Aaron Hernandez trial: Day 28
1:24 | NFL
Aaron Hernandez trial: Day 28
Wednesday March 18th, 2015

Did Aaron Hernandez angrily stare down Odin Lloyd in a Boston nightclub two nights before Lloyd’s murder...or was Hernandez merely exhibiting his usual facial expressions while gazing onto a dance floor and conversing with the disc jockey? Did Hernandez furiously storm out of the nightclub with his head pointed down...or did he simply want to avoid recognition from autograph-seekers and other fans while briskly pacing toward his car?'

TRIAL COVERAGE: Opening statements | Day 25 | Day 26 | Day 27

Testimony by eyewitness and friend of Lloyd, Kwami Nicholas, on Tuesday, the 28th day of the trial, gave jurors much to think about. From a legal perspective, Nicholas’s testimony opened the door for Bristol County (Mass.) prosecutors to establish a possible motive for Hernandez to have murdered Lloyd. To date, it remains a mystery why Hernandez would have wanted Lloyd dead. While motive is not required for a first-degree murder conviction, jurors normally want an explanation for why a defendant would intentionally seek to kill another human being. Nicholas didn’t offer that explanation. He did, however, signal that Hernandez was upset with Lloyd—at least until Nicholas faced cross-examination and his recollection of events and facts began to unravel.

Hernandez portrayed as angry with Lloyd

Nicholas recalled standing near both Lloyd and Hernandez in the Rumor nightclub on the evening of Friday, June 14, 2013 and early morning of Saturday, June 15, 2013. This would be one of Lloyd’s last nights alive, as he was shot to death in an industrial park on Monday, June 17, 2013.

Nicholas testified that he first noticed Hernandez at the nightclub when the disc jockey announced, “Aaron Hernandez is in the building!” Hernandez was standing next to the DJ booth at this time. Nicholas then delivered a chilling account of what happened next.  Hernandez, Nicholas remembered, “was just standing there staring at Odin and [Lloyd’s friend Glenroy Herbert].” Nicholas later added, Hernandez’s “eyes were beaming at Odin and Glen.” Nicholas also opined that Hernandez “seemed angry about something” and that he “looked tense—something was amiss.” Nicholas offered no explanation for why Hernandez might have been upset with Lloyd or Herbert, or upset with both men.

Nicholas then told jurors about Hernandez “storming” out of the nightclub. “He was walking real fast with his head down,” Nicholas explained, “and he had the same grunt [as he had inside the nightclub]. He looked like he was mad, he was moving really fast.” Nicholas then recalled an unsettling exchange between Hernandez and Lloyd outside the nightclub. “Hernandez was telling Odin to go talk to someone,” Nicholas remembered, “and he used an aggressive tone of voice” that was loud enough for people nearby to hear.

Accompanying Nicholas’s testimony was surveillance video from outside the nightclub. Jurors were shown video of the man Hernandez allegedly directed Lloyd to speak with, and thereafter Hernandez and Lloyd seemed to gravitate toward separate crowds. This visual, particularly in conjunction with Nicholas’s commentary, pictured Hernandez and Lloyd as at odds—a far cry from the joyful account offered by Hernandez’s attorneys of Hernandez and Lloyd as good buddies with Lloyd acting as Hernandez’s “blunt master” in providing him high quality marijuana products.

It should be noted that Judge Garsh struck much of Nicholas’s testimony from the trial record. She expunged a number of Nicholas’s recollections on grounds they lacked foundation: Nicholas was only permitted to testify about what he actually witnessed, not what he inferred from Hernandez’s behavior. Nonetheless, jurors heard those remarks. As a practical matter it’s impossible to “erase” what jurors hear, even if a judge instructs jurors that certain witness statements are not part of the record.

Chipping away at Nicholas’s testimony and play-by-play of what happened

Until he faced cross-examination, Nicholas had delivered a game-changing testimony.

He depicted Hernandez as behaving as an angry and scary man whom Lloyd had infuriated. While it’s unclear why Hernandez might have been upset with Lloyd, the possibility that Hernandez was upset served as a stark departure from earlier testimony about Hernandez’s positive or neutral behavior while around Lloyd.

Aaron Hernandez-Odin Lloyd friendship questioned on trial Day 27

Then Hernandez attorney Michael Fee embarked on a hard-hitting line of questioning that evoked many questions about Nicholas’s recollection and even his believability. Fee’s central goal was to suggest that Nicholas had substantially altered his account of what he saw at the nightclub and that he did so to fit law enforcement’s preferred narrative. Fee advanced this objective through a number of means, but most powerfully by showing jurors clips of a videotaped interview of law enforcement interviewing Nicholas in September 2013. Fee highlighted that during the interview, Nicholas did not mention Hernandez “staring” at Lloyd—a seemingly memorable fact—but instead added it during a second police interview conducted in August 2014. Another clip indicated that Nicholas had told police in 2013 that he recalled Hernandez talking to the DJ rather than looking at Lloyd, an observation that Nicholas now says didn’t occur. Nicholas also gave conflicting testimony about the locations of Hernandez, Lloyd and Herbert within the nightclub and about how long the men stayed in the nightclub. Nicholas was at times non-responsive to Fee’s questions and even combative. This was particularly apparent after Fee expressed that Hernandez could not see Lloyd and Herbert from where Hernandez stood in the nightclub. Nicholas mockingly laughed at Fee and insisted, “yes he could.” For his part, Fee also displayed agitation at Nicholas. At one point Fee griped, “Do you have a poor memory, sir? You can’t recall facts after seeing video.”

Fee also made sure jurors heard that whether or not Hernandez stared at Lloyd, Lloyd didn’t seem upset after the alleged staring occurred. Nicholas admitted that Lloyd and Herbert exchanged whispers and laughs. They also embraced each other as good buddies. If Hernandez intended to frighten Lloyd while on opposite sides of the dance floor, it didn’t seem to work.

Nicholas also acknowledged that he was in no position to “read” Hernandez’s facial expressions. While Nicholas knew Hernandez played for the New England Patriots, he had never met him. Fee raised the possibility that Hernandez, like others who go to nightclubs but don’t dance, might have merely been gazing into the dance floor. In response, Nicholas tried to draw a distinction between Hernandez staring and Nicholas himself “looking around” the dance floor, but the point was made: Hernandez might have merely been looking in Lloyd’s direction and thinking about something unrelated to Lloyd.

Fee then challenged Nicholas’s portrayal of Hernandez as angrily bolting from the nightclub. “You said he had a ‘mad face,’ didn’t you, Mr. Nicholas?” Fee inquired, “Well how do you know when you’ve never met him? Have you ever been to a nightclub with Aaron Hernandez before? You’ve never seen his face live up close and personal, have you?” Nicholas all but acknowledged he had no basis to judge Hernandez’s facial expressions. In rhetorically asking Nicholas, “have you ever seen Aaron Hernandez leave a club atmosphere before,” Fee later made sure jurors recognized that Hernandez might have exited hastily in order to avoid “people trying to take his picture.” Fee also led Nicholas to describe Lloyd as “looking normal”—and by implication not afraid—when Nicholas met up with Lloyd later that weekend.

Lastly, Fee raised questions about whether Nicholas was in a sufficiently reliable state of mind while watching Hernandez in the nightclub. In response to Nicholas recalling that he and his friends “were chilling” before arriving at the nightclub, Fee made Nicholas admit that “chilling” was a euphemism for “smoking marijuana.” Fee wants jurors to imagine Nicholas as drugged out on the night in question.

Nicholas’s dramatic appearance even continued as he stepped down from the witness stand. CNN’s Susan Candiotti, sitting behind Hernandez in the courtroom, observed that Nicholas and Hernandez exchanged glances at each other as Nicholas walked past the defense table.

For jurors, Nicholas will surely be a memorable witness. Whether jurors believe his testimony will likely prove a point of debate during jury deliberations.

Testimony about Hernandez wearing Nike Air Jordans

Later on Tuesday, Nike consultant Herbert Hedges testified about the Air Jordan sneakers that prosecutors contend Hernandez wore at the crime scene. Hedges, who Nike contracts to testify in criminal cases involving Nike products, gave extensive testimony about the manufacturing and distribution of Nike sneakers. He also detailed measures taken by Nike to prevent counterfeits, which signaled to jurors that Nike sneakers’ outsole patterns left distinctive footwear impressions. Most significantly, Hedges offered his expert opinion that Hernandez wore Air Jordans when Hernandez was captured in photographs before and after Lloyd’s murder. “The Jumpman [logo of Michael Jordan flying in the air] and carbon fiber plate can be seen” Hedges observed while studying a photo of Hernandez in a gas station shortly before Lloyd’s murder. Hedges added that Hernandez wore “a very unique shoe.”

During cross examination, Hernandez attorney James Sultan sought to make jurors believe that Hernandez’s Air Jordans were the same type of shoes worn by many other people—perhaps people who could have also left footwear impressions at the crime scene. Hedges admitted that a little over three million shoes with the type of outsole pattern found on Hernandez’s Air Jordans were made and distributed in the United States.

Hernandez trial: Doubts surface in Glock Inc. manager's testimony

But on re-direct examination, Bristol county assistant attorney William McCauley adroitly led Herbert to observe that of those three million shoes, there are different sizes and thus smaller and larger footwear impressions. McCauley further directed Herbert to acknowledge that a relatively small percent of shoes are made for men with size 13 because it is unusually large (Herbert noted that the peak of the “bell curve” for shoe production for men is size 10 or 10.5). Lastly, McCauley led Herbert to note that of the 3 million shoes that have the same outsole pattern, only about 93,000 of those shoes matched up with the model worn by Hernandez.

Without jurors present, prosecutor says Hernandez directed his fiancée to destroy evidence and to bankroll alleged accomplices

Before jurors returned to the jury box after a lunch break, Judge Garsh heard arguments by both sides over whether a search warrant related to Hernandez’s shoes had probable cause or was “stale” due to its timing. Judge Garsh did not issue a ruling but heard noteworthy remarks. Assistant district attorney McCauley, in particular, made several striking statements about Shayanna Jenkins, Hernandez’s fiancée. McCauley declared that Hernandez used Jenkins to make evidence “disappear.” He added that during a jailhouse communication, Hernandez remarked, “She does what I want her to do.” Hernandez, according to McCauley, also allegedly told Jenkins to withdraw money to give to Hernandez cousin Tanya Singleton, who prosecutors believe provided assistance to Hernandez co-defendant Ernest Wallace.

To be clear, McCauley’s statements have not been proven by evidence presented in the trial. But they may provide a preview of what to expect over the next couple of weeks, when jailhouse recordings of Hernandez are expected to play a significant role.

It is also possible that Jenkins, whom prosecutors believe removed the murder weapon from Hernandez’s home, will testify, as she has been provided immunity. But as explained previously on, the granting of immunity does not compel Jenkins to testify. It does, however, make it harder for her to effectively plead the Fifth Amendment since she can’t self-incriminate herself on matters covered by the immunity.

If called by prosecutors to testify, Jenkins would have few options. She could simply refuse to testify. The drawback to Jenkins in adopting such a non-cooperative strategy is that she would likely be held in jail on contempt of court charges until the end of the trial. Jenkins could instead cooperate and provide testimony, but she would do so at the risk of perjury if she knowingly lied. Alternatively, Jenkins could cooperate but then claim that she “doesn’t recall” what happened. It would be up for Judge Garsh to decide if Jenkins is truthful, including in the face of surveillance video of Jenkins taking a possibly suspicious garbage bag out of Hernandez’s home.

Video of a car that might be the silver Nissan Altima

The last witness of the day, Michael Charette, offered testimony about a car captured on surveillance cameras that could be the silver Nissan Altima rented by Hernandez and allegedly used to bring Lloyd to the industrial park where he was killed. Charette testified on behalf of a company located near the industrial park. Security cameras captured a speeding car that appears and re-appear 3 minutes and 40 seconds apart. If this car was the car used to bring Lloyd to the crime scene, it would mean Lloyd’s execution—including him leaving the car and being shot—happened fast and that the murderers exited the scene hastily.

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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