Released evidence damning for Aaron Hernandez, but questions remain

Tuesday July 9th, 2013

Per order by Judge Daniel J. O'Shea, 156 pages of impounded evidence in the Commonwealth of Massachusetts' murder case against Aaron Hernandez was made public Tuesday afternoon. And in a separate filing in Florida, alleged murder accomplice Carlos Ortiz offered perhaps the most damaging statement yet about Hernandez, though the statement's admissibility in a trial is questionable. The evidence seems to paint a damning and detailed portrait of the former Patriot as intricately involved in the murder of Odin Lloyd.

Some words of caution before considering the evidence, which is described through law enforcement accounts. First, not all of it may be admissible in a trial. A judge may deem some of it too far removed from the case or overly prejudicial. Second, the persuasiveness of admitted evidence would come under fire during a trial. Hernandez's attorneys might claim certain pieces of evidence were improperly obtained, handled or stored, and science and technology experts hired by Hernandez will likely raise technical doubts and assert alternative conclusions.

The evidence released on Tuesday has been described only through the lens of prosecutors; in a trial, Hernandez's lawyers would frame it quite differently. The word "evidence," in other words, shouldn't be equated with the phrase "conclusive proof."

MORE COVERAGE: Rounding up info from unsealed warrants

None of this is to say that Hernandez or his attorneys should feel good about the evidence that was released. They shouldn't. But how that evidence would impact 12 jurors and two alternates in a trial is an altogether different matter.

With those caveats in mind, the evidence places Hernandez at the scene of the crime and describes him as acting suspicious in encounters with law enforcement. Among the most damaging: tire treads at the homicide's location allegedly match the Nissan Altima that Hernandez rented from Enterprise. Even more suspicious, Hernandez returned the Altima damaged and Enterprise claims a bullet was found in it. While it's possible that another Nissan Altima could have been at the scene of the homicide, these purported facts present a troubling coincidence for Hernandez's attorneys to explain away.

Evidence also reveals repeated interaction between Hernandez and Lloyd in the days and hours leading up to Lloyd's murder. For instance, witnesses place the two together at the Rumor Nightclub in Boston two days before Lloyd was killed. Surveillance video also shows an armed Hernandez returning home from Rumor and meeting two men in his driveway, including alleged murder accomplice Ernest Wallace. Other surveillance video shows Hernandez, Lloyd and others entering and exiting the Nissan Altima, as well as Hernandez holding a gun. Text messages also portray Hernandez as an organizer in meetings with Lloyd. If Hernandez is ultimately convicted, the vast array of electronic evidence likely will have played a major role.

In Hernandez's defense, no video shows Hernandez or anyone else shooting Lloyd -- in fact, we still don't know who shot Lloyd. Also, there are gaps of time between video evidence that could leave room for question. Still, given the totality of evidence released on Tuesday, it doesn't require great imagination to envision ways that Hernandez could have been involved in Lloyd's murder.

Hernandez's attorneys must also determine a strategy for rebuking the testimony of Ortiz, who is now cooperating with law enforcement. Ortiz is described as leading police to Hernandez's "flop house" in Franklin, Mass., where police found .45 ammunition, which ballistics evidence confirmed is the type of bullet used to kill Lloyd. Even if Hernandez's attorneys can effectively portray Ortiz as selling out Hernandez to save himself -- Ortiz only faces firearm charges -- that would not debunk the underlying ammunition evidence. Police are said to have found other implicating evidence in Hernandez's apartment, including additional ammunition and a scale used to weigh drugs.

Aaron Hernandez faces murder and multiple gun charges in the death of Odin Lloyd.

In a filing in Florida, Ortiz relayed to law enforcement a secret allegedly said by another purported accomplice, Wallace. Ortiz claims Wallace told him that Hernandez confided in him (Wallace) that he shot Lloyd. Ortiz's statement is "double hearsay." He is telling of another person's statement that relays a third person's statement. The statement is only admissible if prosecutors can show that each part of the combined statement would be admissible. Alternatively, Wallace -- and not Ortiz -- would likely have to testify that Hernandez made the statement for it to be admissible. Even if it were, it would require some clarification as to why Ortiz didn't know who shot Lloyd until Wallace told him. The filing also contains information that a car wanted in connection with a double homicide in Boston last fall was recently found in Bristol, Conn. and had been rented in Hernandez's name.

In the Massachusetts warrants, Hernandez is portrayed as uncooperative and suspicious when faced with police inquiries. Most notably, police say he slammed the door on them when they told him they were investigating a death. Curiously, it seems, Hernandez did not ask a question that common sense suggests would be asked: Who died? That said, Hernandez was within his rights to decline to speak until he first talked with his attorney, and minutes later he agreed to speak. While slamming the door on the police is not generally a wise move, it should not be equated with guilt. Also, he was not legally obligated to ask who died.

Hernandez's attorneys may face criticism for declining to appeal Judge O'Shea's release of the information. The alleged details revealed are unflattering for their client and might adversely impact potential jurors' views of Hernandez. An appeal was unlikely to succeed, however, and the evidence would probably have become public at another time.

While the evidence released Tuesday offers a detailed account of Hernandez's alleged participation in the murder of Lloyd, it accomplishes little by way of explaining why Hernandez would murder Lloyd. Interestingly, Hernandez's fiancé, Shayanna Jenkins, describes Lloyd as a marijuana dealer. One might infer that the sale of marijuana from Lloyd to Hernandez could have something to do with Lloyd's murder, but the evidence does not make that connection.

As for Hernandez's potential involvement in the double murder in Boston, perhaps, some surmise, Lloyd was killed to keep him from talking about that double murder. That theory remains speculation, however, and is uncorroborated by the evidence released today. As long as Hernandez can argue that he had no reason to kill Lloyd, it could plant seeds of doubt in jurors' minds as to his culpability.

Bottom line: The accounts released Tuesday reflect poorly on Hernandez. But the defense hasn't yet challenged the evidence underlying these accounts. Moreover, even in the most flattering light for prosecutors, the accounts do not conclusively prove that Hernandez committed murder.

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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