A lawyer for accused middle-school killer Michael Hernandez suggested Tuesday that his client may have stabbed eighth-grader Jaime Gough last year as part of a suicide pact.
Prosecutors immediately rejected the theory as baseless, noting among other things that evidence shows the victim tried to fend off the attack and had wounds on his hands.
Hernandez attorney Richard Rosenbaum told a judge that he has evidence that Hernandez and Gough visited a website about suicide, and that Gough told a classmate the day before his death that he once considered killing himself.
Rosenbaum raised the argument in an effort to force Miami-Dade prosecutors to turn over all of the records found on the computer in Gough's bedroom. Rosenbaum said the computer could show that the two communicated in the days before Gough's murder, and possibly provide evidence that Gough ''wanted or acquiesced'' to the stabbing.
Hernandez, now 15, faces first-degree murder charges for allegedly stabbing Gough more than 40 times in a bathroom at Southwood Middle School on Feb. 3, 2004. Hernandez is being tried as an adult. Rosenbaum plans to argue that his client should be found not guilty by reason of insanity. At least one defense expert says Hernandez is schizophrenic, though court-appointed psychologists concluded that he suffers from depression and obsessive-compulsive disorder.
If there is evidence that Gough and Hernandez planned the attack in some way, Rosenbaum said, he then could argue that Hernandez should instead be convicted of a lesser charge -- second-degree murder or manslaughter.
Prosecutors assailed Rosenbaum's theory. They said investigators searched the computer for messages between Gough and Hernandez and found just one innocuous message regarding a class assignment. In addition, Hernandez's screen name was also on Gough's ``buddy list.''
''So the defendant engaged in a suicide pact with the victim?'' assistant state attorney Carin Kahgan asked incredulously. ``It is, candidly, a fishing expedition. . . . It has nothing to do with suicide.''
Kahgan said the evidence also belies the theory: Gough had defensive wounds on his hands, showing that he tried to ward off the attack. And Hernandez also is accused of trying to lure another classmate into a bathroom stall the day before Gough's murder. Hernandez is charged with attempted murder in that case.
Police found written journals in which Hernandez discussed killing Gough, the other classmate and his sister.
Prosecutors have rejected Rosenbaum's request to turn over all the computer files, noting that Gough's parents also used the computer and may have private material on it. Circuit Judge Henry Leyte-Vidal said he would review the computer files found by police and decide later if Rosenbaum can search separately for other files that may be relevant.
Hernandez told police that he and Gough exchanged computer messages during the weekend before the killing. But investigators could not find any such messages, prosecutors said.
Rosenbaum said the pair used an America Online instant-messaging system that, unlike most e-mails, usually does not leave a computer trail for investigators to follow.
Rosenbaum said he believes AOL no longer has records of any messages between the two boys.
A female student told detectives that she used instant messages to talk with Gough the afternoon before he died.
In the last message, Gough told her he had ''contemplated suicide,'' police records show.
Rosenbaum said he also has evidence that Gough and Hernandez discussed the Columbine, Colo., school shootings and visited violent websites together.
Gough's parents declined to comment about Rosenbaum's theory.
But a lawyer for the family, Gregg Schwartz, called the allegations about Gough's mental state ``outrageous.''
''The parents are very upset this was brought up. This doesn't have anything to do with [Hernandez's] defense, that he was insane,'' Schwartz said. ``He confessed to murder. He isn't saying Jaime killed himself.''
Hernandez is scheduled to go to trial in January.
