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Even with immunity, no guarantee that Hernandez fiancée testifies

A day after Bristol County (Mass.) prosecutors granted immunity to Aaron Hernandez’s fiancée, Shayanna Jenkins, Jenkins was back at Bristol County Superior Court on Wednesday to continue her visible support of Hernandez. Jenkins’ courtroom behavior, which reportedly included exchanging smiles and giggles with Hernandez, is a preliminary indication that she will not cooperate with the government. Prosecutors believe that Hernandez ordered Jenkins to hide or destroy the .45-caliber Glock pistol allegedly used to kill Odin Lloyd. As explained last night in an legal analysis of Jenkins’ immunity, Jenkins is not obligated to testify merely because she has been granted immunity. However, she would likely face jail time if she refuses. If Jenkins testifies that Hernandez told her to get rid of the gun, Hernandez’s attorneys would need to dramatically revise their legal strategy. They are likely breathing a sigh of relief to see Jenkins back in court and smiling in the direction of Hernandez.

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Did the crime scene produce reliable evidence?

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Hernandez’s attorneys are probably also pleased by their cross-examination of several law enforcement witnesses in today’s hearing. The focus today was on the crime scene at the industrial park where Lloyd was found shot to death. There was substantial testimony on steps taken by North Attleboro police officers to secure and safeguard evidence. Testimony also detailed how a pending storm required police officers to adjust their normal practices. As part of today’s proceeding, jurors were shown graphic images and video of Lloyd’s body. They then heard police officers discuss how “major case prints” (detailed finger and palm prints) were collected and recorded, and how two perimeters were set up around Lloyd’s body. Jurors were told that footwear impressions had trampled over tire impressions. This account would be consistent with, although not conclusive of, the prosecution’s proposed narrative that Lloyd and others had exited a car at the industrial park.

On cross-examination, Hernandez attorney James Sultan framed the crime scene as chaotic, disorganized and woefully incomplete. He highlighted gaps in the videotaping of nearby shoe prints. Sultan also wondered why police officers didn’t film all of the footprints and only selectively zoomed in to record some of them. Footprints are potentially crucial evidence linking Hernandez to the crime scene. Prosecutors are expected to offer detailed testimony that footprints matching Hernandez’s shoes were found near and around Lloyd’s body. To the extent the prosecution’s footprint evidence appears compromised or unfinished, Hernandez’s attorneys would have a means of rebuking it. Sultan also stressed that most of the crime scene was uncovered by a tarp and canopy, thus implying that weather conditions may have damaged evidence.

Sultan adopted a particularly combative tone while cross-examining North Attleboro police officer Edward Zimmer. One of Zimmer’s responsibilities at the crime scene was to record the movement of evidence, and to log the names of person who entered the area and the times they entered. Zimmer acknowledged there was a “typo” in his log concerning the time an officer arrived. Sultan aggressively framed the “typo” as a “mistake” and implied it raises questions about the accuracy of Zimmer’s record keeping.

Sultan then grilled Zimmer on why his records describe only two pieces of evidence -- shell casings and a towel -- as being removed from the crime scene, when other pieces -- including a baseball hat and a marijuana blunt -- were also taken. Zimmer responded that he only recorded what he had been told, thus implicitly admitting that the record keeping may not have been complete.

It is unclear how jurors weighed Sultan’s questioning of Zimmer and the other law enforcement witnesses. On one hand, Sultan effectively showed the crime scene was very busy and that debatable choices were made. On the other hand, jurors may have felt that Sultan overstated some of the alleged crime scene defects, most of which seemed to be of limited consequence. Sultan needs to be careful not to lose the jurors, who may be less inclined to believe him on more significant matters if they believe he is exaggerating the impact of minor points.

And then there were 16

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Meanwhile, Judge Susan Garsh announced on Wednesday that a second juror has been excused from the trial. The reason for the excusal was not given, other than that it concerned a personal matter and was unrelated to the trial. Last week a juror was dismissed for discussing the trial outside of the jury. It is not uncommon, particularly in a lengthy trial, for some jurors to become unavailable due to personal circumstances or to be deemed unfit to serve. Alternate or “extra” jurors are selected at the start of a trial with this very risk in mind.

There are now 10 women and six men on Hernandez’s jury. Twelve will be randomly picked to determine whether they believe, beyond a reasonable doubt, that Hernandez is guilty or not guilty on each of the six charges (murder and five weapons charges). Hernandez can only be convicted on a charge if the 12 jurors unanimously agree. 

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.