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Verdict looms following closing arguments in Aaron Hernandez trial

The prosecution and defense each made closing arguments in the Aaron Hernandez trial on Tuesday. The jury will now deliberate to try and reach a verdict.

After nine long weeks, jurors in the trial of Aaron Hernandez for the murder of Odin Lloyd are now in control of Hernandez’s fate.

Tuesday featured three major developments. First, Hernandez attorney James Sultan and Bristol County (Mass.) assistant district attorney William McCauley each delivered 90-minute closing arguments. Second, Judge Susan Garsh instructed jurors on the relevant law for the murder charge and five firearm charges. Third, a jury foreperson (a woman) was selected and three of the 15 jurors were ruled alternates. As a consequence, five male jurors and seven female jurors will deliberate for as long as necessary to reach a unanimous verdict on each of the six counts. If unanimity is not possible, Judge Garsh would declare a hung jury on the counts where there remains disagreement. It would then be up to prosecutors to decide whether to retry Hernandez on those counts.

Closing argument: Attorney James Sultan for Aaron Hernandez

Closing arguments are the last opportunity for each side’s attorneys to make their pitch to jurors. Neither Sultan nor McCauley disappointed, with each making a convincing case. Per Massachusetts Criminal Procedure Rule 24, Sultan, on behalf of the defendant, went first followed by McCauley on behalf of the Commonwealth of Massachusetts.

Sultan’s closing argument hit at several key themes and centered on raising doubt rather than proving Hernandez’s innocence.

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​First, Sultan warned jurors to block out any opinions or news they’ve heard about the trial and the charges. While Judge Garsh warned jurors each day to avoid watching, listening or reading trial commentary, Sultan likely sensed that in our technological era of instant communication and pervasive social media, it’s conceivable jurors might have heard a thing or two since January. “​Let's not kid ourselves,” Sultan reflected, “there has been plenty of stuff out there about Aaron and about this case.” He then stressed to jurors their legal duty to reach an impartial verdict. Sultan pleaded for jurors to not “flush our Constitution down the drain” by letting others “contaminate” jury deliberations.

A second major theme in Sultan’s closing was that the prosecution failed to introduce a sensible motive for Hernandez to have wanted Lloyd dead. To be clear, motive is not an element of murder, but jurors usually want to know what was going through the head of the defendant. From Sultan’s perspective, Hernandez never had a thought to kill Lloyd. At one point Sultan asked jurors, “If Aaron had any reason to kill Odin, wouldn't you have heard about it over the last nine weeks?"

Sultan also ridiculed theories of motive suggested by the prosecution. One theory emerged during the testimony by former Hernandez friend Alexander Bradley, who recalled Hernandez calling Lloyd “rude” for not saying hello to Bradley the first time Lloyd met Bradley. “Does the prosecution,” Sultan rhetorically asked jurors, “expect you to believe that Aaron spent six months plotting to kill Odin Lloyd because he didn't say hi?”

As another means to offset motive, Sultan reiterated a theme introduced by fellow Hernandez attorney Michael Fee during Fee’s opening statement in January: Hernandez wouldn’t have wanted to kill Lloyd because Lloyd was Hernandez’s “blunt master.” As Sultan explained, “Aaron and Odin shared a passion for marijuana,” while adding, “Odin was very skilled at rolling blunts.”

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​Sultan’s attempt to undermine a possible motive even extended to framing Hernandez as lacking good morals. Perhaps anticipating McCauley’s forthcoming remarks about Hernandez trying to kiss his child’s babysitter (Jennifer Fortier) at Hernandez’s “flop house” in Franklin, Mass., while in the presence of Lloyd, Sultan stressed that Hernandez’s fiancée, Shayanna Jenkins, was well aware that Hernandez was unfaithful and yet the two remained together in spite of his infidelity. Sultan also highlighted how Hernandez used Lloyd’s phone to text Jenkins the next morning as a way to further cement the point that any awareness by Lloyd of Hernandez’s infidelity would not have motivated Hernandez to want Lloyd dead.

Sultan then sharply criticized the work by law enforcement and prosecutors in collecting and evaluating evidence. He charged that prosecutors “were fixated on Aaron from the start” and that obsession prejudiced the investigation, which Sultan derided as “incomplete, biased and inept.” Sultan highlighted, for instance, that “nobody bothered to measure” the distance between a white towel and Lloyd’s body, and that law enforcement “never bothered to get Wallace’s DNA.” Along those lines, Sultan maintained “that’s not science—that’s scary” and that the jurors “had been snookered” by prosecutors. In reference to the work of forensic examiners, Sultan charged, “they knew exactly” what prosecutors “were looking for to convict Aaron.” Sultan several times referenced “confirmation bias,” which he defined as “when information is incomplete or ambiguous, people tend to see what they expect to see.” He claimed that confirmation bias had contaminated the investigation.

Sultan also raised doubt about Hernandez’s conduct in relationship to Lloyd’s death. He reminded jurors of testimony indicating Wallace and Ortiz may have been using phencyclidine (better known as PCP or angel dust)​ and that they were not friends with Lloyd. “Was Odin Lloyd’s death,” Sultan inquired, “the result of a sudden, violent outburst caused by someone on PCP?” Sultan also pointed out that jurors heard from 131 government witnesses but none was Wallace or Ortiz (who face future trials) despite their alleged involvement in Lloyd’s murder.

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​Sultan also surprised the court by suggesting Hernandez was, in fact, at the crime scene and that Hernandez merely panicked after “witnessing a shocking killing committed by someone he knew.” Sultan placing Hernandez at the crime scene and implying Hernandez might have helped to cover up a crime is incriminating—but only for certain crimes. Indeed, Sultan reminded jurors that Hernandez was charged with murder, which requires he shared an intent to see Lloyd killed, not accessory after the fact, which would address Hernandez’s efforts to cover up a shooting by Wallace or Ortiz.

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Further, Sultan stressed, if Hernandez had planned Lloyd’s murder, why would he have brought accomplices with him and why would Hernandez have killed Lloyd less than a mile from Hernandez’s home? Along those lines, Sultan wondered, “Why would Aaron risk ruining his promising career" to "kill a friend?"

Sultan also drew jurors' attention to the video of Hernandez emerging from his basement holding what appears to be a gun minutes after Lloyd’s death. He noted this sequence occurred after Hernandez walked down a staircase holding what may have been an iPad, thus implying that Hernandez didn’t enter his home carrying the gun. Sultan also alerted jurors to the fact that Wallace and Ortiz had walked down to the basement before Hernandez emerged from the basement. Sultan did so in hopes that jurors will reason Wallace or Ortiz must have had the gun first, and that Hernandez might have grabbed the gun to protect himself from Wallace and Ortiz.

Sultan also pleaded to the jury to remember that two wrongs don’t make a right: “Ladies and gentleman, this is a terrible case about the murder of a young man, Odin Lloyd, and an innocent man that has been charged in the murder." He also reminded them that they are charged with finding fault beyond a reasonable doubt. “You are being asked [by prosecutors] to speculate and figure things out, fill in gaps," Sultan admonished. “That’s not proof beyond a reasonable doubt."

Closing argument: Assistant District Attorney William McCauley for the Commonwealth of Massachusetts

After hearing a convincing closing statement by Sultan, jurors then heard a similarly persuasive closing by McCauley. McCauley had the tougher job in one important respect: The prosecution must prove Hernandez’s guilt beyond a reasonable doubt, whereas the defense must only raise enough doubt in jurors’ minds so they’re not certain of Hernandez’s guilt.

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​A central theme in McCauley’s closing statement was that Hernandez and Lloyd were not friends and that Hernandez seemed perfectly content after Lloyd was murdered. McCauley highlighted how Hernandez had multiple suppliers of marijuana, including Hernandez’s barber, Robby Olivares, thus suggesting that Lloyd was expendable. Additionally, McCauley drew jurors' attention to Hernandez referring to Lloyd as “family” when Hernandez spoke with New England Patriots director of security Mark Briggs a couple of days after the murder. When Hernandez made this statement, McCauley asserted, Hernandez “was [simultaneously] hosting, feeding” and helping his co-conspirators flee.

Further, McCauley twice referred to Hernandez, Ortiz and Wallace “drinking smoothies” only hours after Lloyd’s murder. McCauley also reminded jurors of video of Hernandez comfortably walking around his pool despite the death of his so-called friend Odin. McCauley’s point was intuitive and persuasive: If Hernandez was upset about Wallace or Ortiz shooting his “friend” Odin, why was Hernandez having a good time with Wallace and Ortiz after his friend’s murder? Hernandez, McCauley further stressed, never reached out to Lloyd’s family to offer condolences. This again, at least in the prosecution’s eyes, signals that Hernandez showed no remorse for Lloyd’s death because it was what Hernandez intended.

McCauley also ridiculed the defense’s suggestion that Wallace or Ortiz shooting Lloyd would have caught Hernandez off guard. Hernandez, McCauley warned, “controlled” everyone and everything in the timeline preceding and following Lloyd’s death. Hernandez, as McCauley told jurors, was the leader of the pack. McCauley also noted that Hernandez, who earned all the money, directed orders to those around him. This appeared true of Jenkins, who McCauley charged Hernandez used to “cover up” a crime.

McCauley added that testimony about the possible use of PCP by Wallace and Ortiz was made by Hernandez’s cousin, Jennifer Mercado, in an attempt, McCauley implied, to help her cousin. McCauley also raised doubts about the credentials of a key expert witness for the defense. McCauley wondered why Hernandez’s PCP expert, Dr. David Greenblatt, would offer views about a possible relationship between PCP and sudden, unpredictable violence when not one of the 780 articles Greenbelt authored or co-authored directly addressed that topic.​

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​Lastly, McCauley framed Hernandez’s decision making as clear proof of Hernandez’s plan to kill Lloyd. He noted that evidence indicated Hernandez held a Glock gun while in Miami and that Hernandez arranged for guns to be shipped to him by Oscar “Papoo” Hernandez (no relation) from Florida. McCauley further contended that Aaron Hernandez asked Lloyd to hang out with him the night of Lloyd’s murder not to obtain marijuana, but to kill him. To bolster this point, McCauley drew jurors’ attention back to testimony by Jenkins suggesting that a 30 to 40 pound box she covertly removed from Hernandez’s basement at Hernandez’s behest may have contained a large amount of marijuana. “Why would the defendant need more marijuana” from Lloyd, McCauley asked jurors, if he already had 30 pounds in the basement?

McCauley then turned to the crime scene and Hernandez’s alleged actions there. "Think about the efficiency of this killing,” McCauley asked jurors to imagine, “boom, boom, boom, boom, boom, boom,” and then “back in the car." The killing of Lloyd, McCauley summarized, was planned and carried out by Hernandez, who directed Wallace, Ortiz and Jenkins to help him.

Judge Garsh instructs jury on the charges

Whether Aaron Hernandez is criminally responsible for Odin Lloyd’s death is a much more complex question under Massachusetts law than you might expect. This was readily apparent in Judge Garsh’s lengthy instructions to jurors Tuesday afternoon.

As a starting point, and as explained more fully in a previous trial analysis, Hernandez can be convicted of murder even if he didn’t shoot Lloyd. Jurors can convict him as a joint venturer if they conclude beyond a reasonable doubt:

1. Hernandez was present at the crime scene.

2. Hernandez knew that Wallace or Ortiz possessed the murder weapon and intended to kill Lloyd.

3. Hernandez willingly helped Wallace or Ortiz commit Lloyd’s murder.

​Sultan’s apparent admission that Hernandez was at the crime scene only confirmed what seemed obvious by the end of the trial: Hernandez was at the crime scene. Hernandez also rented and drove the car that transported Lloyd to the crime scene. With varying degrees of certainty, evidence also suggested that Hernandez made purchases and other financial transactions relevant to the crime (gasoline, directing Jenkins to give Wallace $500, guns, ammunition, etc.).

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​Whether Hernandez knew of Wallace or Ortiz’s alleged plans or shared the intent to see Lloyd die is a much more debatable point. This layer of the joint venture analysis might trigger significant and lengthy disagreement among jurors. Each side has presented reasons in favor and against this point. Sultan directed jurors to regard suspicious behavior by Hernandez after Lloyd’s murder as indicative of the uncharged crime of accessory after the fact, whereas McCauley directed jurors to regard suspicious behavior by Hernandez before and after Lloyd’s murder as indicative of a plot to intentionally kill Lloyd.

Jurors will have three alternatives on the murder charge: not guilty, first-degree murder and second-degree murder. To quote a previous analysis, here are the basics of the two types of possible murder convictions facing Hernandez:

• Jurors would convict Hernandez of first-degree murder if they conclude he directly, or through a joint venture, killed Lloyd “with deliberately premeditated malice aforethought,” by “extreme atrocity and cruelty" or in “the commission of a crime punishable with death or imprisonment for life.” If convicted of first-degree murder, Hernandez would be imprisoned for the rest of his life with no chance for parole.

• ​Jurors would convict Hernandez of second-degree murder if they conclude he directly, or through a joint venture, killed Lloyd in a way consistent with first-degree murder but without deliberate premeditation or extreme atrocity and cruelty, as second-degree murder does not involve those conditions. Intent is still required. If convicted of second-degree murder, Hernandez would be imprisoned for the rest of his life with the chance for parole after 15 years.

Hernandez also faces charges for unlawful possession of guns and ammunition connected to the case. Convictions on these charges would realistically lead to a sentence in the ballpark of 5 to 10 years, though Hernandez would be awarded full credit for the 21 months he’s already served behind bars.

Jury deliberations

There is no required or expected timetable for how long the Hernandez jury will deliberate. The Hernandez trial lasted nine weeks and is a much more complicated case than its underlying question of whether Hernandez murdered Lloyd. It would be reasonable to expect jurors to deliberate over several days and perhaps into next week. Remember, the jury has to reach a unanimous verdict on each charge. If just one juror holds out, either because that juror wants to convict or acquit, the jury as a whole would not be complete with their work.

If the jury remains deadlocked by next week, the foreperson might inform Judge Garsh that the jury can’t reach a unanimous resolution. Judge Garsh would likely ask the foreperson if she can help clarify any questions. At this time Judge Garsh would also encourage jurors to continue to deliberate. If the jury nonetheless remains deadlocked after additional days of deliberation and if it appears the jury will not find agreement on each of the six charges, Judge Garsh would likely declare a “hung jury” on the charges where disagreement persists. Prosecutors would then need to decide whether to retry Hernandez on those charges.

While hung juries are not quite rare, juries usually reach a verdict. According to a 2004 study published by the National Institute of Justice Journal, hung juries only occur about 10 to 15 percent of the time.

Odds are the jury in Hernandez will reach a verdict. The odds are much less predictable as to what it will be.

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.