Friday could prove to be the most crucial day yet in the trial of Aaron Hernandez for the murder of Odin Lloyd. The Associates Press reports that Bristol County (Mass.) prosecutors will call Hernandez’s fiancée, Shayanna Jenkins, to the witness stand on Friday.
Jenkins may hold the key for prosecutors to link Hernandez to the murder. According to the prosecution’s theory, Hernandez used coded text messages to instruct Jenkins to dispose of the murder weapon, supposedly a .45-caliber Glock pistol. Surveillance video from Hernandez’s home a day after Lloyd’s murder clearly shows Jenkins carrying a trash bag to the trunk of a car parked in Hernandez’s driveway. The exterior of the bag arguably indicated a box-like item inside, and this item could have been an ammunition box. Then again, the item inside could have been numerous other box-like items instead. Jenkins then drove the car, which had earlier been driven by her sister—Shaneah Jenkins, who was Lloyd’s girlfriend—away from the driveway. The trash bag is never recovered, a potentially suspicious point. On the other hand, most trash bags aren’t recovered.
In addition to the trash bag incident, prosecutors allege that Jenkins received and acted upon orders from Hernandez while he was in jail to supply various forms of financial and strategic assistance to individuals who could testify against Hernandez. Put another way, these witnesses were supposedly bought off by Hernandez through Jenkins to keep quiet.
[daily_cut.NFL] Hernandez’s attorneys regard the prosecution’s theories about Jenkins to be completely unfounded and speculative. Hernandez’s attorneys contend prosecutors have invented a movie-like storyline designed to trick jurors into blaming Lloyd’s death on the celebrity, Hernandez. Portraying Jenkins, the fiancée, as part of a grand conspiracy is part of the script. Along these lines, some of the incriminating evidence related to Jenkins could be explained as ordinary and innocent. The surveillance video shows a trash bag, not a gun or ammunition box. And communications conveyed by a jailed Hernandez to Jenkins do not expressly prove anyone was bought off.
Still, if Jenkins testifies and gives jurors the impression that she partook in a conspiracy, it would constitute a highly damaging development for Hernandez’s defense. This is particularly true in Massachusetts, which permits “joint venture” as a theory to convict someone of a crime. This theory would allow for jurors to convict Hernandez for the murder of Lloyd even if they don’t believe he shot Lloyd. Hernandez actively helping to cover up Lloyd’s murder by getting his fiancée to dispose of the murder weapon could constitute sufficient evidence of a shared intent by Hernandez and co-defendants Ernest Wallace and Carlos Ortiz to murder Lloyd.
Role of immunity
Adding worry to Hernandez’s attorneys is the fact Jenkins has been granted immunity in her testimony. Immunity for a witness is often regarded a positive step for the witness, but for Jenkins it is unwanted. While the specific terms of Jenkins’s immunity have not been made public, it is thought that she would not face prosecution if she testified to playing a conspiratorial role in the murder of Lloyd. Jenkins would thus avoid prosecution for several felonies, including accessory after the fact, conspiracy and obstruction of justice. If convicted of these felonies, Jenkins—a mother of a three-year old child whose father could spend the rest of his life in prison—would face the prospect of spending more than two decades in prison.
If called to testify, Jenkins could adopt one of four strategies, but could not use two other strategies that have received some media attention.
1. Jenkins testifies and tells the whole truth and nothing but the truth
The truth may be what Hernandez’s attorneys contend: Jenkins played no role in covering up a crime because Hernandez played no role in the crime. Perhaps Jenkins carried out a trash bag because she wanted to throw out the trash. Perhaps she helped out cousin Tanya Singleton’s sons because Hernandez, who was a father figure to Singleton’s sons, was genuinely worried about the boys’ welfare while their mom was in prison and stricken with terminal cancer.
Alternatively, the truth could match the prosecution’s theory outlined above. Maybe Jenkins, whom a housekeeper testified normally didn’t take out the trash and whom witnesses described as anxious, threw out an ammunition box and the murder weapon. Maybe she helped out witnesses to keep them quiet. If the truth is along these lines, Jenkins would make it much more likely that Hernandez is convicted.
Whatever the truth, Jenkins would not face prosecution if she testifies honestly.
2. Jenkins testifies and knowingly lies
Jenkins could testify and lie in response to questions by prosecutors. Presumably she would do so to portray Hernandez as innocent.
If Jenkins adopts this strategy, she would run the risk of being charged with perjury. Jenkins already faces perjury charges stemming from her grand jury testimony. She would face additional charges and a longer potential prison sentence if convicted. Under Massachusetts law, a defendant convicted of committing perjury in a murder case can face up to life in prison. It is unlikely a judge would impose such a sentence, but Jenkins would be looking at serious time behind bars if she perjures herself.
On the other hand, prosecutors often struggle to prove a defendant is guilty of perjury. There are various defenses to perjury, including that a lie was not knowingly made or that there was confusion in understanding and answering a question while under oath.
3. Jenkins testifies and claims to 'not remember'
Hernandez’s cousin Jennifer Mercado testified on Tuesday and Thursday and curiously showed a faulty memory on certain topics that might implicate Hernandez. Jenkins could also testify and claim to “not remember.” Lloyd’s murder occurred 21 months ago, which could allow for a plausible argument that too much time has elapsed for Jenkins to remember what happened.
It is difficult, but not impossible, for prosecutors to charge Jenkins with perjury if she adopts the “I can’t remember” defense. The difficulty rests in the fact that it is extremely challenging to get inside the head of a witness and prove they lied when claiming to not remember. Then again, former chief of staff to Vice President Dick Cheney, Scooter Libby, claimed he could not remember information relating to the leak of a CIA operative's identity, but jurors still convicted him of perjury and other counts because they did not believe him.
4. Jenkins refuses to appear in court or refuses to answer questions while under oath
Jenkins could refuse to show up at court on Friday, or appear and take the stand but then refuse to answer questions. If she does so, Judge Susan Garsh would likely hold her in contempt of court and jail her until the end of the trial. This would mean Jenkins spends about a month in jail.
5. Not viable: Jenkins pleading the Fifth Amendment
The Fifth Amendment allows witnesses to refuse to answer questions on grounds their answers could incriminate them. By being granted immunity, however, Jenkins cannot incriminate herself by admitting to playing a conspiratorial role. Judge Garsh would likely instruct her that pleading the Fifth Amendment is not permitted.
6. Not viable: Jenkins marries Hernandez Thursday night or Friday morning and then claims spousal privilege to avoid answering questions
This spousal privilege strategy is not viable for a number of reasons, including that the spousal privilege in Massachusetts only covers communications while a couple is married and not before their marriage. The relevant communications in this case occurred in 2013 and 2014. Massachusetts does not recognize common law marriages, so there is no way Hernandez and Jenkins could claim they were married by holding themselves out as a married. They needed a marriage license and didn’t have one. Also, the privilege only covers communications, not observations, meaning Jenkins could still be asked about what she observed while watching Hernandez.
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.