Wednesday February 18th, 2015

Did Aaron Hernandez try to destroy evidence by dismantling his Blackberry or was he merely switching phones because his Blackberry’s battery ran out? Hernandez’s use of his Blackberry, as caught on a police video hours after Odin Lloyd was found dead, took center stage in the courtroom of Judge Susan Garsh in Fall River (Mass.) on Tuesday.

Jurors were shown a video taken of Hernandez in a parking lot next to the North Attleboro Police Station at about 2:10 am on June 18, 2013. Hernandez, who was not under arrest at that point, had just left the police station where he answered initial questions about Lloyd’s death. Upon exiting the police station, Hernandez walked over to a car driven by one of his attorneys. The video shows Hernandez sitting in the car’s passenger seat, wearing red sweatpants and a sweatshirt, while the attorney was standing in front of the driver’s door with his arms leaning against the roof. Hernandez places a brief phone call with a phone that had been provided by the attorney. Hernandez’s call was allegedly made to co-defendant Ernest Wallace. There is no indication what may have been discussed. While speaking on the phone, Hernandez appears to dissemble part of his own phone, a Blackberry. Hernandez’s lawyers, however, contend that Hernandez was only sliding the cover off the phone to change or charge the battery. Hernandez’s call then ends and he’s shown holding a phone in each hand. Although the video is grainy, Hernandez seems to be shown typing emails or texts.

TRIAL COVERAGE: Opening statements Day 5 | Day 6 | Day 7 | Day 8

Hernandez attorney James Sultan aggressively tried to refute law enforcement’s characterization of Hernandez “taking his phone apart” as nothing more than typical use by a Blackberry owner. During Sultan’s cross-examination of North Attleboro (Mass.) police detective Michael Elliott, Sultan successfully led Elliott to acknowledge that Hernandez clearly did not “smash” or “destroy” the phone but simply slid off the phone’s back cover. Elliott also admitted that he was not aware that Hernandez was using a Blackberry, rather than an iPhone, until some time after the video was taken. Elliott also acknowledged he wasn’t sure how Blackberries work and thus wasn’t aware that Hernandez may have been simply trying to address a battery issue. Sultan further directed Elliott to concede that Hernandez’s attorneys later shared Hernandez’s Blackberry with the Massachusetts State Police.

Sultan’s line of questioning was to encourage jurors to regard Hernandez’s behavior as normal use by a Blackberry user. If jurors believe Hernandez was merely borrowing another person’s phone while his own phone was not functioning properly, jurors would be much less inclined to view the parking lot video as holding any significance. Sultan also wants jurors to question the competency and motives of the police in finding Hernandez’s phone behavior to be suspicious when they weren’t familiar with the kind of phone he was using.

Hernandez’s “man cave” and home security system key points of interest on Tuesday

Jurors on Tuesday also heard extensive testimony about the installation of a home theater system in Hernandez’s “man cave” as well as testimony concerning his North Attleboro mansion’s home surveillance system. Mark Archambault, a Rhode Island-based technician, was hired by Hernandez to install the home theater and surveillance systems. Archambault shared details about how he installed a projector, televisions, a surround system and multiple speakers and how Hernandez’s basement was converted into a “dedicated home theater room —​ a mini theater.” Archambault also recalled speaking with Hernandez, who on one occasion had walked down to the basement while Archambault was working to express enthusiasm about the home theater.

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Archambault then outlined how he set up the security camera system, which entailed six digital cameras, three touch panel pads and a DVR hard drive that would record for two days before being recovered over. After installing the cameras, Archambault remembers being questioned by Hernandez about how the system would work. Archambault testified that Hernandez was especially interested in how to turn the basement camera off. According to Archambault, Hernandez didn’t want his fiancée, Shayanna Jenkins, “seeing him hanging out with friends” in the basement, which Hernandez termed his “man cave.” Archambault also recalled Hernandez finding the instructions for turning off the camera to be complicated but that Archambault worked with him to make it more understandable.

During cross-examination, Hernandez attorney Charles Rankin led Archambault to describe the security system as user-friendly and controllable from remote locations. For instance, Archambault responded in the affirmative to Rankin asking if Hernandez could have “turned off any camera easily.” Archambault also stressed that Hernandez could have used an app on his Blackberry or iPad to easily see what was happening in the house and to turn cameras on or off. Archambault’s testimony suggests Hernandez had the technical capacity to disable the camera system on his Blackberry at any time he had WiFi connectivity. This would include while Hernandez was reportedly out with Lloyd, Wallace and co-defendant Carlos Ortiz.

Archambault’s testimony could help the defense. Hernandez’s attorneys want jurors to believe that if Hernandez had killed Lloyd, he clearly would have turned off his camera system before returning home. Archambault’s testimony indicated it would have been easy for Hernandez to do so. Hernandez could have used his Blackberry long before he arrived home to turn off the cameras. Yet Hernandez didn’t do so. Just the opposite, Hernandez was captured on his home surveillance system while holding what appears to be a gun. Was Hernandez merely careless in not disabling the cameras or did he simply have nothing to hide? It’s a question jurors will undoubtedly discuss.

Law enforcement detail crime scene evidence, while Hernandez’s attorneys raise questions about police motives and competence

As in previous days, the crime scene generated discussion on Day 9. Detective Elliott, for example, offered testimony about how he helped to hoist a tarp over footwear impressions located near Lloyd’s body before rain set in. North Attleboro police officer John Grim, meanwhile, detailed the discovery of a towel and shell casings near Lloyd’s body. Dr. Thomas French, an assistant director of the Massachusetts Division of Fisheries and Wildlife, also testified. His testimony concerned scats, another word for animal feces, at the crime scene. French described using a cigar to make a comparison of the size of the scats in order to determine if the feces came from a fox or coyote.

During cross examination of these witnesses, Hernandez attorney Sultan continued to aggressively attack methods used to collect and safeguard evidence at the crime scene. Sultan opened wondered why detective Elliott, who acknowledged he sometimes writes reports after visiting a crime scene, chose not to do so at Lloyd’s crime scene. Sultan found this particularly troubling given that Elliott was at the crime scene for two and a half hours and while there picked up the towel and found shoe prints. As to officer Grim, Sultan posited Bristol County prosecutors had coached him on how to explain the distance between the towel and Lloyd’s body. Sultan also directed Dr. French to acknowledge that he initially regarded the state police’s measurement of the scat to be inaccurate.

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None of these developments is a game-changer, but collectively they help Hernandez’s attorneys portray the police work as shoddy and amateurish. Also recall Hernandez attorney Michael Fee’s opening statement in the trial. The former federal prosecutor characterized the police as deciding early on to pin the murder on Hernandez. If jurors determine the police made errors in collecting evidence, they may be more inclined to buy Fee’s theory that the case against Hernandez was rushed to find guilt.

Testimony about Hernandez’s first visit to the police station and new details about ammunition evidence

For the first time, jurors heard details about Hernandez’s visit to the North Attleboro police station approximately about 18 hours after Lloyd’s death. Last Friday jurors listened to testimony from North Attleboro Police detective Dan Arrighi about his contentious exchange with Hernandez in Hernandez’s driveway. Hernandez nonetheless agreed to drive over to the police station to meet with Arrighi and other officers. Monday detective Elliott recalled Hernandez entering the police station and sitting in an interview room. According to Elliott, Hernandez plugged his Blackberry into the wall to charge it. Elliott then observed Hernandez use the phone, most likely to send texts or emails. After Hernandez was in the room for about 45 minutes, Elliot testified Hernandez asked him if he could shut the lights off in the room. Thereafter Hernandez lay next to his phone and used it .

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As part of his cross-examination of Elliott, Sultan wanted jurors to hear that Hernandez didn’t know he was being watched. Sultan further instructed Elliott to tell jurors that Hernandez also didn’t know he was on camera while in the police parking lot. Clearly to advance the defense’s theory that the police decided early on to blame Hernandez, Sultan then confronted Elliott about his role in, and rationale for, recording Hernandez. Elliott acknowledged that he had entered the police department’s dispatch room so he could operate a camera on the side of the police building next to the parking lot. Elliott also said he zoomed the camera in to watch Hernandez in the car. “You wanted to see what Aaron was doing?,” Sultan loudly asked Elliott. “Yes,” Elliott responded.

Jurors also heard testimony about the police searching Hernandez’s home a day after Lloyd’s death. Elliott explained the officers “were searching for clothing and for Mr. Hernandez’s cell phone.”  He added, “we were told to look for a blue plaid shirt and a white hooded sweatshirt.” A second search warrant was executed at Hernandez’s home and it focused on finding firearms and ammunition. During this second search Elliott used a video camera to record every room in Hernandez’s home. Elliot noted that their searches were largely unsuccessful, although officers did find an unlocked Sentry Box in the basement area. Inside the box contained a small box of .22-caliber ammunition. While Lloyd was reportedly killed by a .45-caliber Glock pistol, a .22-caliber gun was found at the crime scene.

In challenging Elliott’s account of his searches at Hernandez’s home, Sultan highlighted that “the search warrant only authorizes you to look for particular items — it’s not a license for the police to snoop around the house.” Elliott concurred. Sultan then pivoted to ask Elliott why he would videotape Hernandez’s entire home. Elliott responded he and his colleagues believed it was appropriate, but Sultan wasn’t satisfied. Sultan made sure jurors heard that the search and videotaping did not occur in private, but instead occurred at an arguably invasive time: Hernandez, Jenkins and their baby were all home at the time. In response, Elliott stressed Hernandez, Jenkins and their baby all sat comfortably in the living room during the search.

Elliott also detailed visiting the North Attleboro Enterprise Rent-a-Car office.  There he found a Nissan Altima rented by Hernandez and allegedly used by Hernandez to pick up Lloyd from his Boston home and drive him to the industrial park where Lloyd was killed. Jurors saw a photograph of a badly damaged driver’s side mirror. “It looks like it was broken off,” Elliott told the court. Elliot also testified to evidence purportedly found by an Enterprise store manager, Keelia Symth, upon cleaning the Altima. Among other things, she found a shell casing that had been covered by chewed blue bubble gum. Earlier in the night Hernandez had purchased cotton-candy-flavored Bubble Yum bubble gum. Prosecutors intend to show the gum found on the casing matches the kind Hernandez purchased and also contains Hernandez’s DNA. Court adjourned early for the day due to snow before Sultan was able to cross-examine Elliott about his visit to Enterprise.

Hernandez addresses the court and Shayanna Jenkins in attendance

For the first time in the trial, Hernandez spoke briefly today. The circumstance for Hernandez speaking was merely procedural and decidedly uneventful. Judge Garsh had to be certain Hernandez’s attorneys had satisfied Constitutional requirements and adequately briefed him about the introduction of evidence. In response to her questions, Hernandez stood up straight and clearly replied, “Yes, your honor.” He showed little emotion but was deferential and responsive.

Jenkins, Hernandez’s fiancée, was also back in court on Tuesday and sat with Hernandez’s family and friends. According to several observers, Hernandez mouthed, “I love you” to Jenkins, just as he has done other days she’s been in court. If prosecutors thought granting Jenkins immunity would get her to talk, all signs so far suggest that plan will fail.

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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