Babysitter's testimony key to Day 23 of Aaron Hernandez murder trial

Aaron Hernandez's former babysitter, Jennifer Fortier, provided explosive testimony in Day 23 of Hernandez's murder trial.
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What were co-defendants Ernest Wallace and Carlos Ortiz doing at the North Attleboro (Mass.) mansion of Aaron Hernandez only a few hours before Odin Lloyd was brutally executed? Jurors on Monday watched home surveillance video of Wallace, Ortiz, Hernandez, Shayanna Jenkins and nanny Jennifer Fortier during the early morning hours of June 17, 2013. Hernandez’s home featured multiple cameras—including of the driveway, walkway, front door, foyer and living room—and they detailed movement and interactions. The video clearly showed Wallace and Ortiz removing or adding items to a silver Nissan and the two men later engaging in discussions with Hernandez, who wore the white hooded sweatshirt later recovered by police. The video also showed Hernandez in his living room holding a blurry black item that might have been a gun, but might have been a TV remote or something else instead.

For Bristol County (Mass.) prosecutors, the surveillance video provides crucial evidence on at least two fronts. First, the video supports the prosecutors’ proposed timeline that the three co-defendants met at Hernandez’s home before departing to pick up Lloyd at his Boston home and later murder him. Second, the video shows behavior that will surely raise jurors’ suspicions.

Testimony by Fortier, the nanny of Hernandez’s infant daughter, Arielle, could substantially hurt Hernandez's case. She testified that she babysat at Hernandez’s home about 15 times during the preceding two months and had never before seen Ortiz. Prosecutors hope jurors surmise that Ortiz was brought in to help Hernandez and Wallace carry out the crime. Fortier also told jurors that she had only once seen Lloyd at Hernandez’s home, and it occurred while he was with his girlfriend, Shaneah Jenkins (sister of Hernandez’s fiancée). Jurors might wonder why if Lloyd was—as Hernandez’s attorneys insist—Hernandez’s “blunt master,” he wouldn’t have been at Hernandez’s home more often.

TRIAL COVERAGE: Opening statements | Day 18 | Day 19 | Day 20 | Day 22

Jurors also saw Wallace and Ortiz spend an unusual amount of time around the Nissan and its trunk. Also, Wallace and Ortiz are shown moving in and around Hernandez’s home with noticeable purpose. Their behavior seemed odd, especially given that it was past midnight.

Defense: Surveillance video doesn’t prove anything

While the surveillance video could be interpreted to show that Hernandez, Wallace and Ortiz were planning Lloyd’s murder, it could also be interpreted to reveal absolutely nothing about a murder. First, the video contains no audio, which means jurors have no idea about the contents of any conversations that took place.

Second, the mere fact that Fortier had never before seen Ortiz does not mean he was brought in to help kill Lloyd. Fortier had only been working for Hernandez and Jenkins for about two months, which indicates she likely hadn’t met many of their friends and acquaintances.

Third, the alacrity at which Wallace and Ortiz moved does not establish anything other than that they moved in and around Hernandez’s home at a particular pace. Jurors might also utilize the fact that the three co-defendants reportedly smoked marijuana with high frequency as a lens over what they witnessed on the video. Along those lines, it would have made sense for Wallace and Ortiz to remove any marijuana-related materials from a rental car that would be returned to Enterprise Rent-A-Car hours later (on the other hand, there is evidence suggesting that Hernandez later smoked marijuana next to the rental car while at the crime scene).

Fourth, some of Hernandez’s conduct on the video does not seem suggestive of a person who would murder another man a few hours later. Hernandez and Jenkins arrive home on the video after spending the evening at the Broad Street Café in Providence (RI) with friends. Earlier testimony in the trial indicated that Hernandez raised a toast for Father’s Day and spoke kindly about his daughter while dinning at the restaurant. On the surveillance video, Hernandez appears to be talking to his daughter and smiling, as a typical father would with his infant child. Also, while there is an image of Hernandez holding a black item in his living room, the image is too blurry to determine what it is. Fortier did not recall what Hernandez was holding. This is revealing in that if Fortier saw Hernandez hold a gun in the living room, she would seem more likely to remember that than if she saw him hold a TV remote.

Fortier implicates Hernandez as unfaithful to his fiancée

The most explosive testimony on Monday came when Fortier described an unwanted trip to Hernandez’s co-called “flophouse” in Franklin (Mass.) where she and Hernandez briefly kissed while Lloyd was in an adjacent room.

The trip to the flophouse originated when Fortier and her friend Amanda DiVoto drove into Boston on the evening of Friday, June 14, 2013 to visit various bars and clubs, including Tequila Rain and the Royale Boston Nightclub. While walking past the W Hotel on Stuart Street in Boston at about 2 a.m., Fortier noticed Hernandez parked out front in a black SUV. Fortier also noticed a man (later identified as Lloyd) in the car. Fortier testified that she said hello to Hernandez and then Hernandez invited her and DiVoto to hop into the car. While inside the car, Fortier sat next to another man seated in the rear passenger seat. She asked Hernandez to drive her and DiVoto to DiVoto’s car, which was parked a few blocks away.

Hernandez, according to Fortier, instead drove in the opposite direction and eventually onto the highway out of Boston. Fortier, who testified that her cell phone battery was dead during the joyride, claimed she repeatedly asked Hernandez to drive her back to the car and at one point told him, “I’m not comfortable.” Hernandez, according to Fortier, disregarded her request and drove for about an hour. Hernandez would drove to North Attleboro where he dropped off a passenger. With Fortier, DiVoto and Lloyd as passengers, Hernandez then drove to the flophouse.

While in the flophouse, Fortier said Hernandez asked her to join him in the bedroom and sit on the bed. Hernandez then kissed Fortier, who testified that she kissed him back but then told him “no” and he immediately stopped and said he understood. While Hernandez and Fortier briefly kissed, Lloyd was in the adjacent living room seated on a couch with DiVoto. Hernandez, who had smoked marijuana throughout the evening and may have also consumed wine, then passed out. Fortier and DiVoto then called a cab and left the flophouse.

While the flophouse kiss appears unrelated to Lloyd’s murder, it is nonetheless significant for a few reasons. First, it reflects poorly on Hernandez’s character, particularly in regards to his treatment of women. Generally, character evidence is inadmissible in a trial unless the defendant voluntarily makes his character an issue. Here, Fortier’s testimony about kissing was admissible because it occurred while Hernandez was with Lloyd two days before Lloyd’s murder. Fortier’s testimony portrays Hernandez as not only unfaithful to Jenkins, but also disrespectful to Fortier. Hernandez knew Fortier wanted a ride to her friend’s car, yet instead took her on a joyride out of town. Hernandez also kissed Fortier, who worked for him, and although Hernandez immediately stopped when he was told “no,” Fortier’s testimony signaled she didn’t want him to kiss her in the first place. Fortier’s account could damage how the jurors, who are mostly women, view Hernandez’s character.

Second, Hernandez has thus far maintained the loyalty of Jenkins (who reportedly was not in court today), but testimony that he kissed another woman presumably won’t help. Prosecutors gave Jenkins immunity in hopes that she will testify and say that Hernandez gave her the murder weapon to dispose of, but Jenkins appears unwilling to cooperate. If she refuses to testify about her conversations with Hernandez in the hours after Lloyd murder, she can no longer effectively plead the Fifth Amendment (since she can no longer self-incriminate) and Judge Susan Garsh would probably order Jenkins to jail for contempt of court. In all likelihood, Jenkins was already aware of what Fortier would say in court today. Still, knowing that something upsetting will be said and then it actually being said feel like two different things.

Third, and more speculatively, jurors might wonder if Hernandez was worried that Lloyd would tell either Shaneah or Shayanna Jenkins or others about Hernandez and Fortier kissing. Lloyd was in the adjacent room and was presumably aware of what happened in the bedroom. The prosecution has yet to establish why Hernandez would want Lloyd dead, but today’s testimony may offer a preview.


Fortier testifies Hernandez and Lloyd seemed like great buddies during the joyride

During cross-examination, Fortier acknowledged that Hernandez and Lloyd were having a great time during the joyride. The two men, she said, smoked from the same marijuana blunt, sang lyrics to rap songs and laughed at jokes. She added that while in the flophouse, Hernandez and Lloyd brought out wine and continued to smoke marijuana. Fortier’s testimony indicated to jurors that Hernandez and Lloyd seemed to be on very good terms as recently as two nights before Lloyd’s murder.

While most of Fortier’s testimony was damaging to Hernandez’s defense, her portrayal of Hernandez and Lloyd as buddies supports the defense’s theory that Hernandez genuinely liked Lloyd and would never hurt him.

Conflicted testimony about Fortier's signing of a non-disclosure agreement, prosecutorial influence

Fortier, who was on the stand for several hours, also discussed how a friend of Shayanna Jenkins asked Fortier to sign a non-disclosure agreement only a day after Lloyd’s murder. Prosecutors hope jurors find the request and its timing suggestive of Hernandez’s guilt: Why would Hernandez, through his fiancée, ask Fortier to keep quiet so soon after Lloyd’s death?

During cross-examination, however, Hernandez attorney Michael Fee asked Fortier to clarify the origin of the non-disclosure agreement. Fortier acknowledged that Jenkins first asked her to sign the agreement when Fortier began working for Jenkins and Hernandez in April 2013. This acknowledgment reduced the suspicion associated with the non-disclosure agreement.

Fee, in perhaps his best work yet in the trial, also led Fortier to portray her testimony as heavily guided by prosecutors. She admitted that she has met with prosecutors numerous times, including four or five times since September 2014. She insisted, however, that prosecutors have never told her what to say.

Fortier also referred to the lead prosecutor, Bristol County assistant district attorney William McCauley, as “Bill”—first name only—when answering a question posed by Fee. This was a remarkably informal way to describe a prosecutor while in court, and may have signaled to jurors that Fortier had met so often with prosecutors that she began referring to them by their first name. Or, it might have only signaled that Fortier is not as aware of court customs in how to reference prosecutors.

Government DNA expert admits Hernandez’s DNA on marijuana blunt doesn’t prove he was at crime scene

In other testimony, Massachusetts State Police forensics expert Diane Fife Biagiotti was back on the stand for cross-examination. Hernandez attorney James Sultan asked her why her lab uses the “Identiflier” DNA testing kit instead of updated and superior versions “Minifiler” and “Identiflier Plus” used by other crime labs. Sultan wanted jurors to believe that because her lab uses an older technology to test DNA, the results are less reliable.

Sultan also asked about the marijuana butt found at the crime scene, and how DNA evidence indicates that both Hernandez and Lloyd smoked from it. Biagotti acknowledged that it is unclear who smoked the blunt first or last, and it is similarly uncertain whether Hernandez might have smoked from the blunt earlier in the evening. The butt, in other words, doesn’t prove Hernandez was at the crime scene since he might have smoked from the blunt earlier in the evening.

Lastly, Sultan asked Biagiotti about the shell casing found in the dumpster next to Enterprise Rent-a-Car covered in bubblegum. She admitted there is a probability that DNA found on the bubblegum that later adhered to the shell casing contaminated the shell casing. This was a crucial point: Hernandez’s attorneys want jurors to believe that Hernandez’s DNA on the shell casing came not from touching the casing but rather from bubblegum he had earlier chewed.

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.