Friday February 27th, 2015

Does a video of Aaron Hernandez pumping gas into a rental car an hour before Odin Lloyd’s murder help Bristol County (Mass.) prosecutors convict the former New England Patriots star? Jurors on Thursday watched video of Hernandez at the Blue Hill Express Service Station in Canton (Mass.) at around 2 am on Monday, June 17, 2013. Dr. Assad Sayh, the owner of the gas station, authenticated the video in his brief testimony on the 16th day of the trial.

The gas station video was remarkably clear. It appeared to display a noticeably higher resolution and crisper colors than the surveillance video of Shayanna Jenkins carrying a mysterious trash bag out of Hernandez’s home and the surveillance video of Odin Lloyd leaving his Boston house. The gas station video showed a silver Nissan Altima pull up right beside a gas pump. After the car stopped, Hernandez exited the driver’s seat while wearing a white hooded shirt and jeans—the very same outfit he wore earlier in the evening at the South Street Café in Providence (R.I.). Hernandez is then shown pumping gas and also behaving in a playful way, dancing and mouthing lyrics to music. A different camera later shows Hernandez waving his fists as he enters the gas station, where he pays for gas, bubble gum and a cigar. Hernandez’s behavior as captured by the video is consistent with, although not conclusive of, someone who was high on drugs or drunk, or both.

Opening statementsDay 12 | Day 13 | Day 14 | Day 15

A man thought to be co-defendant Carlos Ortiz also appears in the video and in a potentially important way. At one point he exits the car from the backseat with a white towel draped around his neck. The towel is noticeable since a white towel was found near Lloyd’s body. Ortiz stumbles a bit and interacts lightheartedly with Hernandez.

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The gas station video is a key piece of evidence for the prosecution, as it helps establish its proposed timeline of events. In a case built on circumstantial evidence, prosecutors need to convince jurors that the events occurred exactly as prosecutors allege. According to the prosecution’s timeline, Hernandez, along with passengers Ortiz and co-defendant Ernest Wallace, would then drive off from the gas station to pick up Lloyd at his home.

Possible silver lining for defense in the gas station video

While the gas station video clearly helps to establish the prosecutor’s timeline, it may nonetheless offer some benefit to Hernandez’s attorneys.

As noted above, Hernandez does not seem to be taking himself seriously in the video and may be high on drugs. Remember, prosecutors contend that Hernandez would carry out a planned execution of Lloyd only an hour later. Jurors might wonder whether Hernandez’s seemingly carefree disposition at the gas station doesn’t sound right for someone who designed and would soon carry out a murder plot. As explained in the analysis of Day 15 of the trial, jurors might feel similarly about Hernandez after hearing Vanessa Sanchez’s testimony. Sanchez, along with four others, had drinks with Hernandez about four hours before Lloyd’s murder. Hernandez spoke to Sanchez about his daughter and at one point proposed a toast for Father’s Day. His behavior seemed a little odd for someone who’s been accused of executing a man in a remote industrial park later that evening.

The possibility that Hernandez was high on drugs is also meaningful for the defense. While being high would not constitute a complete defense to the murder charge, it might make it harder for prosecutors to contend that Hernandez had the requisite mental state to plan and carry out a murder. Along those lines, jurors might be inclined to find Hernandez guilty of a lower degree of murder, such as second-degree murder or voluntary manslaughter, if they conclude that he was sufficiently involved in Lloyd’s killing but nonetheless impaired by drug use.

Witness: Hernandez smokes pot outside South Street Café

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While Sanchez’s testimony on Tuesday painted Hernandez’s behavior at the South Street Café in a positive light, Kelly Rose Belanger’s testimony on Wednesday offered a slightly more critical view. Belanger was the bar manager while Hernandez and friends dined at South Street Café. She noted that Hernandez and another man went outside the restaurant to smoke marijuana, and the odor was so potent that it could be smelled inside the restaurant. Belanger asked Hernandez to stop smoking and he did.

Bristol County prosecutor William McCauley also made sure jurors saw the bar tab Hernandez left behind. Hernandez paid the entire tab for the group of six, and the tab revealed plenty of alcoholic drinking occurred. In addition to buying 10 Sex on the Beach mixed drinks for the group, Hernandez bought Bud Lights, Grey Goose Vodka and Hennessey Cognac drinks. While Hernandez paying for his group suggests he is generous, he left behind a fairly modest tip ($30 for a $232 tab, about a 12 percent tip).

On cross examination, Hernandez attorney Michael Fee asked Belanger if Hernandez was polite when she asked if he could stop smoking marijuana and she confirmed he was. Fee also made sure jurors learned that Hernandez had no server to tip since it was a self-serve bar.

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

While smoking marijuana and generosity in tipping are obviously unrelated to whether Hernandez planned and carried out Lloyd’s murder, prosecutors and defense attorneys are extremely sensitive to how jurors perceive the character of the defendant. In a criminal trial, character evidence is generally inadmissible unless the defendant chooses to make his character an issue. Nonetheless, jurors might intuit a defendant’s character from how the defendant interacts with other people. Clarifying that Hernandez was not “cheap” with his tip may seem trivial, but to his attorneys every piece of information presented to jurors matters.

Fingerprints of Hernandez and aerial photos of Hernandez’s home

Several law enforcement witnesses testified on Thursday about fingerprint and footwear impressions. Massachusetts State Police Trooper Joseph Silvia, Jr., discussed taking Hernandez’s fingerprints—testimony that led Massachusetts Superior Court Judge Susan Garsh to remind jurors that they can’t “draw an inference of guilt” by the “mere fact” that Hernandez’s fingerprints were collected by police officers. This was an important point by Judge Garsh because if Hernandez is convicted, his attorneys will review every moment in the trial to find possible sources of appeal. They will look to see if Judge Garsh did not guarantee his right to a fair trial.

During cross examination, Hernandez attorney James Sultan asked Silvia about photos he took of Hernandez’s North Attleboro (Mass.) home from a helicopter on June 20, 2013—three days after Lloyd’s body turned up. Upon direction by Sultan, Silvia acknowledged that the photos revealed many media trucks parked outside Hernandez’s home.

Hernandez’s attorneys want jurors to conclude that law enforcement decided early on to blame Hernandez for Lloyd’s murder and part of their alleged strategy was to leak information about Hernandez to media. Photographic evidence of the media frenzy outside of Hernandez’s home could help the defense advance its theory that Hernandez is a scapegoat.

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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