Thursday February 19th, 2015

Could a chewed piece of Blue Cotton Candy Bubblicious gum ultimately determine whether jurors convict Aaron Hernandez for the murder of Odin Lloyd? That possibility emerged during Wednesday’s proceeding before Massachusetts Superior Court Judge Susan Garsh on the 10th day of the trial.

Jurors heard extensive testimony about gum attached to a shell casing found in a Nissan Altima that had been rented by Hernandez. This is the same car allegedly used to transport Lloyd to the industrial park where he was murdered. Three witnesses—North Attleboro (Mass.) Police detective Michael Elliott, former Enterprise Rent-a-Car store manager Keelia Smyth and Massachusetts State Police Crime Lab forensic scientist Alanna Frederick—answered questions from both sides’ attorneys about the discovery and retrieval of the gum. The trio likely left jurors with more questions than answers. That's a positive development for Hernandez’s attorneys, who seek to persuade jurors there is reasonable doubt Hernandez committed the alleged murder.

History of the gum and why it matters for the prosecution

The gum found on the shell casing allegedly originated with a purchase made by Hernandez about an hour and half before Lloyd was killed on June 17, 2013. Prosecutors intend to show that Hernandez, along with co-defendants Ernest Wallace and Carlos Ortiz, stopped at a gas station in Canton, Mass. Hernandez, according to prosecutors, used a credit card to buy gasoline, a cigar and a pack of Blue Cotton Candy Bubblicious gum.

TRIAL COVERAGE: Opening statements | Day 6 | Day 7 | Day 8 | Day 9

About 15 hours later, Hernandez returned the Altima to Enterprise. By that point, the car had sustained scratches and significant damage to the rear-view mirror on the driver’s side. Smyth testified that while Hernandez was apologetic for the damage, he was unsure how the damage occurred. Smyth also said Hernandez offered her a piece of blue cotton candy gum but she politely declined. She didn’t recall whether the gum was Bubblicious or Bubble Yum, a seemingly minor but important point given that prosecutors have referred to both kinds of gum in describing Hernandez’s purchase.

The following morning, Smyth conducted a routine cleaning of the Altima and found several items that didn’t belong, most notably a shell casing and a chewed piece of gum. The gum appeared to be the same kind that Hernandez had purchased at the gas station and had offered to Smyth. Smyth crumpled up the items she found and tossed them into a nearby dumpster. Later, upon watching television news reports about Lloyd’s death, Smyth called the police and expressed concern that there might be a connection between the items she found and Lloyd’s death. Detective Elliott and other officers then drove over to the dumpster and retrieved the evidence. By that point, the gum had stuck to the casing.

Hernandez’s attorneys try to debunk the gum and other evidence

Hernandez attorney James Sultan grilled detective Elliott on Wednesday for the manner in which the dumpster evidence was retrieved and stored. Elliott acknowledged that he and other officers took an unconventional approach by placing the items into a police pickup truck rather than waiting for a crime services unit to arrive (which apparently showed up 20 minutes later). Sultan also led Elliott to acknowledge that he wasn’t sure if an officer had removed the casing from the gum. Throughout the trial Sultan has directed jurors to regard the police’s investigation into Hernandez as breaking established protocols and procedures. Sultan wants jurors to view the investigation as having produced evidence that is unreliable and susceptible to tampering. This strategy was in full force today.

Sultan also aggressively challenged the testimony of Frederick, the forensic scientist, and made clear that Hernandez’s lawyers will wage an aggressive attack on DNA evidence. During direct examination, Frederick recalled collecting soil samples at the Enterprise store’s parking lot. She also described sketching the placement of evidence found at the crime scene.

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But during cross-examination Frederick acknowledged that her diagram reflected the location of placards left by law enforcement rather than the evidence itself. This slight distinction suggested Frederick was not as familiar with the evidence as portrayed during direct examination. Sultan also probed Frederick on why she used estimations instead of precise measurements in her diagram. Although Frederick insisted the diagram was not designed to be precise, Sultan showed her, and the jury, official protocols from Massachusetts State Police Crime Services. These protocols express a preference for measurement of distance rather than estimation. Frederick conceded that specific measurements can be helpful in certain situations and that they only take several minutes to make, but she nonetheless stressed it was not her job to make those measurements. While Frederick adequately responded to Sultan’s questions, she represented another witness for the prosecution who confirmed a lack of police precision at that crime scene.

Sultan continued to confront Frederick when the subject turned to DNA evidence and its relationship to the gum. When prompted by Sultan, Frederick explained that there are two types of DNA transfers: primary and secondary. Primary transfer occurs when there is direct transfer of a person’s DNA to an object. For example, a person’s saliva adhering to a piece of chewed gum or a person’s blood hitting a table would constitute a primary transfer. Secondary transfer, in contrast, arises when DNA found on the first surface adheres to a second surface. Imagine chewed gum attaching to a casing and the casing then containing DNA evidence from the gum, or a binder making contact with blood found on the table and the binder then having blood on it. Sultan also demanded Frederick address the so-called “Locard’s Exchange Principle,” which dictates that whenever two objects come into contact—such as chewed gum and a casing—there is an exchange of physical properties.

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Why did Sultan demand Frederick provide jurors with an introductory lecture on DNA evidence? Because Sultan appears to be laying the groundwork to argue that Hernandez’s DNA from the gum accidentally transferred to the shell casing. If true, Hernandez’s DNA on the casing would not indicate that he touched the casing, and thus would not establish he loaded the gun used to kill Lloyd or picked up bullets from the crime scene. This apparent defense strategy appears corroborated by Sultan’s cross-examination of Smyth, the Enterprise store manager. Sultan effectively led Smyth to acknowledge that she “crumpled up” and discarded the items she found in the car rented by Hernandez. If the items, which also included a Vitamin Water bottle and a child’s drawing, led to an exchange of DNA, Hernandez’s link to the shell casing would become even weaker.

Hernandez tells his fiancée’s uncle “my endorsements are gone”

In another interesting exchange on Wednesday, Azia Jenkins, an uncle of Shayanna Jenkins, recalled visiting Hernandez in the days that followed Lloyd’s death. Jenkins offered particular detail regarding time spent with Hernandez on June 18, 2013, one day after Lloyd’s death. Jenkins testified that he played pool with Hernandez and that they watched Game 6 of the NBA Finals between the San Antonio Spurs and the Miami Heat together. According to Jenkins, a commercial that ran during the game prompted Hernandez to grumble, “My endorsements are gone.”

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Jenkins didn’t share additional details about Hernandez’s alleged statement (which is admissible under Massachusetts rules of evidence), but jurors could certainly read into Hernandez’s choice of words. Was Hernandez indirectly admitting to his fiancée’s uncle that he played a role in Lloyd’s death? Or was Hernandez merely angry that the police and media were linking him to Lloyd’s death and that that damaging linkage would prevent him from obtaining endorsement deals? Puma and CytoSport would terminate their endorsement deals with Hernandez shortly after his arrest on June 26, 2013. Perhaps Hernandez realized that his endorsement deals were imperiled and that no other company would want him to endorse its products. Moreover, since Azia Jenkins is also the uncle of Lloyd’s girlfriend, Shaneah Jenkins, it seems unlikely Hernandez would admit he played a role in murdering a man who had dated a family member. Still, Jenkins’ brief exchange on the stand likely caught the ears of jurors.

Defense scores win as Judge Garsh prevents prosecutors from calling key witness to the stand

Without jurors present, Judge Garsh heard competing arguments by the prosecution and defense over whether she would allow testimony by Robert Paradis, described by some as a “friend” of Hernandez. Prosecutors sought to call Paradis to the stand, as he reportedly saw Hernandez in California six weeks before Lloyd’s death. Paradis believed Hernandez may have been carrying a .45-Glock pistol, the same kind of gun prosecutors believe was used to murder Lloyd. While on the stand Wednesday, Paradis acknowledged that he didn’t actually see Hernandez with said gun but felt it in his shirt at one point.

As expected, Judge Garsh denied prosecutors from allowing Paradis to testify about the topic. The admission of his testimony could have prejudiced jurors against Hernandez for possibly holding a gun when there is no evidence that it was the actual gun used to kill Lloyd or had anything to do with this case. Judges generally deny evidence that runs the risk of being more prejudicial than probative. Judges are also skeptical of speculative evidence. Plus, had Judge Garsh admitted the testimony of Paradis, it would have provided potential grounds for Hernandez’s attorneys to appeal a guilty verdict.

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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