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Possible PCP-based defense hovers over Hernandez trial

Hernandez AP

On Monday, the process will commence for selecting a jury in the first murder case against former Patriots tight end Aaron Hernandez.  At some point, presumably before the jurors start hearing evidence, the presiding judge has a decision to make regarding the drug that Louis Winthrope III was framed for selling in Trading Places.

According to John R. Ellement of the Boston Globe, the prosecution has asked the judge to prevent the defense from calling an expert witness who will testify regarding the effects of PCP use on the brain.  But there’s no proof Hernandez was under the influence of PCP at the time he allegedly shot and killed Odin Lloyd in June 2013.

“[T]here will be no evidence of the use of PCP by any defendant on the date of the murder,” prosecutors asserted in court papers, per the Globe.  “The defense seeks to mislead the jury by raising the bogey man of the illicit use of PCP without being able to show how it in any way has relevance to the events of the murder.”

If the testimony is intended to set up a “diminished capacity” defense for Hernandez, prosecutors contend that the defendants have failed to provide proper notice of the intended effort to explain the murder.  It’s a risky defense to use, since it forces an awkward fallback position into the theory of the case:  My client didn’t do it, but if he did it was only because he was high on PCP.

It’s also possible that the PCP-related testimony will be used to attack the credibility of co-defendants Ernest Wallace and Carlos Ortiz, in the event the prosecution ultimately manages to get useful testimony out of either of them.  However, prosecutors contend that neither Wallace nor Ortiz used PCP within 24 hours of the murder.

It’s also possible that the defense is simply forcing the prosecution to chase ghosts, with no intent to ever actually call the witness to testify at trial.

According to the Globe, prosecutors also want to be permitted to introduce testimony that Hernandez told a childhood friend six weeks before the murder that Hernandez owns a .45 caliber pistol.  The murder weapon, unrecovered by the authorities, was a .45 caliber pistol.

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Hernandez lawyers worry about “stealth jurors”


With jury selection in first murder case against Aaron Hernandez due to begin in fewer than three weeks, Hernandez’s lawyers have a new concern.

Stealth jurors.

According to John R. Ellement of the Boston Globe, Hernandez’s lawyers fear that folks looking for notoriety or excitement will try to slip through the jury selection process in order to have a crack at putting Hernandez away.

“In criminal prosecutions involving celebrities or prominent persons, one must contemplate the possibility that one or more members of the [jury pool] may harbor illicit intentions and try assiduously — even lie — to become a juror thinking that it will bring them fame or simply thrills,” Hernandez’s lawyers said in court documents. Hernandez’s lawyers have asked for additional “peremptory challenges,” legalese for the number of jurors that a lawyer can strike from the pool without any specific reason or proof of potential bias.  The goal will be to eliminate jurors whom the lawyers think could be inclined to convict Hernandez but who aren’t providing answers in response to questions that would get the potential jurors stricken for cause.

In Massachusetts, judges typically pose questions to potential jurors, with the lawyers not having the ability to do so. Coincidentally, a new law becomes effective on January 1, which will allow the lawyers to directly ask questions to potential jurors. Hernandez’s lawyers have asked Judge E. Susan Garsh to adopt the new procedure.

Given the amount of prejudicial information that has appeared in the media, it’s important for the lawyers to be able to find jurors who aren’t aware of the information or who truthfully will not consider it.  Judge Garsh recently has ruled that evidence regarding the July 2012 shootings of Safiro Furtado and Daniel de Abreu shall not be admitted at the trial regarding the unrelated killing of Odin Lloyd.  It would be fairly easy for a potential juror who simply wants to ensure that Hernandez is found guilty to lie about a lack of knowledge regarding those separate allegations.

There may not be stealth jurors, but there could be stealth Patriots fans.  Via, Judge Garsh has ruled that no Patriots or other NFL-related gear or logos may be displayed in court.

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Odin Lloyd text messages excluded from evidence in Hernandez trial

Hernandez AP

On January 5, jury selection begins in the first murder trial involving former Patriots tight end Aaron Hernandez.  Which means that the balance of the month will feature periodic rulings and decisions regarding the evidence that will or won’t be introduced.

Most recently, Judge E. Susan Garsh has ruled that text messages sent by Odin Lloyd to his sister on the evening of his murder will be excluded from the trial.

“U see who I’m with?” Lloyd texted his sister on the morning of his murder, after he left his home with Hernandez.  “NFL, just so you know.”

The article from Jenny Wilson of the Hartford Courant doesn’t explain why the evidence was excluded.  Judge Garsh may have concluded that it was hearsay that didn’t fall into any of the various exceptions to the hearsay rule.  (For those interested and/or afflicted with insomnia, the exceptions to the hearsay rule when the person who made the statement isn’t available to testify at trial appear in Rule 804 of the rules of evidence.)  Also, the Confrontation Clause of the Constitution may have contributed to the ruling.

Judge Garsh also determined that texts from Hernandez to his alleged accomplices instructing them to come to Massachusetts from Connecticut on the night of the shooting could be used as evidence, along with surveillance video showing Hernandez and others carrying guns into Hernandez’s house, something that allegedly occurred after Lloyd was shot.

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Hernandez tries to keep evidence of other shootings out of Lloyd trial

Hernandez AP

With jury selection in the first Aaron Hernandez murder trial less than a month away, efforts will be made to determine the evidence that will, and that won’t, be introduced against Hernandez in connection with the claim that he shot and killed Odin Lloyd in June 2013.

Predictably, Hernandez has made a request to exclude evidence of other shootings of which he’s accused.

Via the Boston Globe, Hernandez has asked that Judge E. Susan Garsh prohibit evidence regarding the allegation that Hernandez shot and killed Daniel Abreu and Safiro Furtado in July 2012, along with evidence that Hernandez allegedly shot and wounded Alexander Bradley in February 2013.

Typically, evidence of other misconduct cannot be introduced against a criminal defendant, subject to certain specific exceptions.  As to the Abreu and Furtado murders, it’s possible that the prosecution will argue that evidence linking Hernandez to those shootings — along with proof Lloyd knew about Hernandez’s involvement — supplies a motive for killing Lloyd.

Meanwhile, the pre-trial proceedings have included the submission of potential witness lists for the trial.  Appearing on the prosecution’s list of more than 300 potential witnesses are Patriots owner Robert Kraft, coach Bill Belichick, and former Patriots teammate Brandon Spikes.

It’s common for lawyers to identify far more witnesses than ever would be called to testify at trial, both to enhance flexibility when the time comes to determine the final roster of witnesses and to conceal from the opponent any clues regarding trial strategy that a more narrow and realistic list of witnesses may reveal.

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Hernandez double-murder trial delayed

Hernandez AP

The second of former Patriots tight end Aaron Hernandez’s two murder trials has been postponed.

Originally set for May 28, the case regarding the July 2012 shooting deaths of Daniel Abreu and Safiro Furtado had been scheduled for May 28.  It has been delayed indefinitely.

Hernandez faces trial in January 2015 for the June 2013 murder of Odin Lloyd.  Hernandez has been jailed without bond on all charges since his late June 2013 arrest for killing Lloyd.

Jury selection in the Lloyd murder case is due to begin on January 9.

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Key Hernandez witness failed polygraph test regarding shooting

Ortiz AP

The Odin Lloyd murder trial commences in January.  A recent report suggests that the man once believed to be the prosecution’s key witness against former Patriots tight end Aaron Hernandez failed a lie-detector test regarding the question of whether the witness saw Hernandez shoot Lloyd.

Via, Carlos Ortiz showed deception when denying that he observed the June 2013 shooting in an industrial park near Hernandez’s home.

“I didn’t see what happened,” Ortiz said in the transcript of the polygraph test, after the administrator told Ortiz was lying when he claimed not to see the shooting.  “I mean, I seen when everybody got out you know.  I was opening the door and that’s when I heard the gunshot.”

The transcript was released in connection with an effort to charge Hernandez’s cousin, Tanya Singleton, with being an accessory to the murder.  Singleton is served two years of probation after pleading guilty to contempt of court charges arising from her refusal to testify against Hernandez at a grand jury.  She suffers from cancer, and it’s possible that prosecutors have decided to charge her with a more serious crime to persuade Hernandez to strike a plea deal.

Hernandez also is accused of killing two men in July 2012.  He has been held without bail for more than 15 months.

Early on, it appeared that Ortiz would be the key witness against Hernandez.  Concerns regarding drug use and other reasons for unreliability resulted in Ortiz’s relevance to the prosecution of Hernandez fading.  It’s unclear why he’s regarded as a reliable witness in the case against Singleton.

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Judge denies Hernandez change of venue request

Hernandez AP

Plagiarism apparently isn’t grounds for moving the location of a murder trial.

According to the Associated Press, Judge Susan Garsh has rejected a request by former Patriots tight end Aaron Hernandez to move the Odin Lloyd murder case out of Bristol County, Massachusetts.

Specifically, Judge Garsh ruled that Hernandez’s lawyers had not shown that local prejudgment of the case would make it impossible to pick an impartial jury.

Lawyer Michael Fee had argued that “sensational and inflammatory” media coverage “has poisoned the jury pool in Bristol County.”  Of course, the media coverage — sensational or inflammatory or otherwise — has extended far beyond the borders of Bristol County.  It will be a challenge anywhere in the state to find 12 jurors who haven’t formed an opinion about the case based on the media coverage.

The trial currently is set for January 2015.  Hernandez also faces trial on two separate murder charges from July 2012, eleventh months before Lloyd was shot in an area not far from Hernandez’s home.

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Hernandez’s lawyers advance unusual argument to support change of venue

Hernandez AP

Former Patriots tight end Aaron Hernandez remains on track to stand trial in January for the June 2013 murder of Odin Lloyd.  His lawyers remain interested in moving the trial out of Bristol County, the site of the crime.

According to John R. Ellement of the Boston Globe, Hernandez’s lawyers have fashioned a somewhat unusual argument in support of their position that the case should be moved.  They contend that the prosecution essentially plagiarized the work of the federal prosecutors opposing a change of venue in the Boston Marathon bombing case.  Hernandez’s lawyers contend that, if the state-level prosecutors really cared about keeping the case against Hernandez in Bristol County, they would have come up with their own arguments.

“Leaving aside all of the reactions one might have on many levels to this extensive, undisclosed submission of another’s work to a court, the conduct appears to convey a lack of interest on the part of the Commonwealth in fashioning its own vigorous opposition to Hernandez’s motion for a change of venue,” Hernandez’s attorneys wrote, via Ellement.  “By simply cutting and pasting the work of others, the Commonwealth conveys the message that a recycled opposition is sufficient to blunt Hernandez’s motion for a change of venue.  In so doing, the Commonwealth greatly misapprehends the well-founded basis for Hernandez’s motion and the unique circumstances of this case.”

Prosecutor Samuel Sutter downplayed the notion that the use of portions of the filing in the Dzhokhar Tsarnaev prosecution in any way undermines the state’s opposition to the requested change of venue in the Hernandez case.

“To the extent that both the Tsarnaev and Hernandez change of venue motions raise the same basic legal issues, we were required to cite the same Supreme Court cases setting out the governing law as the US Attorney’s Office,” Sutter said.  “Any experienced legal observer would understand that this is a standard practice.”

Without actually seeing the documents, it’s impossible to know whether Sutter’s staff simply cut and pasted the mechanical portion of the analysis that sets forth the appropriate legal standard and cites the past cases from which those rules emerged — or whether they actually lifted verbatim the specific arguments made by the lawyers applying those standards to the facts of the case.  While it’s very common for portions of briefs and memos and written judicial opinions to be used again and again and again in similar documents, the idea that prosecutors would borrow arguments specific to the facts of one case to a different case seems bizarre, to say the least.

Then again, it’s possible that the same issues in the Tsarnaev case arise in the Hernandez case, and that Sutter’s staff liked the arguments that the feds used in the Tsarnaev case.  Even then, it would be odd if anything other than relevant legal standards and citations were cut and pasted from one case to another.

Ultimately, there’s nothing “wrong” about using content from other legal documents.  Lawyers are loathe to reinvent the wheel, and nothing in a legal brief is protected by copyright.  But it’s a way for Hernandez’s lawyers to make the prosecution look bad and/or sloppy, both to the judge and to anyone who may hear about this specific wrinkle and ultimately serve on the jury.

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Judge throws out evidence obtained from Hernandez’s apartment

Hernandez AP

Former Patriots tight end Aaron Hernandez continues to await trial on a trial of murder charges.  In the case arising from the shooting death of Odin Lloyd, Hernandez’s legal team has scored a victory.

On Thursday, Judge Susan Garsh issued an eight-page ruling that suppresses all evidence retrieved from a search of Hernandez’s apartment in Franklin, Massachusetts.

The search arose from an effort to retrieve the cellphone of Carlos Ortiz, who was with Hernandez and Lloyd on the night of the murder.  While at the apartment to get the cellphone, police made observations that resulted in five more warrants — which in turn resulted in the retrieval of various types of ammunition and other property.

Judge Garsh found that the affidavit supporting the search warrant for Ortiz’s phone failed to establish probable cause to conclude that the phone is related to the criminal activity under investigation.  As a result, the phone and all other evidence later obtained via separate search warrants can’t be introduced at trial.

While a win for Hernandez’s legal team, the ruling likely has little impact on the question of whether he’ll be convicted at trial, since none of the evidence from the apartment is the proverbial (or in this case literal) smoking gun.  But it’s a reminder that Hernandez has very real rights, thanks to a system that would much rather see 10 guilty men go free than one innocent be wrongfully imprisoned.

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Hernandez legal team scores minor victory in court

Hernandez AP

Former Patriots tight end Aaron Hernandez has experienced plenty of losses and disappointments in court as he remains jailed while awaiting trial on a trio of murder charges.  On Monday, Hernandez received a rare bit of good news in the Odin Lloyd case.

Via the Boston Globe, Judge Susan Garsh issued a 28-page ruling that prevents the use of evidence culled from certain electronic devices seized by authorities during a search of Hernandez’s home in the days after Lloyd’s bullet-riddled body was found less than a mile away.

The warrant targeted a GPS device that Hernadnez told investigators contained Lloyd’s home address.  Investigators serving the warrant took an iPhone 5, a Blackberry Bold cellphone, an Apple iPad, and two iPad minis.  Judge Garsh wrote that the authorities “operated under the misimpression that the Search Warrant authorized the seizure of GPS devices when they seized the cell phones and tablets from Hernandez’s residence.”

Prosecutors argued that a warrant authorizing the seizure of a specific cellphone allowed all similar devices to be taken from the property.

The magnitude of the victory for Hernandez and his legal team isn’t known, because the specific contents of the seized devices isn’t known.  But with a very high standard of proof in criminal cases, any little piece of potentially incriminating evidence helps the effort to secure a conviction.

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Hernandez cousin avoids jail time on contempt charge

Singleton AP

Tanya Singleton won’t be going back to jail.

The cousin of former Patriots tight end Aaron Hernandez refused to testify before a grand jury investigating the June 2013 murder of Odin Lloyd.  She pleaded guilty to criminal contempt for failing to cooperate even though she had been granted immunity from potential prosecution.

Due to a cancer diagnosis, she’ll spend a year on house arrest and another year on probation.

“Miss Singleton’s willful conduct constitutes an assault on the rule of law and the effective administration of criminal justice,” Judge Susan Garsh said, via the Boston Globe. “Miss Singleton’s health is the only reason she is not being placed in jail.”

Prosecutors accused Singelton, who already spent 196 days behind bars while the Lloyd grand jury was in session, of having a “perverted her sense of loyalty” and an “utter disdain” for the legal process, via the Associated Press.  Prosecutor William McCauley said that Singleton put Hernandez above her own children, who were four and seven at the time she was initially jailed.

Judge Garsh denied a request from the mother of Odin Lloyd to make an impact statement during the hearing, concluding that Ursula Ward was not a direct victim of the crime.  Ward spoke to reporters after the hearing.

“What would you do or say to help the other family heal with the truth?” Ward said.  “My baby was my only son, my first born   My baby’s gone without me saying goodbye.”

That makes Lloyd’s family a direct victim of Singleton’s affront on the justice system.  Singleton knows something about what happened to Lloyd, and Singleton has refused to share information that could help Ward and the rest of Lloyd’s family obtain closure.  It also strongly suggests that the information would implicate, not exonerate, her cousin.

If Hernandez had any loyalty to Singleton, he would have insisted both privately and publicly that she tell the truth, without fear of the potential consequences.  Instead, he has allowed her to suffer behind bars and to spend what may be the final months of her life confined to her home.

While it’s still not proven that Hernandez killed anyone, what he has done to Singleton by not unequivocally and unconditionally giving her blanket permission to cooperate with the justice system is criminal in the moral sense.  Especially since there’s a chance her silence doesn’t come from a “perverted sense of loyalty” but from a very rational fear of retaliation.

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Hernandez cousin wants to avoid jail time due to cancer

Singleton AP

Tanya Singleton, who has refused to testify against her cousin, former Patriots tight end Aaron Hernandez, has pleaded guilty to contempt of court.  Her lawyer argues that Singleton should not go to jail for refusing to give testimony that could help send Hernandez to prison for life.

According to the Boston Globe, Singleton’s lawyer has asked for a one-year sentence, with credit for 196 days already served and the balance suspended in lieu of home confinement.  Singleton claims that she suffers from terminal cancer, and that imprisonment “likely would hasten” her demise.

In requesting lenience, lawyer E. Peter Parker explains that Singleton refused to testify against Hernandez because she loves him like a son.

Judge Susan Garsh ruled Wednesday that prosecutors must show that Singleton will receive adequate medical care in jail, if the prosecution intends to push for incarceration.

Singleton, who refused to testify before a grand jury investigating the June 2013 murder of Odin Lloyd, also refused to testify before a grand jury investigating the July 2012 murders of Daniel de Abreu and Safiro Furtado.

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Judge rejects Hernandez motion to dismiss Odin Lloyd murder charges

Hernandez AP

Behind bars for more than a year as he awaits trial for the murder of Odin Lloyd, Hernandez will remain in jail a little longer. Or a lot longer.

According to the Associated Press, Judge Susan Garsh has denied a motion to dismiss the charge.

She concluded that probable cause exists based on the evidence to believe that Hernandez killed Lloyd, and that circumstantial evidence is sufficient to convict Hernandez. The case against the former Patriots tight end lacks a murder weapon, and there is no reliable, first-person evidence of Hernandez pulling the trigger or even being present when the trigger was pulled.

The motion also attacked lack of evidence of a clear motive, but the judge ruled that evidence of motive isn’t need to prove that Hernandez committed the murder.

Even if the charge had been dismissed, Hernandez would have remained in jail pending trial for the July 2012 murders of Daniel de Abreu and Safiro Furtado.

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Hernandez’s first murder trial moved to January

Aaron Hernandez AP

Whenever a headline about a guy’s upcoming murder trial contains the term “first,” that’s not good.

For former Patriots tight end Aaron Hernandez, the first of two murder trial has been moved from October 2014 to January 2015.  Specifically, jury selection begins on January 3, and the trial starts on January 9.

Whenever the trial begins (and it could be delayed one or more additional times), Hernandez will face the accusation that he killed Odin Lloyd in June 2013.

Hernandez’s second murder trial, which accuses him of killing Daniel de Abreu and Safiro Furtado, is scheduled to begin on May 28, 2015.  That date also is tentative.

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Dispute over Patriots’ Hernandez records resolved

Paperwork Getty Images

The lawyers representing former Patriots tight end Aaron Hernandez wanted to get a wide variety of documents from the team.  The team didn’t want to surrender certain things. A middle ground has been identified.

According to the Associated Press, attorney Michael Fee said in court on Tuesday that the dispute has been resolved.  Lawyers for both Hernandez and the Patriots declined comment.

The Patriots previously had agreed to surrender 317 pages of personnel records, but the team refused to produce a scouting report and a one-page summary of Hernandez’s pre-draft psychological assessment.

Hernandez’s lawyers have argued that the documents may contain critical information about Hernandez’s state of mind, which could be a hint that the lawyers are exploring the possibility of using some type of insanity-based defense as an alternative to arguing that Hernandez didn’t kill Odin Lloyd.

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