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Analyzing opening statements on first day of Aaron Hernandez trial

Did Aaron Hernandez mastermind the savage execution of Odin Lloyd or have cops and prosecutors falsely accused the former New England Patriots star? This is the essential question of Commonwealth of Massachusetts v. Hernandez, and discovering its answer began today in Judge Susan Garsh’s courtroom in Fall River, MA.

As jurors looked on, Bristol County prosecutor Patrick Bomberg and Hernandez attorney Michael Fee delivered radically different opening statements. They each tried to appeal to jurors’ logic and emotions. Bomberg detailed a “path” to murder, allegedly engineered by Hernandez that culminated in Lloyd being shot six times. In sharp contrast, Fee stressed that no witness will testify Hernandez shot Lloyd, no gun will prove Hernandez shot Lloyd and no juror should believe what Fee dismissed as a sensationalized and dishonest narrative offered by the prosecution.

Prosecution opening statement: strengths and weaknesses

Bomberg methodically detailed the timeline prosecutors say occurred before and after Lloyd was shot to death in an industrial park less than a mile from Hernandez’s home on June 17, 2013. Bomberg highlighted how multiple sources of evidence -- witness testimony, videos, photographs, cell phone triangulation findings, text messages and phone calls -- seemingly place Hernandez with Lloyd in the minutes before Lloyd’s death. Bomberg also told jurors that DNA evidence places Hernandez at the crime scene and that imagery of Hernandez carrying what appears to be a gun -- Bomberg claims the same Glock pistol used to shoot Lloyd -- connects Hernandez to the murder scene right after the murder took place.

Opening statements start in Aaron Hernandez murder trial

​Timelines are crucial for prosecutors. They are essentially narratives or stories designed for jurors to easily understand and believe why and how a defendant committed a crime. A good timeline goes a long way in securing a conviction. Conversely, defense attorneys will exploit any gaps in a timeline as a way of directing jurors to conclude that reasonable doubt exists.

Bomberg’s timeline, as detailed in his opening statement, was mostly a success.

He made clear that the prosecution is well positioned to convince jurors that Hernandez and Lloyd were with each other in the minutes before Lloyd was killed. Particularly if the DNA evidence and image of Hernandez possibly holding a .45-caliber Glock pistol prove swaying, the prosecution is also poised to persuade jurors that Hernandez was with Lloyd as Lloyd was killed. This is a crucial point. Hernandez’s attorneys would be in very rough shape if jurors conclude that Hernandez was with Lloyd as Lloyd died. After all, it would not be a far leap for jurors to reason that if Hernandez was with Lloyd as Lloyd died, Hernandez must have been involved in the murder of Lloyd.

Worse yet for Hernandez, Massachusetts allows convictions through a theory “joint venture.” This concept enables a murder conviction of a defendant who significantly assisted in the carrying out of the murder, even if that defendant didn’t “pull the trigger.” Jurors unanimously envisioning Hernandez as intricately involved with Lloyd’s murder would make a conviction very likely.

A potential weakness in the prosecution’s case for a first degree murder conviction was also detectable in Bomberg’s opening statement: unclear motive as to why Hernandez would plan such a brutal and ineptly-designed murder of a close friend. Bomberg referenced text messages that will supposedly show Hernandez was upset with Lloyd, but the leap between being “upset” with a friend and engineering a sadistic murder plot that relied on two others, Ernest Wallace and Carlos Ortiz, remains something of a mystery. Jurors might also wonder why Hernandez would need days to design a murder plan that was all but certain to implicate Hernandez. After all, the apparent plan involved Hernandez picking up Lloyd in a manner that would create witnesses, killing Lloyd oddly right near Hernandez’s home and then leaving Lloyd’s body to be easily discovered. The alleged design was so clumsy that jurors might wonder if it actually happened as prosecutors contend.

As described below, Fee lambasted the prosecution for failing to offer a sensible explanation for why Hernandez would plan the murder. Keep in mind, if jurors do not believe that Hernandez acted with premeditation, then they would not convict him of first-degree murder (but they could still convict of a lower degree of murder, including second degree murder and voluntary manslaughter).

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Defense opening statement: strengths and weaknesses

In some respects Fee had an easier job than Bomberg, but in other respects it was much harder. Fee does not have to convince jurors who killed Lloyd. He only needs to convince at least one of the jurors that there is reasonable doubt that Hernandez killed Lloyd. This dynamic enabled Fee to focus his opening statement on attacking the prosecution’s timeline and accompanying theories, rather than offering alternative explanations for Lloyd’s death. On the other hand, Fee had to contend with the reality that the prosecution spoke first to the jurors. Similarly challenging, Fee knew jurors had just listened to Bomberg detail the myriad forms of circumstantial evidence linking Hernandez to the murder.

Key issues in murder trial of former Patriots tight end Aaron Hernandez

​Fee may have connected with jurors when reminding them to be open-minded. By admonishing jurors to not fall for “dazzle” and TV-like storylines, Fee also tried to undermine the heavy role electronics and ballistics are expected to play in the trial.

Other strategies employed by Fee seem less certain of success. In what seemed like a too-obvious appeal to sports fandom, Fee reminded jurors that Hernandez “played for our hometown team, the New England Patriots,” and that Hernandez played a key role in the Patriots getting to Super Bowl XLVI in 2012. Jurors probably didn’t need to be reminded that Hernandez played for the Patriots and Fee referencing this fact may have seemed a little desperate.

On the other hand, Fee wanted jurors to see why it made no sense for Hernandez to murder anyone. The fact that Hernandez played for the Patriots might suggest he would be crazy to throw it all away. Along those lines, Fee highlighted how Hernandez was a father and was employed by the Patriots with a $40 million contract.

Fee’s strategy also involved a depiction of Hernandez and Lloyd as close friends who loved to smoke marijuana together. Hernandez called Lloyd, Fee said, “the blunt master.” According to Fee, evidence will also show that Lloyd was planning to go out with Hernandez the night he died and enjoy some “late night action in Boston.” This depiction, if true, would suggest that Lloyd was looking forward to seeing Hernandez rather than being fearful of him. Further, Fee stressed that Lloyd was more than a friend, he was potential family: Lloyd was dating Shaneah Jenkins, the sister of Hernandez’s fiancé, Shayanna Jenkins.

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​Fee also used some of his opening statement to rebut and in some cases ridicule the circumstantial evidence. For instance, Fee bristled that for all the video jurors will be shown, including video of Hernandez pumping gas, no video will show what the trial is about: a murder. Fee also argued that Hernandez rented cars all the time -- “it was part of his everyday existence” -- and thus Hernandez’s decision to rent one prior to Lloyd’s death amounts to inconsequential evidence. Then, taking issue with surveillance evidence of Hernandez acting suspiciously in his home after Lloyd died, Fee maintained this evidence is not suspicious because Hernandez easily could have disabled his surveillance system and yet chose not to. Fee also observed that evidence of Hernandez being with Lloyd before Lloyd died does not prove Hernandez had anything to do with Lloyd’s death. This is a simple yet important point to remind jurors.

Lastly, Fee alluded to a defense strategy that would be controversial but has worked for at least one other murder defendant who played in the NFL.  Fee claimed that investigators “lied to and harassed witnesses” until those witnesses told police what they wanted to hear about Hernandez. A defense built on framing the investigation as dishonest and as designed to ignore exonerating evidence and manufacture incriminating evidence is reminiscent of O.J. Simpson’s defense in his murder trial. Whether it works as well for Hernandez remains to be seen.

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.