Aaron Hernandez Murder Trial Could Hinge on Cigarette Butt, Bubblegum


The trial of Aaron Hernandez for the murder of Odin Lloyd is a murder trial without a murder weapon or an eyewitness. Bristol County (Mass.) prosecutors nonetheless believe they can secure a conviction by convincing jurors of two crucial points: Hernandez was at the crime scene and Hernandez wanted Lloyd dead. Prosecutors have not yet established why Hernandez would have wanted Lloyd killed, but on Friday—the 22nd day of the trial—prosecutors advanced their contention that Hernandez was with Lloyd when Lloyd was shot. They did so mainly through the testimony of Diane Fife Biagiotti, a forensics expert at the Massachusetts State Police crime laboratory. Biagiotti testified that a cigarette butt—an item that has also been described as a marijuana blunt—found at the industrial park where Lloyd’s body was found contained Hernandez’s DNA and possibly Lloyd’s DNA as well.

The apparent positioning of Hernandez with Lloyd at the time of death obviously does not prove that Hernandez shot Lloyd. Nor would a butt with the DNAs of Hernandez and Lloyd prove that Hernandez contributed in any way to Lloyd’s death. In fact, such a finding might only indicate that Hernandez and Lloyd smoked marijuana together during the early morning hours of June 17, 2013. This would not be an unusual or suspicious occurrence, either, as the two men smoked marijuana together with regularity. Lloyd, in fact, was Hernandez’s so-called “blunt master.”

The finding of the butt is nonetheless problematic for the defense. This is mainly because Massachusetts permits criminal convictions based on a “joint venture” theory. Under joint venture, a defendant can be convicted for murder so long as he substantially contributed to the crime and shared in the intent. This means that prosecutors do not need to convince jurors that Hernandez shot Lloyd in order to convict Hernandez of murder. Hernandez could instead be convicted if jurors conclude that Hernandez actively helped another person, such as co-defendant Carlos Ortiz or co-defendant Ernest Wallace, carry out the shooting. While the mere finding of a butt located near Lloyd’s body doesn’t establish Hernandez aided in Lloyd’s death, jurors might find it suggestive that Hernandez was somehow “involved.” Ultimately, how jurors weigh the circumstantial evidence presented in the trial hinges on how those same jurors imagine what happened the night of the murder.

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Hernandez’s legal team wages war on the prosecution’s DNA evidence through bubblegum

Could a wad of chewed blue cotton candy bubblegum become the central fact in the trial? This unlikely scenario became more plausible on Friday as Hernandez attorney James Sultan invited jurors to question why investigators failed to perform DNA testing on a very important piece of bubblegum. Sultan also suggested that Hernandez’s alleged DNA on the bubblegum might have “transferred” to a shell casing of a bullet allegedly used to kill Lloyd.

The bubblegum and shell casing have repeatedly emerged as topics during the trial. The bubblegum, shell casing and other items were by found by Keelia Smyth, an Enterprise manager, while cleaning a Nissan Altima rented by Aaron Hernandez. Smyth discarded these items into a nearby dumpster. When police went to retrieve them from the dumpster, the bubblegum had stuck to the shell casing.

These same items were in focus on Friday, particularly during the testimony of Biagiotti. She testified that the shell casing contained Hernandez’s DNA. On the surface, this was highly damaging testimony since it is suggestive of Hernandez’s involvement in Lloyd’s shooting. But on cross-examination Sultan succeeded in getting Biagiotti to concede three mitigating points: 1. curiously, the bubblegum wasn’t subjected to DNA testing; 2. Hernandez’s DNA on the shell casing may have simply been transferred from the bubblegum; and 3. Biagiotti did not compare her DNA test results to the DNA of co-defendant Wallace because law enforcement did not share his DNA. Collectively, these concessions raised questions about the quality and completeness of the DNA evidence implicating Hernandez.

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Cell phone triangulation locates Lloyd, but Hernandez defense raises question of biased evidence

Earlier on Friday, Patrick Quinn, an engineer for T-Mobile, authenticated call and text records associated with Lloyd’s phone. Quinn explained which cell towers were connected to Lloyd’s phone on the night of his murder. The triangulation of Lloyd’s phone with cell towers revealed his phone connected to a tower several hundred yards from where his body was found. Quinn’s testimony also addressed the movement of Lloyd’s phone across distances. This helped to establish Lloyd’s location as consistent with the timeline offered by prosecutors.

Quinn revealed additional details while under cross-examination that might raise questions about the prosecutor’s timeline and also help to corroborate the defense’s portrayal of Hernandez as a victim of false accusation. Sultan conducted the cross-examination of Quinn, who admitted there were a number of “communications” on Lloyd’s phone while there was no cell tower communication. This was the result, Quinn explained, of Lloyd’s phone shifting to an LTE (Long-term evolution) band. Quinn also acknowledged that Lloyd made numerous phone calls and texts to different phone numbers between midnight and 2:30 a.m. on June 17, 2013 (Lloyd was killed at approximately 3:25 a.m.). While the frequency of calls and texts right before Lloyd’s death do not prove there is more to the story than prosecutors contend, those calls and texts could give jurors something to think about.

The most compelling admission by Quinn during cross-examination occurred when he told Sultan the Bristol County District Attorney’s office prepared a cell tower location presentation for him, which he used to prepare for the trial. “So they put together the presentation that they wanted you to make in court,” Sultan antagonistically asked Quinn. “Yes,” Quinn replied. Quinn’s acknowledgement seemed counterintuitive. After all, wouldn’t the expert on cell phone tower locations share his cell tower findings with law enforcement rather than the other way around? While Quinn carefully explained that he confirmed the law enforcement’s cell phone tower findings, the sequence of events may not have matched up with jurors’ expectations. Sultan also repeatedly noted that this presentation is not in evidence and thus not subject to confrontation, thus implying it may be biased against Hernandez.

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Jurors will hear that Ernest Wallace’s DNA sample was not taken

Without jurors present, Sultan convinced Judge Susan Garsh to rule that jurors should be able to learn that prosecutors did not take a DNA sample of co-defendant Wallace. Sultan and Bristol County assistant district attorney Bill McCauley disagreed over whether Wallace had offered to provide a DNA sample and whether the Bristol County DA’s office refused. Without Wallace or his legal counsel present, it was impossible to know which account was correct. Regardless, Judge Garsh ruled that Hernandez’s attorneys can attempt to show a deficiency in prosecution of Hernandez by illuminating the absence of Wallace’s DNA.

This is a potentially significant ruling because Hernandez’s attorneys have consistently claimed law enforcement decided to blame Hernandez in the immediate aftermath of Lloyd’s death. Hernandez’s attorneys further posit that law enforcement has discounted or ignored evidence that someone else might have killed Lloyd. Along those lines, Wallace and Ortiz were not charged as co-defendants in Lloyd’s murder until April 2014—approximately 10 months after Hernandez was charged. It is believed that prosecutors tried to reach a plea deal with either Wallace or Ortiz to testify against Hernandez, but that Wallace refused and Ortiz could not be trusted. Watch for Hernandez’s attorneys to suggest to jurors that the failure of prosecutors to take Wallace’s DNA voluntarily (or the failure to seek a court order to get the DNA) supplies additional evidence of a desire by law enforcement to not seek the true story.

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.