Tuesday February 24th, 2015

What will jurors in the Aaron Hernandez trial conclude when they hear that Odin Lloyd texted his sister, Olivia Thibou, minutes before his death, but won't hear about the content of those texts or how Thibou reacted to them? We’ll soon find out. In an important decision on Monday, Massachusetts Superior Court Susan Garsh ruled that prosecutors will be able to question Thibou about the existence of her late brother’s texts. Thibou, however, will be barred from stating anything else about the texts.

The ruling is a departure from Garsh’s statements last Friday, when she indicated she would not allow any information about the texts—including their very existence. Bristol County (Mass.) prosecutor William McCauley, however, persuaded Garsh that testimony about the texts’ existence is only intended to verify that Lloyd was alive while sending the texts. He noted that testimony about the existence of the texts would be consistent with similar pieces of technological evidence, such as data records showing connections between Lloyd’s phone and nearby cell towers. Judge Garsh agreed.

TRIAL COVERAGE: Opening statements | Day 9 | Day 10 | Day 11 | Day 12

The admissibility of Lloyd’s text messages has been a source of significant debate. Last December, Judge Garsh ruled that the texts are inadmissible hearsay. The logic of her controversial ruling, as explained on SI.com, is that the texts constitute hearsay: the texts were out-of-court statements made by a person (Lloyd) who is unavailable to testify. Judge Garsh also determined that there is no applicable exception to hearsay that would allow the texts to be admitted. Keep in mind where the Hernandez case is being tried. These texts would likely be admissible in a federal trial under the so-called “present sense impression exception,” which permits hearsay statements made right after a person’s impression. This is a state trial, however, and Massachusetts does not recognize the present sense impression exception. Judge Garsh also raised doubts about the texts given that Lloyd referenced being “with NFL,” a presumed but not certain reference to Hernandez.

Even with immunity, no guarantee that Hernandez fiancée testifies

In some ways, Judge Garsh’s ruling on Monday serves as the worst possible outcome for the defense in explaining Lloyd’s texts. As Hernandez attorney James Sultan unconvincingly argued to Judge Garsh, jurors will now be free to wonder about Lloyd’s state of mind right before he died. “It invites the jury to speculate as to what is in those texts,” Sultan warned Judge Garsh, “and that could be much more damaging to Mr. Hernandez than the relatively innocuous content that was there.” Sultan asserted that Thibou thought her brother might have been bragging when texting he was with the former New England Patriots star. Now, Sultan warned, jurors could speculate that Lloyd was “being killed” or pleading “for help” when making those texts.

Judge Garsh’s ruling on the texts began an unusually difficult day for Hernandez’s legal team. Until Monday— the 13th day of the trial—Hernandez’s attorneys had enjoyed success rebutting the prosecution’s theories and evidence. It remains to be seen whether Monday was a bump in the road for the defense or if the prosecution has turned a corner.

House cleaners testify about guns, non-disclosure agreements and immigration status

Two housekeepers, Marilia Prinholato and Grazielli Andrade Silva, testified on Monday about working in Hernandez’s North Attleboro (Mass.) home. Prinholato described finding an automatic gun between the box and the mattress of a bed in the guestroom. Silva later testified that she found a small gun in Hernandez’s pants and a larger gun while arranging socks in Hernandez’s drawer.

Judge Garsh admonished jurors that these guns are not related to any of the six charges Hernandez faces. She also reminded jurors that character evidence is inadmissible in a trial unless the defendant chooses to make his character an issue (unlikely to happen in this trial). Still, Hernandez’s house being depicted as a place where guns are somewhat common and concealed in bedding and clothing could cast suspicion over Hernandez in the minds of jurors.

The housekeepers also testified about Hernandez’s fiancée, Shayanna Jenkins, telling them that they needed to sign non-disclosure agreements (NDAs) in order to clean Hernandez’s home. While Hernandez’s attorneys stressed that NDAs are common contractual conditions for persons to perform work in a famous person’s home, the timing of Jenkins severing ties with the housekeepers (allegedly over the NDAs) soon after Lloyd’s death invites jurors to wonder about potential connections.

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

The low point of the day for Hernandez’s legal team seemed to occur when Hernandez attorney Michael Fee cross-examined Silva and attempted to make a connection between her immigration status, her cooperation with the government and her credibility. Silva acknowledged that she currently has an “illegal” status in the United States. She also repeatedly admitted to Fee that she believes cooperating with the government’s investigation of Hernandez “helps” her immigration status. But Silva, at times aided by a translator, used her own words to adamantly stress that she was telling the truth. Along those lines, jurors might surmise that Silva has every reason to be honest. She wants to stay in the United States, where she is a small business owner and employs other house cleaners. If Hernandez’s legal team thought they could undermine Silva by highlighting her immigration status, that plan seemed to backfire.

Hernandez’s attorneys suggest confirmation bias impacted investigation

Since the start of the trial, Hernandez’s attorneys have portrayed the case against Hernandez as one based on convenience and a desire to attract headlines. This framing continued Monday. Hernandez attorney James Sultan aggressively challenged North Attleboro Sergeant Christopher Ciccio to explain why a recreation of Hernandez’s alleged car drive to the industrial park took an identical number of minutes—58—as investigators thought it would. Ciccio, along with other officers, simulated the drive. “What speed did you drive at?” Sultan pressed. Later, Sultan rhetorically opined, “Wasn’t this a recreation designed to take exactly 58 minutes?” The point of Sultan’s cross examination was to imply that once 58 minutes was projected to be the amount of time for the drive, investigators sought to confirm that finding. Ciccio, however, stressed that the recreation followed all relevant procedures and policies. If the recreation was done by the book as it seemed to have been, jurors would be disinclined to find fault with its result.

Sultan applied a similar strategy while cross-examining Massachusetts State Police Sergeant William Tarbokas. Tarbokas testified about major case prints taken of Lloyd at the crime scene. Sultan asked Tarbokas about “confirmation bias,” a term used by behavioral scientists to describe the human tendency to ignore or discount information that rebuts existing beliefs. There is much debate about the accuracy and applicability of confirmation bias and other cognitive biases and heuristics. Some studies, however, suggest that this bias is apparent when law enforcement investigates a person suspected of a crime. Sultan, aware of those studies, sought to get Tarbokas to acknowledge that confirmation bias could have impaired fingerprint analysis in the Hernandez case. Tarbokas categorically refused. Instead, he insisted that after an initial finger print assessment is made, multiple other assessments are made to verify the finger print analysis is correct. Tarbokas was a persuasive witness, which is a good sign for prosecutors considering that much of the case against Hernandez requires believable scientific evidence

Slight discrepancy on number of gunshots heard at crime scene

It may ultimately prove insignificant, but two persons who worked at the industrial park where Lloyd was executed on June 17, 2013 gave different testimonies about the number of gunshots they heard. The two witnesses were Barbara Chan and Michael Ribeiro, both of whom were working at Needle Tech between 3 and 3:30 am. Chan testified to taking a nap in her car between that time and while doing so hearing “a loud bang four or five times.” She thought fireworks had gone off, and described the sounds as two bangs that were several seconds apart followed by three fast bangs. Ribeiro testified to sitting in his car on a break between 3 and 3:30 am and, while listening to talk radio, “heard six or eight loud sounds.”

At this point, the difference in bangs may be immaterial. There is no debate Lloyd was killed and while there is much debate about who could have shot him, evidence suggests he was killed execution-style. Hernandez’s lawyers, however, have repeatedly suggested there is confusion about the crime scene. Uncertainty about the number of shots could help the defense advance an argument that more investigation is needed before jurors can find Hernandez at fault.

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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