Friday February 20th, 2015

Aaron Hernandez’s collection of Nike Air Jordan sneakers and the quality of video taken of Hernandez in the aftermath of Odin Lloyd’s murder were key topics in the courtroom of Massachusetts Superior Court Judge Susan Garsh on Thursday, the 11th day of the trial.

TRIAL COVERAGE: Opening statements | Day 7 | Day 8 | Day 9 | Day 10

Footwear impressions at the crime scene under fire

Bristol County (Mass.) prosecutors intend to show that Hernandez’s footprints were found at the industrial park where Lloyd’s body was discovered on June 17, 2013. At least as of now, prosecutors seem unlikely to offer conclusive evidence on this point.

Throughout the trial, Hernandez’s attorneys have attacked the manner in which evidence was found and collected at the crime scene, as well as at a dumpster next to an Enterprise Rent-a-Car store and at Hernandez’s North Attleboro (Mass.) home. Hernandez’s attorneys have encouraged jurors to conclude that the crime scene was extremely busy, littered with numerous footprints that rendered any footwear impressions unreliable. They have also insisted that footwear impressions and other types of evidence were spoiled by questionable retrieval and collection practices.

Even with immunity, no guarantee that Hernandez fiancée testifies

In future testimony, watch for Hernandez’s attorneys to supply jurors with significant doubt about footprints of shoes that might match those of shoes owned by Hernandez. The defense is poised to insist that many other persons own the exact same model of shoes, including people who wear the same shoe size as Hernandez and who conceivably could have been at the crime scene at some point during the hours and days preceding Lloyd’s death. Remember, Hernandez doesn’t have to convince jurors of his innocence, only that they should have reasonable doubt in his guilt. Attacking each piece of incriminating evidence, including footwear impressions, is crucial to engendering that doubt.

Hernandez’s attorneys arguably advanced a shoe-based defense today. Jurors heard testimony from state troopers about evidence found at Hernandez’s home, including four pairs of Hernandez’s white, size-13 Nike Air Jordan’s. Yet none of those pairs, as the defense has stressed, appears to match those found at the crime scene. Shoes have been a problematic issue for the prosecution. In November 2014, prosecutors returned to Hernandez’s home armed with a search warrant but couldn’t find all of the pertinent shoes, including another pair of Air Jordan’s. Prosecutors do have photos, taken at Hernandez’s home days after Lloyd’s death, of other shoes that might match those at the crime scene. Investigators, however, inexplicably didn’t seize those shoes when they had a chance.

The apparent absence of the actual shoes that left ground impressions at the crime scene is another significant hurdle for prosecutors. They already lack the murder weapon, an eyewitness to the crime and — until shown otherwise — a compelling rationale for why Hernandez would mastermind Lloyd’s murder. Mixed evidence on footwear impressions may not sway jurors of Hernandez’s guilt.

Assessing Hernandez’s behavior while on video

Jurors also heard extensive and often technical testimony on Thursday about the retrieval of video from Hernandez’s home security system. The quality of that video emerged as a point of debate. Video taken of Hernandez in his home shortly after the alleged time of Lloyd’s murder may show Hernandez holding a gun. Massachusetts state trooper John Conron defended the quality of the video, but on cross-examination acknowledged it could be improved.

If jurors lack sufficient confidence in the video’s clarity, they would be poised to develop doubt about Hernandez’s behavior in that video.

Impact of Judge Garsh’s pretrial ruling on Lloyd’s texts apparent today

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

Last December, Hernandez’s attorneys scored a key pretrial victory when Judge Garsh ruled that text messages sent by Odin Lloyd minutes before his death were inadmissible. That decision, as explained on at the time, has prevented prosecutors in the trial from introducing a telling exchange between Lloyd and his sister, Olivia Thibou. In the exchange, Lloyd tells Thibou, “I’m with NFL” — an apparent although not conclusive reference to Hernandez. This exchange would have helped prosecutors geographically position Lloyd with Hernandez right before the murder, a finding that could have made jurors more likely to believe Hernandez was involved with Lloyd’s murder. Given that the text was from the victim and represented Lloyd’s last words, it may have also struck an emotional chord with jurors.

Thursday, the impact of Judge Garsh’s pretrial ruling was felt. State trooper Zachary Johnson testified about going to Lloyd’s home and informing Thibou about her brother’s death. Johnson noted that Thibou immediately shared with Johnson text messages sent by her brother. Had they been admissible, descriptions of those texts could have served as powerful evidence for the prosecution.

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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