Monday April 6th, 2015

Jurors empaneled for the trial of Aaron Hernandez heard the last day of witness testimony on Monday. Unlike every other day during the trial, the defense called the witnesses this time around. In turn, Bristol County (Mass.) prosecutors—who had called 131 witnesses to the stand over the last nine-weeks—conducted the cross-examination. Hernandez’s legal team only called three witnesses, which could be interpreted as a sign of their confidence that the prosecution failed to prove its case beyond a reasonable doubt or a sign of fear that prosecutors would better implicate Hernandez during cross-examination of numerous defense witnesses. Either way, the defense’s case-in-chief came and went on Monday.

The most significant of the three defense witnesses was David Greenblatt, M.D., the Louis Lasagna Professor of Pharmacology and Experimental Therapeutics in the Department of Molecular Physiology and Pharmacology at Tufts University School of Medicine. Hernandez’s attorneys called the 69-year-old Greenblatt to imply to jurors that the man who shot Odin Lloyd was more likely either co-defendant Carlos Ortiz or co-defendant Ernest Wallace than Hernandez and that the shooter may have been acting in a psychotic rage triggered by use of phencyclidine (better known as PCP or angel dust). If Ortiz or Wallace shot Lloyd while in a crazed, unpredictable state, Hernandez would presumably not have shared the intent to kill Lloyd and thus would not be guilty of murder as a joint venturer.

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In March, jurors heard about Ortiz and Wallace using PCP from Hernandez cousin Jennifer Mercado, who was a witness called by prosecutors. Mercado told jurors that she was aware that Ortiz and Wallace used PCP and thought the two men exhibited behaviors consistent with PCP use several hours before Lloyd’s murder on June 17, 2013. Jurors also watched video of Ortiz dancing by himself while Hernandez pumped gas at a gas station about an hour before Lloyd’s death.

Greenblatt’s main point was that PCP, which was developed as an anesthetic in the 1950s but taken off the market in 1965, “can cause violent behavior” at “unpredictable” times. He noted that PCP users “can be normal at one time and then violent at another time.” Greenblatt also stressed that psychotic and delusional behaviors associated with PCP use can occur intermittently weeks or even months after the drug is ingested. The overall behavior exhibited by a person showing the effects of PCP, Greenblatt remarked, is similar to the behavior of a person suffering from schizophrenia. “They can harm themselves and harm others,” Greenblatt testified, “there could be an attack on the whole body, one limb, many possibilities.”

Whether jurors make the connection between Greenblatt’s testimony and the behavior of Wallace and Lloyd is uncertain, but Hernandez’s attorneys do not have to convince jurors of Hernandez’s innocence. They only need to create reasonable doubt of guilt in at least one juror’s mind to prevent a conviction.

Prosecution attacks Hernandez’s PCP Defense

During cross-examination, Bristol County assistant district attorney Phillip Bomberg attempted to undermine Greenblatt’s testimony about PCP and its possible relationship to Wallace and Ortiz. Bomberg, for instance, wondered why the Harvard Medical School-trained Greenblatt, who has authored or co-authored more than 700 scholarly articles and received more than a dozen awards, has not written directly about PCP and violence. Greenblatt responded that some of his writings relate to the topic and also stressed that researchers could not conduct studies on PCP and humans once the drug was deemed unsafe in 1965.

Bomberg also tried to portray Greenblatt as advocating eccentric views. Bomberg claimed that Greenblatt once authored an article in which Greenblatt argued that professional athletes should not be randomly tested for performance-enhancing drugs or recreational drugs. While Greenblatt responded that Bomberg had misarticulated the article’s thesis, Bomberg hopes that jurors will view Greenblatt as out-of-touch with common sense.

Bomberg also asked Greenblatt to watch and comment on video clips of Ortiz and Wallace taken at Hernandez’s North Attleboro (Mass.) home shortly before and after Lloyd’s death. One clip showed Ortiz and Wallace putting on clothes and moving items in and out of a car in a seemingly purposeful, organized and—most importantly—not psychotic way. Greenblatt responded that it is impossible to tell whether Ortiz and Wallace were exhibiting the effects of PCP at that time without conducting tests on them.

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In another clip, taken perhaps a few minutes after Lloyd’s death, Hernandez turns his back on Ortiz and Wallace while in the driveway. Bomberg demanded that Greenblatt explain how if Ortiz and Wallace “had just engaged in violent psychosis” by unpredictably shooting Lloyd, would Hernandez feel comfortable turning his back on them? Hernandez’s attorneys objected to the question and Judge Garsh prevented Greenblatt from answering, but jurors nonetheless heard the question. They also heard Greenblatt testify that while he “didn’t see anybody attack anybody” in this same driveway video clip, “there might be hostility.”

Greenblatt also conceded that heavy alcohol use can be associated with violence. Earlier in the trial, jurors heard testimony from Hernandez’s fiancée, Shayanna Jenkins, that Hernandez had a significant amount to drink while out at the South Street Café in Providence (R.I.) hours before Lloyd’s murder.

Lastly, as a rebuttal witness to Greenblatt, prosecutors called Martin Brecher, M.D., a psychiatrist who has written about the impact of PCP and found that the drug is unlikely to trigger violent behaviors. For jurors, Brecher’s testimony offered an alternative characterization of PCP that favors the prosecution.

Next steps

Jurors will not be presented with any more witnesses or pieces of evidence. Closing arguments are expected on Tuesday. One of Hernandez’s attorneys, most likely Michael Fee, will go first and then a prosecutor, most likely William McCauley, will go second. Each side will have up to 90 minutes to make their best—and last—pitch to jurors. Whether each side takes 90 minutes remains to be seen, as the risk of lecturing non-stop for so many minutes is that jurors might tune out the speaker.

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After closing arguments, Judge Susan Garsh will provide jurors with detailed instructions on possible verdicts. Hernandez’s fate will then be placed in the hands of 15 jurors, 3 of whom will be randomly selected as alternates and the remaining 12 will vote on whether or not to convict Hernandez of the murder charge and five firearm charges. It could take hours or days for jurors to reach a unanimous verdict, which is required for a conviction or a finding of not guilty. Otherwise, it is a hung jury. 

Given the unusual complexity and length of Hernandez’s trial, it would not be unreasonable to expect that jurors will want to review video and other evidence, and pose questions to Judge Garsh about how to interpret what are likely to be complicated jury instructions. Judge Garsh will try her best to facilitate jury deliberations, while also maintaining her impartiality.

If jurors are unable to unanimously agree on a verdict after several days, they would likely inform Judge Garsh of their predicament. She would then strongly encourage them to continue to deliberate. If that encouragement fails, Judge Garsh would declare a mistrial and prosecutors would need to determine if they will retry Hernandez—who already faces a future double murder trial in Boston—at a future date.

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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