Wednesday February 25th, 2015

What was in the large black trash bag carried by Hernandez’s fiancée, Shayanna Jenkins, a day after Odin Lloyd’s murder? Why did Jenkins carry the bag, which she appeared to find heavy, from Hernandez’s house to the driveway? Why did she then place the bag into the trunk of her sister’s car? Why did Jenkins then drive off? Where did she go? Perhaps most importantly, where is the bag now, if it still even exists? Only Jenkins may know the answers to these and similar questions about a trash bag that could hold the key to the prosecution’s case against Hernandez. The bag could incriminate Hernandez or merely contain what is normally placed in trash bags: trash. This mysterious trash bag was a key topic in Massachusetts Superior Court Judge Susan Garsh’s courtroom on Tuesday, the 14th day of the trial.

According to law enforcement’s theory, Hernandez returned home at around 3:30 a.m. on June 17, 2013 after murdering Lloyd with a .45-caliber Glock pistol in a nearby industrial park. Hernandez then allegedly gave Jenkins instructions to dispose the pistol and an accompanying lockbox, which presumably contained ammunition and other incriminating materials. Jenkins allegedly obliged, placing the pistol and lockbox into a trash bag, which she then placed into a car. Jenkins then drove off and returned to Hernandez’s home some time thereafter. Despite considerable searching by the Massachusetts State Police and North Attleboro Police Department, the trash bag has never been found, and neither has the gun used to kill Lloyd.

Opening statementsDay 10 | Day 11 Day 12 | Day 13

Jenkins, who already faces perjury charges, has been given immunity to testify about what took place after Lloyd’s death. While the terms of the immunity have not been made public, it is expected that if Jenkins admits to destroying evidence, she would not be charged with conspiracy, accessory after the fact, obstruction of justice and other felony charges. Jenkins nonetheless seems unwilling to testify against Hernandez. Although she has noticeably not been in Judge Garsh’s courtroom this week, Jenkins has typically attended the trial to demonstrably support Hernandez. For instance, she’s exchanged giggles with him and she and Hernandez have mouthed, “I love you” at one another. As explained in a legal analysis on, the granting of immunity does not compel Jenkins to testify. It does, however, place her in an unusual legal position where she cannot self-incriminate and thus cannot effectively plead the Fifth Amendment as a means of avoiding having to answer questions under oath. If Jenkins is now called to the stand and refuses to answer questions or otherwise appears uncooperative, she could be held in contempt of court. She would be jailed until the end of the trial.

Without Jenkins’ cooperation, Bristol County (Mass.) District Attorney’s Office is left to calling witnesses who can describe the trash bag and to showing surveillance video of Jenkins struggling to carry it. One such witness is Carla Barbosa, a house cleaner who interacted with Jenkins as she carried the bag with both hands. Through a translator, Barbosa explained on Tuesday that she had never before seen Jenkins or Hernandez take the trash out. Removal of trash from the home, Barbosa explained, was the responsibility of the house cleaners. Barbosa also testified that she had no idea why Jenkins would place the trash bag into the trunk of a car. Shaneah Jenkins, who dated Lloyd and is Shayanna Jenkins’ sister, owned the car in question. Barbosa also described how Shayanna Jenkins appeared later that day. Barbosa recalled that Jenkins seemed upset and nervous. Barbosa’s testimony was consistent with the testimony of Shaneah Jenkins, who also described her sister as anxious.

Even with immunity, no guarantee that Hernandez fiancée testifies

​Barbosa’s testimony clearly advances the prosecution’s case. Jurors will undoubtedly wonder what was in the trash bag, particularly given Barbosa’s recollection that Shayanna Jenkins had never before taken out the trash while in Barbosa’s presence. Also, while the surveillance video was imprecise, it appeared to show the trash bag contained a square-shaped item that could have been a lockbox. The fact that Jenkins struggled to carry the bag also indicated the contents were heavy. A lockbox with firearms and ammunition could run over 50 pounds.

Sounds convincing, but….

Misgivings about what a trash bag might have contained should not be regarded as conclusive evidence. The trash bag, for instance, could have contained a regular box rather than a lockbox, thus explaining how it appeared blocky on the surveillance video. Also, the trash bag might have been heavy because it contained a lot of trash or other items that had nothing to do with Lloyd’s murder. Along those lines, the fact that Jenkins struggled to carry the bag due to its weight does not establish that the bag contained a gun, lockbox or any specific item — it only establishes that Jenkins found the bag to be heavy.

Jenkins behaving suspiciously with the bag, moreover, does not prove she transported the murder weapon. For instance, perhaps instead of transporting a murder weapon, Jenkins transported drugs and drug paraphernalia out of the house knowing that police officers would be searching the home.

Even the idea that Jenkins acted suspiciously is debatable. She knew the home contained surveillance cameras and yet walked directly in the view of cameras, in broad daylight, holding the trash bag. A juror might surmise that if the bag contained the murder weapon, Jenkins would have designed a more discreet means to remove the bag from the house. Testimony about Jenkins seeming upset and anxious might have to do with Jenkins having just learned that her sister’s boyfriend was murdered.

The truth is, guessing what was in the trash bag or why Jenkins behaved as she did is just that: guesswork. Prosecutors will need Jenkins or some other witness who might know what it’s inside the bag to talk. Absent such testimony, the bag probably won’t be compelling to jurors.

Jurors see graphic photos of Odin Lloyd’s injuries and clothing

As part of testimony given by Massachusetts State Trooper Heather Ann Sullivan, jurors observed photographs taken of Lloyd’s body hours after his murder. They also saw his blood soaked clothing. The photos were taken prior to Lloyd’s autopsy, which confirmed the cause of death as multiple gunshot wounds. Lloyd’s mother, Ursula Ward, watched in the courtroom while these photos were shown and held the hand of her son’s girlfriend, Shaneah Jenkins. Several observers noticed Ward crying.

While the photographs confirmed what jurors already knew, they nonetheless serve as a powerful reminder that the trial is about the senseless and brutal murder of a young man. Jurors surely know who Ward and Shaneah Jenkins are, as both testified earlier in the trial. Watching Ward and Jenkins grieve reminds jurors that justice for Lloyd’s murder is essential.

Hernandez’s attorneys continue to undermine the shell casing wrapped in bubble gum

One of the weakest aspects of the prosecution’s case against Hernandez is how law enforcement retrieved a shell casing from a dumpster. Recall that Keelia Smyth, an Enterprise Rent-a-Car manager who cleaned a Nissan Altima rented by Hernandez (and allegedly used to transport Lloyd to his execution), found a shell casing and bubble gum in the car and then tossed those and other items into a nearby dumpster. Law enforcement then conducted a controversial search of the dumpster, where the shell casing — by that point adhering to bubble gum — was placed in the back of a police pick up truck that had not been sterilized. Other pieces of trash from the dumpster were also removed. At least initially, police bags were not used to store the evidence and it took between 20 and 30 minutes for Crime Scene Services (an agency responsible for crime scene documentation) to arrive. Hernandez’s attorneys have consistently implied that any DNA evidence derived from this evidence has been corrupted by an allegedly rushed and amateurish retrieval of evidence.

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

Hernandez attorney Charles Rankin on Tuesday continued to raise questions about the shell casing. This occurred while North Attleboro Sargent John “Jack” Moran was on the witness stand. Moran, who along with seven or either other state and local police officers searched the dumpster, did not recall any discussion among the officers that they wait for crime scene services to arrive. “The sooner the better,” Moran acknowledged in response to Rankin aggressively asking, “Crime scene services would come along whenever?” While Moran’s testimony was consistent with testimony by other law enforcement witnesses, it reminded jurors that questionable steps were taken in the retrieval and storage in crucial pieces of evidence.

Hernandez attorney James Sultan similarly took issue on Tuesday with methodologies employed by law enforcement in studying evidence. This was detectable when Sultan cross-examined Daniel Michael Pratt, a crime scene analyst for the Massachusetts State Police. During direct testimony, Pratt detailed how he took four sticky stubs to test for blood and he described the results. But on cross-examination Sultan pressed Pratt to acknowledge that the stubs were in fact not a screening test for blood and that many other substances, including saliva and tomato juice, could have triggered a positive result. Sultan also spent several minutes asking Pratt about him failing one of several competency tests in 2012. While the relevancy of the test to Pratt’s work on the Hernandez case was not established, it did not help Pratt. Sultan’s questioning seemed to offset much of Pratt’s earlier testimony.

The man who would be Aaron Hernandez’s personal trainer takes the stand

While it’s theoretically possible that Hernandez could testify in his own defense, the odds of him doing so are extremely low. Jurors, however, have occasionally heard others describe Hernandez and his statements. Today jurors read text messages sent by Hernandez hours before and after Lloyd’s death.

Hernandez’s text messages were directed to Brian McDonough, a trainer and owner of Edge Performance Systems in Foxboro (Mass.). Hernandez had called and left a voicemail for McDonough on Sunday, June 16, 2013 in which Hernandez told McDonough that he was looking forward to McDonough training him. While the two had met before, they had not yet worked together. Hernandez, according to McDonough, was particularly interested in improving his agility prior to the start of training camp. McDonough then sent Hernandez a text message saying he wanted to set up a schedule and “get working tomorrow.” Hernandez responded and they agreed to meet up on Monday, June 17, 2013 at around 1:30 pm. To give this time context, Lloyd was reportedly murdered at around 3:30 am on the 17th.

Hernandez never showed up to Edge Performance Systems on Monday. At 8:35 pm, McDonough texted Hernandez wondering why he was missing. “I imagine the Pats kept you late today,” McDonough surmised, “I will start you up tomorrow bud.” Hernandez responded to McDonough almost instantly. The time of Hernandez’s response was 8:38 pm — about two hours before Hernandez would have his first of many conversations with law enforcement. “Lost phone jus [sic] got new one,” Hernandez explained, “and didn’t no how to get hold of u….I’m sorry and won’t leave u hang in again I’ll be there tomorrow 145 I am sorry see you tomorrow.” Hernandez texted McDonough again at 8:50 pm. “I’m excited,” Hernandez wrote, “and gotta get right fast cuz I’m already behind so we gotta get after it!”

Hernandez didn’t show up for training on Tuesday, June 18, 2013, either. He did, however, give McDonough a heads up. Hernandez texted McDonough at 11:53 a.m., noting, “I will not be there today either [something] came up but ill just call u when I’m back around which should be soon but ill b in touch!” Hernandez and McDonough would never meet. The former New England Patriots star would be arrested for murder six days later. He’s been in jail ever since.

Hernandez’s text messages help the prosecution establish a timeline, a crucial step in the prosecution. They also provide a window into Hernandez’s thinking hours before and after Lloyd’s murder. If Hernandez had murdered Lloyd or contributed to the murder, he seemed quite able to focus on other things. But if Hernandez is innocent, he went about living his life.

Furthering that point, during the cross-examination of McDonough by Hernandez attorney Michael Fee, McDonough acknowledged that Hernandez was polite in his texts. “He’s a gentleman,” McDonough reflected.

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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