Saturday February 28th, 2015

Do text messages sent by Aaron Hernandez to co-defendant Ernest Wallace hours and days before Odin Lloyd’s murder establish a plan to kill Lloyd? Do phone calls made by Hernandez to Wallace hours after Lloyd’s death reveal two conspirators trying to get their stories straight? Or do the text messages and phone calls have absolutely nothing to do with Lloyd’s murder?

Deciphering the meaning of ambiguous text messages and interpreting the significance of frequent phone calls will be up to jurors, who listened to three and half hours of testimony on Friday, the 17th day of the trial. Jurors heard from Ricardo Leal, a record-keeper for Sprint Telecommunications Corporation. Bristol County (Mass.) prosecutor Patrick Bomberg questioned Leal so that Leal could confirm the authenticity of texts and calls associated with Hernandez. Jurors were shown numerous screenshots of texts and phone records.

Hernandez leaves an electronic trail that may trouble jurors

On the surface, some of Hernandez’s texts to Wallace seem highly suspicious. This is particularly true of his texts several hours before the murder. Hernandez texted messages like, “Hurry your ass up, n----,” “Get your ass up here, if I don’t answer call [Shayanna Jenkins]” and other messages that signaled a sense of urgency and implied that something important was about to happen.

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Messages sent by Hernandez to Wallace days earlier might also concern jurors. In different texts, Hernandez writes, “This s--- is crazy man,” “I need those f----- keys jua bring dem back man I need them" and “U grab everything out of the car” including “the clip.” Prosecutors believe that Hernandez’s reference to a “clip” is shorthand for cartridge clip. This is a potentially significant point given that Hernandez faces five firearm charges in addition to the murder charge.

Also worrisome for Hernandez’s attorneys is that Hernandez’s texts make it sound as if he was in charge. Hernandez repeatedly texts Wallace with statements that resemble orders, such as “Hurry up” and “U grab.” Wallace, moreover, seems to acknowledge that Hernandez was calling the shots (no pun intended). For instance, in response to one of Hernandez’s texts, Wallace texts back, “Yes sir.” Wallace also texts Hernandez with assurances that certain steps had been put in place, such as “I got the keys” and specific items had been placed “in the car.” Prosecutors want jurors to perceive Hernandez as the mastermind of the plan to kill Lloyd, with Wallace and fellow co-defendant Carlos Ortiz taking his orders. If Hernandez is viewed as the “brains” behind the operation, jurors will be more likely to reason Hernandez acted with premeditation and is thus guilty of first-degree murder.

Jurors were likely also alarmed by Leal’s discussion of phone records. Jurors learned that Hernandez placed repeated calls to Wallace, including after Hernandez spoke with North Attleboro Police officers who were investigating Lloyd’s death. Jurors, moreover, heard testimony about five calls made by Wallace to Lloyd one to two hours before Lloyd’s death. Granted, there is no record of what might have been said in any of these calls. Nonetheless these and other calls help the prosecution place Hernandez with Lloyd, a key point for the prosecution’s timeline. Prosecutors are also poised to use these records when they introduce cell phone triangulation evidence. In doing so, prosecutors will attempt to link Hernandez to the crime scene through signals sent by his phone to nearby cell towers.

Defense: these texts and calls don't prove anything

Without knowing the context of conversations and other situational factors, Hernandez’s text messages are difficult if not impossible to reliably interpret. Take Hernandez’s apparent instruction to Wallace that he “hurry up.” Was Hernandez telling Wallace to rush because they had to keep on a tight schedule to murder Lloyd ... or was Hernandez telling Wallace to hurry up because Hernandez wanted to get drinks, smoke marijuana or partake in some other activity that had nothing to do with murder? Notably, some of Hernandez’s texts to Wallace occurred while he was at, or going to, the State Street Café in Providence (RI). Previous testimony in the trial indicated that Hernandez talked about family and offered a toast for Father’s Day while at the State Street Café.

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Also consider texts from Hernandez to Wallace that arguably depict a man who wanted to spend a few hours away from his fiancée or baby daughter, Aveille. Hernandez, for instance, texted Wallace, “All yall trying to step tonight my girl getting on my nerves…ain't trying to b stuck with her all day and night." It’s unclear whether Hernandez was referring to Jenkins or Avielle, but either way jurors might surmise that Hernandez merely wanted to see Wallace to hang out.

Even take the aforementioned reference to “clip” when Hernandez texted Wallace with the instruction, “U grab everything out of the car” including “the clip.” “Clip” certainly could have referred to a cartridge clip. But “clip” has other meanings that are unrelated to guns, including when a person mixes tobacco and marijuana into a joint. Given that Hernandez reportedly smoked considerable amounts of marijuana, it’s conceivable that he was referring to a marijuana-related product rather than a firearm.

Multiple phone calls by Hernandez to Wallace also do not establish that Hernandez was involved in Lloyd’s murder. The calls constitute circumstantial evidence that will likely raise suspicions for jurors, especially since other circumstantial evidence places Hernandez with Wallace, Ortiz and Lloyd. But frequency of calls does not inform jurors whether Hernandez killed Lloyd or contributed to Lloyd’s murder in a significant way. Nor does it indicate whether Hernandez might have called repeatedly because he did not want to leave a voicemail.

It will be up to jurors to decide how to interpret texts, phone records and other forms of electronic evidence. In a case without a murder weapon or an eyewitness to the crime, inferences made by jurors about electronic evidence could prove decisive.

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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