Aaron Hernandez trial: Making sense of each side's strategy
3:42 | NFL
Aaron Hernandez trial: Making sense of each side's strategy
Tuesday March 3rd, 2015

In a case built on convincing jurors of a timeline where Aaron Hernandez is with Odin Lloyd at the moment Lloyd dies, Bristol County (Mass.) prosecutors on Monday used the testimony of Lloyd’s sister, Shaquilla Thibou, to help place Lloyd with Hernandez an hour before Lloyd’s death. Thibou, who lived in the same Boston home as Lloyd, described watching her brother get into a silver sedan about 2:30 a.m. on June 17, 2013. It was the last time she would ever see her brother alive.

Opening statementsDay 14 | Day 15 | Day 16 | Day 17 

Thibou provided a striking and specific memory of what she observed that night. Thibou explained she was sitting in a car with her boyfriend parked across the street from her house while she watched Lloyd. She described how her brother approached the car, and also how he entered it. Lloyd, Thibou noted, first tried to get into the front passenger seat but couldn’t and then entered the rear passenger seat instead. Bristol County prosecutors are surely pleased that Thibou could recollect in detail what she observed. It helps to create a believable narrative for jurors to visualize in their minds.

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​Thibou’s testimony also corroborated the surveillance video jurors watched on Day 12 of the trial. In the video, Lloyd is seen leaving his house and entering a silver sedan. The vehicle is thought to be a silver Nissan Altima Hernandez rented from Enterprise Rent-a-Car. Jurors are now likely more convinced that Lloyd and Hernandez were together when Lloyd died. But to be clear, proving Hernandez was with Lloyd when he died would not prove that Hernandez killed Lloyd. Two co-defendants, Ernest Wallace and Carlos Ortiz, were also allegedly with Lloyd when he died.

Thibou also testified about receiving text messages from her brother before his death. As previously explained on, Massachusetts Superior Court Judge Susan Garsh significantly limited the scope of questioning about these texts. Lloyd’s texts were hearsay statements because they were out-of-court remarks made by an unavailable person. Unfortunately for Bristol County prosecutors, Massachusetts has not adopted the “present sense impression exception” to hearsay where an otherwise inadmissible hearsay statement can be admitted because it was made when a person registered an impression. Consequently, jurors were barred from learning that Lloyd texted his sister he was “with NFL,” minutes before he died. “NFL” is widely suspected as referring to Hernandez. Jurors only learned that texts were sent, which helps prosecutors establish a timeline but does not link Lloyd’s texts to Hernandez.

More evidence Lloyd’s family did not know Hernandez

Perhaps the most significant portion of Thibou’s testimony occurred when she revealed that she knew nothing about Hernandez. She said she had never met Hernandez or spoken with him. Thibou’s testimony about her unfamiliarity with Hernandez was similar to that of her mother, Ursula Ward, from earlier in the trial. Ward, like her daughter, testified that while she knew her son’s friends, she had never heard about Hernandez.

The testimony of Lloyd’s sister and mother undermines a key defense rationale for Hernandez’s innocence. Hernandez’s attorneys want jurors to believe that Hernandez and Lloyd were very close—Lloyd was Hernandez’s so-called “blunt master” in supplying Hernandez with marijuana—and thus Hernandez would never hurt him. Jurors, however, may be skeptical about the closeness in the relationship between Hernandez and Lloyd when Lloyd’s sister and mother, both of whom lived with Lloyd, portrayed Hernandez as a complete stranger. This seems particularly noteworthy given that Hernandez is linked to Lloyd through Hernandez’s fiancée, Shayanna Jenkins, the sister of Lloyd’s girlfriend, Shaneah Jenkins.

Jurors hear cell phone triangulation evidence

While Thibou provided vivid testimony for jurors, most of Monday, the 18th day of the trial, was devoted to technical testimony from Sprint Telecommunications Corporation employees. Through Sprint testimony, jurors learned that Hernandez placed numerous calls to Wallace in the aftermath of Lloyd’s death. The testimony provides circumstantial evidence—jurors may find it suspicious that Hernandez repeatedly called Wallace, especially after Hernandez met with police officers—but given that there is no information about what was said over the calls, jurors may also be wary about making unfounded guesses about what the calls signify. 

Jurors also heard extensive testimony about how cell phones “talk” to nearby cell towers. This testimony came from Justin Darrow, a Sprint radio frequency engineer who spoke at length about how cell phone communication involves the establishment of a “talk channel.” He also described how a cell phone tries to minimize its power and minimize possible interference, thus suggesting that cell phones act in predicable and reliable ways for purposes of evidence gathering.  

Darrow explained how he prepared for his testimony by visiting 47 locations and reviewing 131 calls. This background was crucial for prosecutors to convince jurors that they can be sure of Hernandez’s location on the night of Lloyd's murder through what’s known as “cell phone triangulation.”  This is a process whereby a cell phone’s location at a particular time can be ascertained though how it “talks” to nearby cell towers. Darrow opined that communications made and received by Hernandez’s phone were consistent with the geographical route prosecutors contend Hernandez picked up Lloyd in Boston and drove him south, on Route 95, to North Attleboro.

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During cross-examination and to some extent even during direct examination, Darrow acknowledged various limitations to his analysis and the ability to approximate the location of a cell phone user through cell phone triangulation. He conceded, for instance, that a cell phone could be still in one place but calls from it talk to different towers depending on which tower provides the strongest signal. This “switching” raises uncertainty about whether a cell phone’s location is necessarily detectable by observing the nearest cell tower. Along those lines, Darrow admitted that cell phone pings do not provide a precise location, but instead a more generalized area. If jurors were expecting that Hernandez’s exact location could be found through his cell phone, they likely came away from Darrow’s testimony with some doubts. Still, Darrow’s testimony generally supported the prosecution’s theory of Hernandez’s whereabouts on the night of Lloyd’s murder.

Perhaps the most memorable portion of Darrow’s testimony occurred unintentionally. While describing technical points about phones talking to cell towers, Darrow paused and caught his breath, and opined that he was talking too quickly. He then nervously apologized, uttering “Sorry, this is a big case.” Judge Garsh immediately commanded “strike that” remark from the testimony. While Darrow was understandably anxious, Judge Garsh does not want jurors to treat the case differently merely because it is a “big case” involving a celebrity. She will thus aggressively combat any testimony—including inadvertent utterances—that might compromise Hernandez’s right to a fair trial.

Jurors will see but not touch a .45 caliber Glock pistol

Judge Garsh also ruled on Monday that prosecutors can show jurors the type of gun allegedly used to kill Lloyd, but jurors will be barred from touching the gun. The actual gun used in Lloyd’s murder has never been found.

[]Hernandez’s attorneys unsuccessfully attempted to persuade Judge Garsh of the risk of showing this gun. Jurors, Judge Garsh was warned, will wrongly conclude it is an accepted fact that a .45 caliber Glock pistol was used to kill Lloyd when there remains debate. Recall that Hernandez’s attorneys spent considerable time on Day 15 trying to undermine ballistics evidence that purportedly connects Lloyd’s death to shell casings found at the murder scene and a shell casing found by an Enterprise employee in the Nissan Altima rented by Hernandez. The same .45 caliber Glock pistol, prosecutors contend, fired these shell casings.

Judge Garsh’s decision is a setback for Hernandez’s attorneys. Their goal is to convince jurors of reasonable doubt in the charges against Hernandez. One method of establishing reasonable doubt is by convincing jurors that the type of weapon used to kill Lloyd remains a question mark. While jurors seeing the .45 caliber Glock does not prove it was the type of gun used to kill Lloyd, it is suggestive of that point and it is a point that favors the prosecution.

Prosecutors want jurors to hear about Hernandez allegedly shooting man in Florida

Also on Monday prosecutors filed a motion asking Judge Garsh to reconsider her pretrial ruling that jurors are barred from hearing about Hernandez allegedly shooting Alexander Bradley in the eye two years ago outside a Miami strip club. The allegation is contained in a lawsuit filed by Bradley, who is sometimes described as a Hernandez friend, against Hernandez. No criminal charges were ever brought in the matter. Judge Garsh’s pretrial ruling was expected since evidence of “prior bad acts” is generally inadmissible in a trial on grounds that such acts are irrelevant to the specific charges faced by the defendant. Prior bad acts can also be prejudicial to a defendant, since if jurors hear that the defendant had engaged in wrongful conduct in the past, they may be more inclined to find him guilty.

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The inadmissibility of prior bad acts and other character evidence is lost, however, when the defendant voluntarily introduces evidences about his character. Generally, once a defendant makes his character an issue in a trial—such as by defense attorneys arguing the defendant is a good person—the prosecution can then introduce character evidence that the defendant is not a good person.

Prosecutors contend that since Hernandez attorney Michael Fee in his opening statement suggested that Hernandez would not shoot Lloyd since Lloyd was a friend, Fee opened the door for the prosecution to introduce evidence that Hernandez would, in fact, shoot a friend. That evidence is Hernandez allegedly shooting Bradley.

The odds are against Judge Garsh changing her mind. First, evidence of Hernandez shooting Bradley could be highly prejudicial. After all, if jurors now hear that Hernandez is accused of shooting a friend in the face after being told Hernandez would never hurt a friend, the odds of a conviction would rise. And should jurors convict Hernandez of murdering Lloyd, Hernandez’s attorneys would surely raise Garsh admitting evidence of Hernandez shooting Bradley as grounds for an appeal. 

Second, timing matters. We are now in the middle of the trial, long after Hernandez's attorneys have introduced their legal theories to jurors. To require Hernandez's attorneys to change their game plan in midstream could be viewed as unfair. For that reason, even if Judge Garsh sympathizes with the prosecutors' argument about the Bradley shooting, she might tell them they should have raised this issue earlier in the trial.

Third, evidence of Hernandez shooting Bradley has not yet been confirmed as true. Bradley has sued Hernandez, but the lawsuit has not yet proven successful and, as noted above, Hernandez was not charged with a crime. It is also not clear that Hernandez and Bradley were friends or had a relationship similar to the one referenced by Fee when describing Hernandez and Lloyd.

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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