Thursday February 26th, 2015

It’s been frequently noted that the case against Aaron Hernandez for the murder of Odin Lloyd is based on circumstantial evidence rather than direct evidence. No murder weapon has been found and no cooperating eyewitness exists. The absence of direct evidence is clearly a positive for Hernandez’s chances to avoid a conviction. But as demonstrated in Massachusetts Superior Court Judge Susan Garsh’s courtroom on Wednesday—the 15th day of the trial—circumstantial evidence can sometimes prove powerful and damning. Jurors, as explained below, learned that shell casings found at the murder scene and a shell casing found in a Nissan Altima rented by Hernandez appear to have been fired by the same gun.

Opening statements | Day 11 Day 12 | Day 13 | Day 14

The crucial role of circumstantial evidence in the Hernandez trial

Jurors in the Hernandez trial have already heard a great deal of testimony about circumstantial evidence and will hear plenty more in the days ahead. Circumstantial evidence enables jurors to infer that Hernandez played a culpable role in the death of Odin Lloyd, but does not directly confirm that Hernandez played such a role. Circumstantial evidence is often less convincing than direct evidence because it requires jurors to make a logical deduction—namely that because one fact exists, a different fact probably exists as well. This deduction is not required when jurors are provided with an eyewitness account of an event.

Consider the following as an illustration: if a witness told jurors that he or she saw Hernandez shoot Lloyd, that testimony would likely be more persuasive than jurors hearing that Hernandez was with Lloyd shortly before Lloyd’s murder or that Hernandez lived close to the location of Lloyd’s murder. The reason is because jurors would only need to believe the witness to believe that Hernandez shot Lloyd, whereas jurors would have to extrapolate the circumstantial evidence about Hernandez’s proximity and place of residence to reach the same conclusion. While believable eyewitness testimony can be conclusive of guilt, circumstantial evidence only points in the direction of guilt.

Aggressive cross-examination of the ballistics evidence 

Jurors may be more willing to make a damning inference about Hernandez’s guilt after hearing the testimony of Massachusetts State Police sergeant Stephen Walsh on Wednesday. Walsh testified that five shell casings found at the crime scene and a shell casing found in the Altima were likely fired by the same gun, a .45-caliber Glock pistol. The intended inference was obvious: a commonality of shell casings seems to place Hernandez at the location of Lloyd’s murder and connects him to bullets used to kill Lloyd.

Walsh, who was on the witness stand for three hours, methodically explained to Bristol County (Mass.) prosecutor Patrick Bomberg how he analyzed shell casings and other evidence. He explained how he applied a rigorous physical examination and placed ballistics evidence under a compound microscope. He also noted that Glock manufactures its gun barrels in ways unlike most other firearm manufacturers. Glock barrels, according to Walsh, are smoother than those found in other guns and bullets fired by Glock pistols tend to have straighter and more accurate trajectories. The ballistics evidence recovered in the investigation into Lloyd’s murder, Walsh emphasized, is consistent with bullets fired by a Glock pistol.

Even with immunity, no guarantee that Hernandez fiancée testifies

Throughout his testimony, Walsh cautioned that his conclusions lack absolute certainty. This is especially the case, Walsh explained, because the murder weapon used to kill Lloyd has not been found. As a result, ballistics evidence can’t be linked to a specific gun. But Walsh nonetheless stressed that he possesses a “reasonable degree of ballistic certainty” that the five casings at the industrial park and the one retrieved by police from a dumpster next to Enterprise Rent-a-Car were fired by “the same unknown weapon.” That weapon, Walsh repeatedly told the court, was most likely a .45-caliber Glock pistol.

Much of Walsh’s testimony concerned technical aspects of guns and bullets. He spoke at length about cartridge cases, firing pin aperture shear, base diameter, lands and grooves in the barrels of guns and so on. For jurors unfamiliar with firearms and the language of weaponry, much of Walsh’s testimony tested their ability to closely pay attention and to grasp new and occasionally convoluted material. Bomberg was clearly aware of this challenge and attempted to break Walsh’s testimony into manageable segments. While this improved the clarity of Walsh’s testimony, it also meant that Walsh spoke for a long time. Jurors went for two hours without a break while hearing mostly technical testimony.

Hernandez’s defense tries to undermine the ballistics evidence

The last hour of Walsh’s testimony entailed answering questions posed by Hernandez attorney James Sultan. Many of Sultan’s questions were hostile and they attempted to portray Walsh as biased and unconvincing. To his credit, Walsh (unlike some other law enforcement witnesses in this trial) frequently forced Sultan to rephrase his questions so that they were worded in a more technical light. For instance, when Sultan pressed Walsh on “polygonal rifling,” Walsh pressed back, suggesting that Sultan didn’t understand what the term meant. This style of exchange continued when Sultan cited general rifling characteristics formulated by the F.B.I. to suggest that Walsh’s comparisons of cartridges were inconsistent with F.B.I. recommendations. Walsh tried to rebut Sultan and, after the two verbally sparred for several minutes, they seemed to agree to disagree. To the extent jurors regarded the exchange as a draw, it would probably cut in favor of the prosecution given the effectiveness of Walsh’s earlier testimony.

Sultan enjoyed more success raising questions about whether Walsh undertook enough steps to be sure of his conclusions. “Did it occur to you to contact Glock,” Sultan wondered aloud, about whether a different kind of Glock gun might have been involved. Along those lines, Sultan highlighted how identifiable markings are not readily found in Glock barrels and that raises questions about whether a specific Glock gun can be linked to ballistics evidence. Sultan also referenced gun databases that might have been useful to Walsh and Sultan made sure jurors heard that Walsh had never purchased a Glock gun.

At another point, Sultan suggested that Walsh’s testing methods were directed to reach a preconceived conclusion about evidence found at the crime scene and the dumpster. To corroborate this criticism, Sultan noted that Walsh’s written report omitted discussion of bullet striations, which are imprints sustained by a bullet’s surface as the bullet passes through a gun. Sultan contended that evidence about the striations of the shell casings could indicate different guns fired the casings. “Were you trying to hide that information, sir?” Sultan forcefully asked Walsh, who firmly responded with “no.” Walsh later added that photographs of the striations were, in fact, included in his report.

Hernandez described as friendly and sociable hours before Lloyd’s murder

One other witness testified on Wednesday. Her name is Vanessa Sanchez, who along with her boyfriend, Eduardo Sandoval, and two other persons (Hernandez’s barber Robby Olivares and his girlfriend, Neredia Alicea) had drinks with Aaron Hernandez and Shayanna Jenkins at the South Street Café in Providence, R.I., on the evening of Sunday, June 16, 2013. Sanchez estimated that she and Sandoval spent about an hour with Hernandez, and it was around 10 p.m. or 11 p.m. Prosecutors called Sanchez to the stand so that she could identify a photograph taken of Hernandez at the restaurant. In the photograph, Hernandez is wearing a white hooded shirt and dark pants, most likely jeans. It is the same outfit that prosecutors believe Hernandez wore when he allegedly murdered Lloyd about five hours later (roughly 3:25 a.m. on Monday, June 17, 2013).

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

While Sanchez was a witness for the prosecution, Hernandez attorney Michael Fee adroitly used cross-examination to turn Sanchez into a witness who might significantly help Hernandez. Sanchez explained that Hernandez was gregarious and sociable that evening. Hernandez, according to Sanchez, raised a toast for Father’s Day, which was celebrated on that day. Hernandez, Sanchez revealed, spoke proudly about his and Jenkins’ daughter, Avielle Janelle Hernandez. Sanchez also mentioned that Hernandez picked up the tab and bought shots for the group, and that Hernandez explained that he and Jenkins had to leave the restaurant so that they could get home to take care of Avielle. Meanwhile, Fee directed Sanchez to note that she, Hernandez and the four others were seated next to other customers and not in a private room, and that at no point Hernandez mentioned Ernest Wallace or others connected to Lloyd’s murder.

Hernandez coming across as a friendly and generous person obviously does not establish his innocence. But for jurors who had just heard three hours of technical testimony about ballistics evidence, hearing that Hernandez behaved normally and as a family-friendly dad could leave a lasting impression. After all, Hernandez at the restaurant seemed anything but a guy who was planning to carry out a brutal execution five hours later. Could Hernandez be a sociopath, who can seem charming one minute and sadistic the next? Sure, but that’s not easy to establish and the universe of admissible evidence in this trial may not allow for it.

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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