Saturday February 21st, 2015

On Day 12 of the Aaron Hernandez trial, jurors saw video of what Bristol County (Mass.) prosecutors say is Aaron Hernandez picking up Odin Lloyd at his Boston home at around 2:30 am on June 17, 2013. Three unmanned surveillance cameras on and around the house of Jose Lopez, a neighbor of Lloyd, recorded the video in black and white. The video displayed a man, whom Lopez identified as Lloyd, walk at a normal pace towards a silver four-door sedan. This is key evidence for the prosecution on at least two fronts. First, it connects with jurors on an emotional level: Lloyd is seen taking his last steps from the house he shared with his mother, Ursula Ward, and his two sisters and into the car allegedly used to take him to his death. Second, the video helps prosecutors convince jurors of a specific timeline. Prosecutors contend that Hernandez picked up Lloyd and then drove him to an industrial park where Lloyd was murdered.

TRIAL COVERAGE: Opening statements | Day 8 | Day 9 | Day 10 | Day 11 

Lopez’s cameras, however, were positioned across the street. The walking man (Lloyd) appeared imprecisely and only at a distance. The fact that it was dark outside didn’t help the image resolution, either. As a result, it was impossible to credibly assess facial expressions. This could be important to jurors if they place significance in knowing whether Lloyd seemed afraid or calm.

Even less clear from the video is whether Hernandez appears. Prosecutors allege that Lloyd entered a silver Nissan Altima driven by Hernandez, who is accused of then driving the car to an industrial park where Lloyd was murdered. Video presented so far does not show an identifiable image of the person driving the car. Prosecutors intend to introduce a slow motion version of the video but that matter has not been resolved.

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Hernandez’s lawyers on Friday also used earlier video taken by one of Lopez’s cameras to suggest the situation at Lloyd’s home may have been more complicated than merely Hernandez picking up Lloyd. Video taken at 1:13 a.m. shows a person identified as Lloyd get into a black Chevy Suburban parked next to his home and then drive away. The Suburban, which records indicate was rented by Hernandez, returns an hour later. Minutes elapse before the man exits the car. Jurors, whom Hernandez’s attorneys hope develop doubt about the facts, are left to wonder what might have been going on.

Debatable impact of video and testimony showing Hernandez with Lloyd

Evidence of Hernandez being with Lloyd shortly before Lloyd’s murder is clearly a positive for the prosecution. In a case without a murder weapon or an eyewitness, establishing Hernandez’s proximity to Lloyd at the time of Lloyd’s death is crucial. Although Hernandez being with Lloyd obviously does not prove that Hernandez murdered or even contributed to the murder of Lloyd, it decisively points in that direction.

Remember, evidence strongly suggests that Lloyd was executed, thus rendering any theory of an accidental or inadvertent shooting unlikely. If jurors believe that Hernandez was with Lloyd, it wouldn’t require much imagination for them to conclude that he actively participated in Lloyd’s murder. This is especially troubling for Hernandez and his attorneys since Massachusetts recognizes “joint venture” as an acceptable theory for conviction. Joint venture means Hernandez need not have pulled the trigger in order to be found guilty of Lloyd’s murder. He only needed to have undertaken a significant role in the shooting.

To play Devil’s Advocate, however, jurors might find Hernandez’s behavior odd for a murderer. He appeared to make no attempt to conceal his identity in the hours preceding Lloyd’s death and his demeanor didn’t seem to raise any suspicions, either. Notice that if Hernandez picked up Lloyd at Lloyd’s home in Boston, Hernandez would have done so knowing that witnesses may have been present. One apparently was: Lloyd’s sister, Olivia Thibou, reportedly watched her brother get in the car. Picking up Lloyd on a public street also allowed for the possibility of surveillance cameras to record the interaction. Through Lopez’s video, such a recording happened.

The debatable significance of Hernandez’s proximity to Lloyd was also an issue on Friday when Jwan Farhan testified. Farhan worked as a cashier at the Blue Hill Express Gas Station in Canton (Mass.) when Hernandez stopped by about 90 minutes before Lloyd’s death. Farhan testified that Hernandez bought gas, bubble gum and a cigar. Farhan identified Hernandez with certainty. He also detailed Hernandez’s purchases, most notably confirming that Hernandez bought the same type of gum later found on a shell casing in a car rented by Hernandez. Farhan further indicated that Hernandez drove off from the gas station in the general direction of Lloyd’s home. These parts of Farhan’s testimony clearly advanced the prosecution’s case against Hernandez.

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During cross-examination, however, Hernandez attorney Michael Fee asked Farhan about Hernandez’s behavior. Farhan acknowledged that Hernandez acted like a typical customer, and made no attempt to conceal his identity. Hernandez, Farhan stressed, wore no hood or other accessories that might have lent uncertainty to his identity. If Hernandez had been planning to murder Lloyd, would he have acted more suspiciously or nervously? It is impossible to know. Maybe Hernandez is, as some speculate, “cold blooded.” Or maybe he’s not at all. One thing is for sure: when jurors convene weeks from now, they’ll likely discuss and debate testimonies about Hernandez’s behavior the night of Lloyd’s murder.

Quality of the police’s investigatory work remains a focus

Sargent Paul Baker of the Massachusetts State Police was another key witness on Friday. During direct examination, Baker explained that investigators took careful steps to protect evidence found at the crime scene from rain. He also noted that he and other officers carefully walked around Lloyd’s body. Similarly, Baker claimed that he and 10 other officers proceeded with caution while executing a search warrant at Hernandez’s home with Hernandez and his family present. Baker further testified that Hernandez rested on his couch, watched television and entertained his infant daughter during the search. This characterization of Hernandez implied that officers acted in a respectful way while in Hernandez’s home, or at least did not cause Hernandez and his family alarm. In a case where Hernandez’s attorneys have repeatedly portrayed the investigators as amateurs, Baker effectively countered that portrayal.

On the other hand, Hernandez attorney James Sultan directed jurors attention back to the dumpster where officers retrieved a shell casing wrapped in blue bubble gum. Prosecutors are expected to argue that Hernandez’s DNA is on both the shell casing and gum. Sultan aggressively challenged Baker to explain his role in the retrieval of the casing. Baker noted that he removed the evidence, which was mixed with thrash, and placed it in the back of his police pick-up truck. “You didn’t sterilize the bed of the pickup truck?,” Sultan wondered aloud. Sultan also rhetorically asked Baker, “Ever hear of using evidence bags” instead of mixing homicide evidence with thrash? Baker objected to Sultan’s descriptions and tried to rebut the impact of Sultan’s questions. Sultan, however, established a framework for a forthcoming attack on the reliability and authenticity of expected DNA evidence.

Did “media frenzy” suggest prosecutors prejudged Hernandez?

At different points in the trial, Hernandez’s attorneys have suggested that Hernandez was charged for the murder of Lloyd because he was an easy target and famous. That theme was raised again today. Sultan reminded jurors that when officers executed a search warrant Hernandez’s home a day after the discovery of Lloyd’s body, the media had already been alerted of Hernandez’s possible involvement. As officers searched the house, numerous members of the print and television media waited outside the house. Sultan also implied that the investigation into Lloyd’s murder led to an unusually intense investigation, bringing together numerous state and local police officers whose roles at times arguably seemed redundant or unnecessary.

The prosecution has categorically rejected insinuations that Hernandez was prejudged by law enforcement. While on the stand today, Sargent Baker stressed that he held multiple conversations with other law enforcement officers before Hernandez became a person of interest. As the trial continues, watch for continued efforts by both sides to address whether Hernandez’s celebrity and proximity to Lloyd contributed to his arrest.

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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