Wednesday March 11th, 2015

Was Aaron Hernandez armed with the gun used to execute Odin Lloyd two nights before Lloyd’s murder? Bristol County (Mass.) prosecutors hope jurors believe so after testimony on Tuesday, the 24th day of the trial. Jurors would have reached this conclusion after hearing from Samson Michael, the account manager for the valet service at the W Hotel in Boston. In his testimony, Michael detailed how he watched Hernandez interact with a valet, Anthony Jerome, as Hernandez stood next to the open driver’s side door of his SUV at around 1:30 or 1:45 a.m. on Saturday, June 15, 2013. Michael told Bristol County assistant district attorney William McCauley that while watching Hernandez, he saw the former New England Patriots star tuck a “black object” into his waistband. Michael observed that the object looked like a gun. “I could mostly see the handle,” Michael recalled. When prompted to provide more detail, Michael thought he saw a “square handle ... it looked a semi-automatic gun.”

Prosecutors contend that a .45-caliber Glock pistol was used to execute Lloyd at an industrial park located a mile from Hernandez’s home in North Attleboro (Mass.). The .45-caliber Glock pistol is a semiautomatic gun with a black, square handle, meaning it matches the description offered by Michael. The actual gun used to kill Lloyd remains missing, which forces prosecutors to attempt to link Hernandez to the same gun model.

Defense: Valet manager’s gun testimony wildly speculative and possibly biased

Hernandez attorney Michael Fee aggressively challenged Michael on his memory of the “black object” held by Hernandez on that summer night. “You saw it for only three seconds?” Fee pressed Michael, who acknowledged he only saw the black object momentarily. Michael further admitted he was standing about 18 feet from Hernandez when he made his observation. Raising even more doubt, Michael acknowledged that he watched Hernandez through the glass of a vehicle rather than in plain sight and that it was dark outside. There was also foot traffic present as nearby bars and pubs were about to close. Fee then led Michael to describe how after he notified the hotel’s director of security about seeing a possible firearm, an investigation was conducted and nothing was found.

TRIAL COVERAGE: Opening statements | Day 19 | Day 20 | Day 22 | Day 23

Perhaps most persuasively, Fee gave jurors reason to believe that law enforcement manipulated Michael into “thinking” he saw a gun. Before Michael testified in front of a grand jury investigating Hernandez, a state trooper demonstrated to Michael how he tucked a gun into his belt. The demonstration, Fee implied, could have planted the seed in Michael’s mind that he, too, saw a gun tucked into a belt on June 15, 2013.

Keep in mind, even if jurors conclude that Hernandez was carrying a gun, it would not necessarily follow that it was the murder weapon. First, there are many kinds of semi-automatic weapons and many kinds of guns that have black, square handles. Second, earlier testimony from Hernandez’s housekeepers indicated that different types of guns could be found in varied locations in Hernandez’s home. Third, remember that Hernandez faces five firearm charges in addition to the murder charge. This all suggests that evidence of him holding a gun does not necessarily mean it was the gun used to kill Lloyd.

Did Hernandez text coded messages to Shayanna Jenkins to discard the murder weapon?

Earlier on Tuesday, AT&T network engineer Christopher Ritchell testified for hours about Hernandez’s phone and text records. The records indicated that Hernandez’s phone was not communicating with a network several hours before and after Lloyd’s murder and that Hernandez made numerous calls on the day after Lloyd’s murder. Hernandez, according to the phone records, also made his first call to Lloyd on June 6, 2013—only 11 days before Lloyd’s murder. This implied that Hernandez and Lloyd might not have been as close as Hernandez’s attorneys contend.

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Several text messages sent by Hernandez to his fiancée, Shayanna Jenkins, stood out in Ritchell’s testimony. One occurred at 8:57 a.m. on June 15, 2013. Hernandez sent it from his Franklin (Mass.) flophouse where he and Lloyd had partied the night before and where Hernandez and Jennifer Fortier (the nanny for Hernandez’s infant daughter) had briefly kissed. Hernandez wrote Jenkins, “I f--- up again and f--- I didn’t mean to but got drunk and too f--- up an[d] [Lloyd] took care of me…..I jus woke up buggin im sorry and on way home.” To send this text, Hernandez used Lloyd’s phone, which interestingly listed Jenkins as “Boss Lady.” Earlier testimony revealed that Lloyd’s phone listed Hernandez as “Dis [variation of the 'n' word].” Lloyd’s use of nicknames rather than actual names would be consistent with a person who may have sold drugs, as has been suggested about Lloyd, and thus would not want to implicate his buyers.

Hernandez also texted Jenkins with a suspicious message at 12:18 a.m. on Tuesday, June 18, 2013, approximately 21 hours after Lloyd was murdered. The message was sent while Hernandez was voluntarily visiting the North Attleboro Police Department, which had begun its investigation into Lloyd’s murder. The message, which references Hernandez and Jenkins’ daughter Avielle, read: “Go in back of the screen in movie room when u get home an there is the box avielle likes to play with in the tub jus in case u were lookin for it!!!! Member how u ruined that big tv lmao WAS JUST THINKIN bout that lol wink wink love u TTYL….k.” In response to Hernandez’s text, Jenkins wrote back, “OK – that was awful…Perfect tv…Love u.”

Unraveling the meaning of these texts requires some effort, but Hernandez’s use of “wink wink” in reference to a “box” behind a screen could signal the box that prosecutors believe Jenkins removed from the house hours later that may have contained the murder weapon. Jurors might also wonder why Hernandez, who by that point had surely sensed he was a person of interest in Lloyd’s murder, would take time to dispatch a seemingly cryptic message about a box behind a screen.

Defense: There is no coded message and the records are not troubling

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Hernandez attorney Charles Rankin cross-examined Ritchell, who acknowledged that numerous phone calls sent by a phone does not establish a pattern of suspicious activity. Ritchell agreed with Rankin that there are “many possibilities” for numerous calls, including a call back after a dropped call, a failure to connect to a nearby cell tower and a caller’s unwillingness to leave a voicemail. Rankin also showed jurors video of Hernandez apparently searching for his phone in his home while others called it, which could account for some of the calls. Ritchell also agreed with Rankin that a phone being turned off does not necessarily mean the user intentionally turned off the phone, that the battery could have simply run out. Rankin wanted jurors to regard Hernandez’s phone and text records as evidence of everyday life, not gangster life.

Jurors might also interpret Hernandez’s text messages as neutral or even favorable to his innocence. For instance, Hernandez remarked commendably about Lloyd, whom Hernandez wrote “took care of” him after a night of heavy drug and alcohol use. It might strike jurors as odd that Hernandez would want Lloyd dead 18 hours later. As to Hernandez’s text to Jenkins about “the box,” the message could cut both ways. On one hand, it certainly raises suspicions, particularly given Hernandez’s use of the phrase “wink wink” and the surveillance video of Jenkins carrying out a trash bag that seemed to have a box-shaped item in it. On the other hand, the text references a box that Hernandez said his daughter, whom evidence indicates Hernandez truly loved, liked to play with in the tub. While it may be odd that a box used by a child in a bathtub would be placed behind a television screen, the message is far from conclusive of unlawful conduct.

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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