Yoon S. Byun/The Boston Globe via Getty Images
By Michael McCann
February 05, 2015

Did law enforcement bungle the crime scene where Odin Lloyd was executed?

Questioning by Aaron Hernandez’s lawyers on Thursday attempted to portray the scene as disorganized and unreliable. Hernandez attorney James Sultan aggressively challenged North Attleboro (Mass.) Police captain Joseph DiRenzo on decisions of officers to move evidence, including casings from the .45-caliber Glock pistol allegedly used to murder Lloyd and a blunt, without conducting measurements and other ballistic examinations. Sultan also suggested that numerous footprints by police and other persons who approached Lloyd’s body could have corrupted evidence potentially linking Hernandez’s shoes.

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In response, DiRenzo insisted the police had adopted standard operating procedures, which included “eyeballing” certain pieces of evidence. He stressed, moreover, that police procedures were significantly impacted by weather forecasts of heavy rain. DiRenzo added that numerous pieces of evidence, including tire tracks and footprints, were carefully covered in light of the pending rain.

Portraying the crime scene as tainted or undependable is an important strategy for the defense. Sultan and his colleagues are aware that Hernandez is inextricably tied to the scene. Lloyd, after all, was murdered in an industrial park located less than a mile from Hernandez’s home and there is video and photograph evidence of Hernandez and Lloyd together minutes before Lloyd was killed. Prosecutors also intend to introduce DNA evidence and cell phone triangulation results that place Hernandez at the scene. These factors represent a confluence of suspicious circumstances for jurors to weigh as they evaluate Hernandez.

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But if Hernandez’s attorneys can convince jurors that the crime scene was polluted and that officers acted amateurishly, jurors may begin to question whether they should trust Bristol County (Mass.) prosecutors. In his opening statement, Hernandez attorney Michael Fee argued the police arrested Hernandez since he was the most plausible suspect, not because the police believed he was guilty. This framing of the case may become more compelling if jurors begin to worry about possible defects in evidence gathering.

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Unfortunately for Hernandez’s attorneys, DiRenzo seemed to capably address Sultan’s concerns. It is unlikely that jurors came away from DiRenzo’s testimony distrusting evidence found at the crime scene. Still, watch for the defense to continue to raise questions about the quality and authenticity of incriminating evidence.

Has Hernandez’s home become more jury-friendly since he was arrested?

In an interesting development, prosecutor Patrick Bomberg alleged that items found in Hernandez’s North Attleboro (Mass.) home have changed significantly since Hernandez’s arrest in June 2013. Bomberg’s observation was raised as Judge Susan Garsh contemplated guidelines for the jury to visit Hernandez’s home on Friday. Bomberg reminded Judge Garsh that a similar problem emerged in the prosecution of O.J. Simpson for murder back in the mid-1990s.

Among the items Bomberg claims have been added to Hernandez’s home are memorabilia of Hernandez’s time with the New England Patriots from 2010 to 2013.  One plausible motivation for representatives of Hernandez to add Patriots-related items would be to remind jurors, who are from Massachusetts, that Hernandez played for the Super Bowl champion Patriots. This wouldn’t be the first attempt by Hernandez’s representatives to not-so-gently alert jurors that Hernandez is a former Patriot. In his opening statement last Thursday, Fee bluntly noted that Hernandez had “played for our hometown team, the New England Patriots,” and that Hernandez was instrumental in the Patriots advancing to Super Bowl XLVI in 2012. Bomberg also noted that religious items were added to Hernandez’s home. These items could have been added for multiple reasons. A cynical reason would be to portray Hernandez more favorably in the eyes of jurors.

Keep in mind legal teams have long been known to consult with jury experts. These experts design strategies for defense attorneys to subtly influence jurors into emotionally connecting with the defendant. While it is uncertain to what extent Hernandez’s attorneys have employed jury experts, it would make sense for them to do so.

Items in Hernandez’s home will not present an issue when jurors visit. Hernandez’s attorneys ultimately accepted a plan offered by Judge Garsh to remove and conceal some of the items.

Five days into trial, Deflategate enters the discussion

On a day when Hernandez’s time with the Patriots received attention, it is perhaps fitting that Deflategate emerged as a topic. In his final question to Massachusetts State Police trooper Timothy Dowd concerning measurement of tire pressure, Sultan light-heartedly asked, “Did you ever receive training in football deflation devices?” Dowd quickly answered “no.”

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While Sultan’s reference to Deflategate was obviously a joke, it may have been more of a strategic joke than a spontaneous one. Lawyers spend considerable time developing and rehearsing questions to ask witnesses. This means Sultan had likely planned to ask Dowd the question about Deflategate.

Why would Sultan, not known as a jokester, ask a playful question about a topic completely irrelevant to whether Hernandez committed murder?

It is possible Sultan simply wanted to inject a light moment into an otherwise intensely-seriously trial. But it is also possible that Sultan calculated that jurors in the Hernandez trial are well aware of the Deflategate saga and there’s a good chance they regard the NFL’s investigation as factually unfounded and as slanderous to the Patriots. Remember, anything a lawyer can do to connect to jurors can make a difference. Hernandez’s highly accomplished team of attorneys certainly knows that.

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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