Thursday March 5th, 2015

Bristol County (Mass.) prosecutors were dealt a significant but expected setback on Wednesday when Superior Court Judge Susan Garsh ruled that evidence of Aaron Hernandez shooting Alexander Bradley in the face will remain inadmissible in the Odin Lloyd murder trial. This ruling denies the prosecution of evidence it hoped would reveal to jurors a more violent and temperamental side of Hernandez than has generally been detectable in the trial.

As explained in a previous SI.com legal analysis, the odds heavily favored Judge Garsh denying the evidence. In law, “prior bad acts” are usually inadmissible for two overarching reasons: These acts are irrelevant to the charges contemplated in the trial, and they might unfairly prejudice jurors against the defendant. Evidence of prior bad acts can become admissible, however, when the defendant voluntarily makes his character an issue in the trial. Prosecutors failed to persuade Judge Garsh that when Hernandez attorney Michael Fee suggested Hernandez would not shoot Odin Lloyd because they were friends, Fee opened the door for the introduction of evidence suggesting Hernandez shot another friend, Bradley.

TRIAL COVERAGE: Opening statements | Day 15 | Day 16 | Day 18 | Day 19

At least five reasons justify Judge Garsh’s rejection of the prosecution’s theory that Fee inadvertently made Hernandez’s character an issue. First, evidence of Hernandez shooting Bradley would clearly run the risk of prejudicing jurors against Hernandez. This is problematic since judges generally disallow evidence that is more prejudicial than probative. Along those lines, if jurors learned that Hernandez may have shot one friend (Bradley), they could easily surmise that Hernandez must have been willing to shoot another friend (Lloyd), even if there is no connection whatsoever between the shootings.

Second, the trial is already in midstream, with 20 days of testimony in the books. Allowing the prosecution to now introduce a highly suggestive piece of evidence that Judge Garsh deemed inadmissible before the trial would place Hernandez and his attorneys at a significant disadvantage. Third, Hernandez has only been accused, not convicted​, of shooting Bradley, and the accusation was made in a civil claim rather than a criminal indictment. No criminal charges were filed against Hernandez after Bradley was shot outside a Miami strip club two years ago, a point that suggests the evidence is inconclusive. The only “proof” that Hernandez shot Bradley (whose facial and eye injuries confirm he was shot) comes through allegations contained in Bradley’s ongoing lawsuit against Hernandez. Fourth, it is not clear that Hernandez and Bradley were friends or possessed the kind of relationship Hernandez had with Lloyd, whom Hernandez’s attorneys say was their client’s “blunt master.” Fifth, trial judges have good reason to be cautious in admitting controversial evidence: If the defendant is convicted, the decision to admit the evidence will surely be raised in an appeal.

Hernandez attorneys continue to attack fingerprint and DNA evidence linking Hernandez to the crime

Meanwhile, jurors on Wednesday heard hours of scientific testimony from government witnesses who were subjected to tough cross-examination by Hernandez’s attorneys. Hernandez’s attorneys employed two main legal theories to attempt to undermine fingerprint and DNA evidence: 1) forensic evidence implicating Hernandez resulted from law enforcement’s motivation to pin the blame on the former New England Patriots star; and 2) much of the forensic evidence is either incomplete or corrupted.

[daily_cut.nfl]Jurors first heard from Massachusetts state trooper David Mackin, who on Tuesday testified that the Nissan Altima rented by Hernandez and allegedly used to drive Lloyd to the place of his death contained the fingerprints of Hernandez, co-defendant Ernest Wallace, co-defendant Carlos Ortiz and Lloyd. On Wednesday, Hernandez attorney James Sultan aggressively challenged Mackin to explain the potential disturbance to DNA caused by Mackin separating bubble gum from a shell casing. The shell casing covered with gum has been at issue throughout the trial. An Enterprise employee had found the shell casing, along with the gum and other items, in the Altima rented by Hernandez. She then crumpled up the items and tossed them into a nearby dumpster. By the time officers had retrieved the shell casing, it was covered in gum that allegedly contains Hernandez’s DNA. Sultan implied that separating the gum from the shell casing before DNA testing might have corrupted the evidence and rendered it unreliable.

During this testimony Mackin also acknowledged that Lloyd’s fingerprints were found in another car, a Chevrolet Suburban driven by Darrell Hodge. Hodge has been described as a friend of Lloyd, and he reportedly hung out with Lloyd when Lloyd received texts from Hernandez. The existence of Lloyd’s fingerprints in a friend’s car is not a major revelation. But Hernandez’s attorneys nonetheless hope that any new details, however small, might give jurors reason to wonder if there is more to the story of Lloyd’s death than prosecutors contend.

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Sultan raised similar concerns about DNA evidence while cross-examining Sherri Menendez, a crime lab supervisor for the Massachusetts State Police. Earlier on Wednesday Menendez had testified about her lab’s testing of several pieces of evidence implicating Hernandez. The evidence included shell casings, a bullet hole-tattered and blood-stained sweatshirt worn by Lloyd on the night of his murder, clothing worn by Hernandez, a white towel found near Lloyd’s body and hair fibers. As a way of lending credibility to the lab’s findings, Menendez detailed safeguards used by the lab while evaluating and storing evidence.

Sultan attempted to chip away at Menendez’s assurances by highlighting the limits of her lab’s analysis. For instance, Sultan succeeded in getting Mendez to observe that the precise distance between the firing of the gun used to kill Lloyd and Lloyd himself was not determinable through her lab’s testing. Menendez also explained that her lab did not conduct DNA tests on every piece of evidence. The gum that had been stuck to the casing, for instance, was not tested. Menendez further acknowledged that gum on the shell casing could have transferred DNA from the gum to the casing. This was an important point for Hernandez’s defense: If jurors conclude that Hernandez’s DNA was on the shell casing, unintended DNA transfer might serve as an exonerating explanation.

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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