaron Hernandez is arguably just as guilty as O.J. Simpson in the court of public opinion and has just as good a chance of being acquitted. Maybe the sequel to "If I did it," should be, "Where I hid it."