Boston Globe/Getty Images

On Day 8 of the Aaron Hernandez trial, Judge Susan Garsh approved the use of a piece of evidence that could prove pivotal for the prosecutors' case.

By Michael McCann
February 13, 2015

Why would Aaron Hernandez suddenly shatter a cell phone into three pieces only a day after Odin Lloyd’s body was found dead? Jurors will soon ask this question, as Superior Court Judge Susan Garsh ruled on Friday that Bristol County (Mass.) prosecutors are allowed to introduce a potentially damaging video of Hernandez. A surveillance camera located in a parking lot next to the North Attleboro (Mass.) police station recorded the video in the days following Lloyd’s murder. In one segment of the video, Hernandez is shown standing and then demolishing a phone. In another segment, Hernandez is in a car and is then handed a new phone by one of his attorneys. Using the new phone, Hernandez dials and places a call, which is allegedly directed to Ernest Wallace, an accused accomplice and co-defendant.

Hernandez’s attorneys urged Judge Susan Garsh to suppress the video. They claimed Hernandez’s behavior was protected by the attorney-client privilege since he was in the presence of his attorneys and receiving their advice. Garsh disagreed, reasoning that because the parking lot was a public setting and in plain view, Hernandez implicitly consented to being recorded. She also regarded the act of an attorney handing a phone to a client as not constituting legal advice. Prosecutors have not indicated when they plan to show jurors the video, but it will almost certainly be shown.

The legal impact of the video could be significant. While video of Hernandez breaking a phone and making a call to a person who is also connected to Lloyd’s death is by no means conclusive of guilt, jurors will likely regard Hernandez’s behavior as suspicious—if not worse. After all, why would Hernandez try to destroy his phone? A fair presumption would be that it contains information that could be incriminating.

TRIAL COVERAGE: Opening statements | Day 4 | Day 5 | Day 6 | Day 7

Watch for Hernandez’s attorneys to attempt to diminish the impact of the video by claiming they instructed Hernandez to break the phone and they encouraged him to call Wallace. This would constitute a “blame the lawyers, not the client” type of defense. Hernandez’s attorneys might explain that because they were concerned about the police falsely accusing Hernandez, they recommended he replace his phone since its calls could have been monitored. One tactical hurdle for Hernandez’s attorneys in making this kind of defense is that they are unlikely to call Hernandez as a witness. A second hurdle is that an attorney is ethically barred from advising clients to destroy evidence. As a result, Hernandez's attorneys would have to frame Hernandez destroying the phone as him misunderstanding their directive​.

Judge Garsh’s decisions on the admissibility of the video and other evidence are important not only for this trial but for a potential appeal. Should Hernandez be convicted, his attorneys would be poised to cite Garsh’s decision to admit this video, along with other pieces of evidence, as constituting a legal error. Hernandez’s attorneys would need to identify alleged mistakes made by Judge Garsh in interpreting and applying relevant areas of law (for example, evidence law and attorney-client privilege) in order to advance an appeal.

Gun found near the location of Odin Lloyd’s body

There were other significant developments in Judge Garsh’s chambers on Friday. Massachusetts State Police trooper Stephen Gallagher, one of many police officers dispatched to the industrial park where Lloyd’s body was found, told jurors that a .22 caliber pistol was discovered buried in a wooded area near the location of Lloyd’s body. The discovery was made as officers conducted a “line search,” where approximately 10 officers walked “shoulder-to-shoulder” in order to conduct a detailed scan of the terrain for evidence. Gallagher testified that while “the topography was tough” due to rocks and debris, officers found the gun through leaves. Photographs of the gun showed it had been discolored by rust and other environmental conditions.

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

To be clear, the .22-caliber pistol is not considered the gun used to shoot Lloyd, whom prosecutors say was shot by a .45-caliber Glock pistol. Nonetheless, the .22-caliber pistol could prove influential for the prosecution. First, the .22-caliber pistol may be the same .22-caliber handgun that was reportedly found near the crime scene and is connected to Oscar Hernandez (no relation to Aaron). Oscar Hernandez is an alleged friend of Aaron Hernandez who recently cut a deal with prosecutors and pleaded guilty to gun and perjury charges. Oscar Hernandez is listed as a possible witness for the prosecution and, particularly if he has agreed to implicate Aaron Hernandez, could emerge as a key figure in the prosecution’s case.

Second, if Aaron Hernandez’s DNA is found on the .22-caliber gun, it would directly link him to a firearm found at the murder scene and would suggest that he or someone with him tossed the gun while fleeing the scene. Third, if reliable photographs of Hernandez with the same type of gun exist, jurors would be inclined to associate him with the gun.

Watch for the .22-caliber gun, and potential witnesses linked to it, to play an important role in the weeks ahead.

The uneasy first conversation between Hernandez and police after Lloyd’s body was found

The most dramatic testimony of the day occurred when North Attleboro Police detective Dan Arrighi took the stand. Arrighi testified that law enforcement became interested in speaking with Hernandez on June 17, 2013. This reason: Police officers ran car keys found on Lloyd’s body and they corresponded to a car rented by Hernandez.

Even with immunity, no guarantee that Hernandez fiancée testifies

​After identifying the keys as belonging to Hernandez’s rental agreement, Arrighi and a Massachusetts State trooper drove over to Hernandez’s home. They arrived at around 9:40 p.m. and approached his front door. As confirmed by Hernandez’s home surveillance video, the officers rang the doorbell at around 9:45 p.m. but no one answered. Seeing cars parked in Hernandez’s driveway and lights on in his house, the officers peeked into Hernandez’s windows, then canvassed the perimeter of his house and took a glance into the garage. Arrighi and the state trooper then walked over to the home of a neighbor, who happened to be New England Patriots assistant coach Joe Judge. Judge attempted to get Hernandez’s cell phone number for them. The officers then went back to their car and watched for activity inside the house.

According to Arrighi, Hernandez walked out of his house at around 10:30 p.m. He and Arrighi greeted in the driveway and shook hands. They began a brief conversation during which Hernandez said he had been monitoring the officers through his home surveillance system. Hernandez, according to Arrighi, also referred to Lloyd as “my boy O” during the conversation. As Arrighi asked Hernandez more and more questions related to Lloyd, Arrighi testified that Hernandez “became agitated” and angrily walked away.

Hernandez, however, agreed to drive over to the North Attleboro Police Station along with his fiancée, Shayanna Jenkins, and their baby daughter. After dropping off Hernandez at the police station, Jenkins began to drive home. Arrighi and the state trooper followed Jenkins, however, and pulled her car over at 11 p.m. even though no traffic infraction had occurred. Arrighi said the pair wanted to speak with Jenkins and asked her to return to the police station.

Hernandez attorney James Sultan conducted a very combative cross-examination of Arrighi. Sultan forced Arrighi to acknowledge important and arguably exonerating details about the circumstances of the visit to Hernandez’s home, including:

Retired players who opt out of NFL concussion settlement taking big risk

Arrighi and the state trooper were not wearing police uniforms when they visited Hernandez’s home. Instead, they were wearing shirts and ties, although the state trooper’s badge and gun were apparently visible on his belt. Sultan described the outfits as “civilian clothing,” whereas Arrighi characterized them as “business attire.” Regardless, Sultan suggested the two cops might not have looked like cops, especially so late at night.

• ​The officers waited in an unmarked Ford Escape. This arguably could have made them seem suspicious to Hernandez and his fiancée, particularly given that Hernandez used drugs and perhaps interacted with drug dealers.

• ​The officers had no invitation to walk around the perimeter of Hernandez’s home and no search warrant. Sultan wants jurors to conclude the officers acted more like trespassers than officers.

• ​It was late at night and thus an unusual, if not altogether inappropriate, time for officers to knock on the door of someone’s home. Sultan hopes jurors imagine being home and hearing loud knocks on their door at around 10 p.m. They may not answer the door and could wonder if the person or persons knocking are a threat.

• Hernandez was under no legal obligation to answer the door. This is an obvious but important point: Citizens have no legal duty to answer their door when there is a ring or knock.

Sultan also chastised Arrighi for pulling Jenkins’ car over given that it was 11 p.m. and that he knew she had a baby in the car. Sultan framed Arrighi as over-aggressive and insensitive, whereas Arrighi insisted he followed procedures and was being thorough.

It will be interesting to see whether Sultan’s line of questioning has any traction with jurors, or if they instead regard Hernandez as acting suspiciously once police officers neared.

Lingering questions about the crime scene

Hernandez’s attorneys spent much of Friday continuing their assault on the credibility of evidence found at the crime scene and the competency of law enforcement officers who were entrusted with recording and safeguarding the evidence. This strategy was particular apparent in Sultan’s aggressive cross-examination of Arrighi. Sultan implicitly ridiculed Arrighi’s credentials as inadequate and out-of-date. In response to Sultan’s questions, Arrighi acknowledged that the last time he received training in evidence collection was in 1986. He also admitted that a general photography course in 1999​ was his only training in photography. In Arrighi’s defense, he has 15 years of experience as a detective, thus suggesting his lack of coursework may be unimportant.

Planet Futbol
In pursuit of free agency, players could challenge MLS as single entity

Still, questions about credentials were relevant because Arrighi collected three key pieces of evidence at the murder scene: a Red Sox cap located a few feet from Lloyd’s head, five shell casings and a marijuana blunt. Arrighi also photographed footprint impressions near Lloyd’s body. Arrighi admitted he is not an expert in photography and that he didn’t use a tripod or an external light source to take the photos. Sultan appeared to annoy Arrighi when showing that photos taken by Arrighi arguably revealed more than two footprints, the number Arrighi had logged in his report. Sultan clearly wants jurors to regard the crime scene evidence as inaccurate and unreliable.

Sultan also questioned why Arrighi didn’t measure the distance between Lloyd’s body and key pieces of evidence, including the shell casings and the blunt. Arrighi responded that he made sensible estimates and was also pressed for time due to an impeding storm. Sultan, however, prodded Arrighi into acknowledging that he had to revise at least one estimate.

Sultan’s strategy of trying to undermine the work of law enforcement was apparent with other witnesses as well. For instance, when cross-examining Sargent Edward O’Hara of the Massachusetts State Police, Sultan asked him about the capacity of the police to map recovered items of evidence. O’Hara noted that the equipment is sophisticated and precise. Yet, as shown in other witnesses’ testimonies, human estimations were made for some placements of evidence. Sultan also challenged state trooper Gallagher, who found the .22-caliber pistol, to explain why officers didn’t immediately search the other side of the road where the gun was found.

Legal significance of Hernandez and Jenkins often renting cars

While most of Friday’s proceeding featured law enforcement witnesses, one exception was Edward Thomas Brennan Jr., an assistant manager at Enterprise Rent-a-Car who testified on behalf of the company. His main function as a witness was to authenticate rental transactions. Brennan’s testimony was important because Hernandez and Jenkins frequently rented cars from Enterprise.

While much of Brennan’s testimony involved confirming the validity of car rental agreements, Hernandez attorney Michael Fee used Brennan’s testimony for another purpose. Fee wanted jurors to regard Hernandez returning a rental car to Enterprise after Lloyd was killed as consistent with his normal car rental practices and thus not suspicious.

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.

Eagle (-2)
Birdie (-1)
Bogey (+1)
Double Bogey (+2)