Wednesday February 4th, 2015

Day 3 of the Aaron Hernandez trial was delayed for a potentially revealing development: Judge Susan Garsh dismissed a female juror on grounds the juror may have expressed doubts to people outside the jury about convicting Hernandez. The juror apparently opined that a conviction would be difficult given that no weapon for the murder of Odin Lloyd has been found. Garsh also identified the juror may have lied on her juror questionnaire about the number of Patriots games she had attended. Seventeen other jurors remain empaneled for the trial and 6 will be randomly chosen as alternates before deliberations.

For Hernandez’s attorneys, a juror already feeling doubt about convicting Hernandez represents a very encouraging development. Hernandez’s defense is largely predicated on the absence of crucial evidence. No murder weapon has been found and no eyewitness will testify that he or she saw Hernandez participate in Lloyd’s murder. While the prosecution has significant and possibly sufficient circumstantial evidence-- including photographs, videos, DNA evidence, ballistics and cell phone triangulation results -- to gain a conviction, all it would take is for one juror to find reasonable doubt and there would be no conviction of Hernandez for first-degree murder.

Along those lines, if one juror feels doubt about convicting Hernandez, other jurors might as well. This is particularly possible if Hernandez’s attorneys were more skilled than prosecutors in the jury selection process and if they ensured that prospective jurors inclined to favor Hernandez were selected.

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Timing is another reason for Hernandez’s attorneys to feel optimistic about news that a juror may have already experienced doubt. Remember, the prosecution gets to go first in a criminal trial and is usually well positioned to convince jurors of a defendant’s guilt by the conclusion of its case-in-chief. Hernandez’s attorneys, in contrast, are weeks away from presenting their case-in-chief and offering favorable witnesses and evidence. If prosecutors can’t convince jurors of a defendant’s guilt when they are calling the shots, it is usually very hard to convince them later on.

Reasons to not read too much into a juror favorable to Hernandez’s defense

Hernandez’s attorneys won’t be celebrating quite yet. First, the dismissed juror is no longer on the jury. This person presumably would have been an asset to Hernandez’s defense and now she is off the jury.

Second, the dismissed juror apparently sought to be selected as a juror. This could suggest she wanted to go on the Hernandez jury because of attitudes she formed long before the trial began. This type of juror should not have been selected since jurors are supposed to be impartial. It’s possible none of the other jurors is like her.

Third, the prosecution has only just begun. Prosecutors have yet to present their most damning evidence and it might eliminate any juror doubt that has crept in. A juror feeling doubt at this stage is not necessarily revealing.

Key issues in murder trial of former Patriots tight end Aaron Hernandez

Lastly, remember that Hernandez would need to engineer an extraordinary defense to escape convictions on all of the criminal charges he faces. For instance, while Hernandez might avoid a conviction on first-degree murder for Lloyd’s death, jurors could still convict him of a lower degree of murder, such as second-degree murder or voluntary manslaughter. Jurors could also convict him on one to five weapons charges. Meanwhile, Hernandez is the defendant in an upcoming murder trial for the deaths of Safiro Furtado and Daniel de Abreu. These two men were shot while leaving a Boston nightclub in 2012. As if his rap sheet wasn’t long enough, Hernandez has also been charged with assault and battery charges stemming from alleged incidents while he’s been in jail. Bottom line: even if Hernandez is found not guilty for Lloyd’s murder, he likely won’t be a free man anytime soon.

Shaneah Jenkins back on the stand

After the juror was dismissed, Judge Garsh resumed the proceedings. Shaneah Jenkins, a woman who dated Lloyd and the sister of Hernandez’s fiancé, returned to the witness stand. Last Friday Jenkins testified that Hernandez and Lloyd were not the close friends portrayed by Hernandez attorney Michael Fee in his opening statement. Today she characterized Hernandez as compassionate in consoling her after she learned that Lloyd had been killed. Hernandez, according to Jenkins, reminded her that he had lost his own father at age 16 and that the grieving process takes time. This part of Jenkins’ testimony illuminated a more flattering side of Hernandez’s personality than is typically depicted. Hernandez’s attorneys likely welcomed a characterization of their client as a seemingly empathetic person with whom jurors might relate.

Much less favorable for Hernandez was Jenkins’ testimony that Hernandez failed to visit Lloyd’s family after his death. One inference prosecutors want jurors to make is that if Hernandez was really close friends with Lloyd, why wouldn’t he visit Lloyd’s family after Lloyd had died? Prosecutors also hope jurors make a more speculative inference by concluding that Hernandez not visiting Lloyd’s family is suspicious and perhaps even indicative of a guilty conscience.

Jenkins also testified that her sister, Shayanna Jenkins, acted in a “secretive” manner in the aftermath of Lloyd’s death and that Shayanna continuously received unexplained text messages and phone calls. Here prosecutors want jurors to conclude that persons close to Hernandez, his fiancé, behaved as if they might be connected to Lloyd’s death. The more persons close to Hernandez seem implicated by Lloyd’s death the more likely jurors will conclude that Hernandez was connected to the death.

While Shaneah Jenkins has been a thoughtful and believable witness for the prosecution, she has yet to face cross-examination by Hernandez’s attorneys. Cross-examination of Jenkins could happen as soon as tomorrow. Hernandez’s attorneys will try to identify inconsistencies in her testimony. They will also encourage her to offer details and context that reframe some of the unusual behavior she observed as ordinary or even exonerating.

Michael McCann is a Massachusetts attorney and the founding director of the Sports and Entertainment Law Institute at the University of New Hampshire School of Law. He is also the distinguished visiting Hall of Fame Professor of Law at Mississippi College School of Law.


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