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Judge won’t allow evidence of other shooting in Hernandez trial

Garsh AP

The judge presiding over the first Aaron Hernandez murder trial has slammed the door on the prosecution’s argument that the defense has opened the door.

Via the Boston Globe, Judge E. Susan Garsh decided Wednesday to confirm her prior ruling that evidence regarding the alleged shooting of Hernandez “friend” Alexander Bradley would not be admitted in the case regarding the alleged shooting (and murder) of supposed Hernandez “friend” Odin Lloyd.

In a hearing held with the jury out of the courtroom, prosecutor William McAuley said the defense had referred to Lloyd on 32 occasions during the trial’s opening statements Hernandez’s “friend.”  The prosecution argued that Hernandez’s lawyers had invited evidence regarding the other shooting via the suggestion that Hernandez couldn’t have shot Lloyd because Lloyd is Hernandez’s friend and Hernandez doesn’t shoot his friends.

Judge Garsh nevertheless acknowledged that Hernandez could still open the door to evidence regarding Alexander Bradley’s claim if Hernandez testifies, for example, that he has never fired a gun.  This presumes Hernandez will testify; there’s a good chance he won’t.  Criminal defendants often stay away from the witness stand, since cross-examination of the defendant often makes it easier for the prosecution to prove its case beyond a reasonable doubt.

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Hernandez’s lawyer may have opened the door for evidence of another shooting

Trial AP

When fashioning arguments, tactics, and strategies for trial, it’s critical that a lawyer carefully consider the ramifications of every word that may come out of his or her mouth.

In the first Aaron Hernandez murder trial, the former Patriots tight end’s lawyers may have failed to be as careful as they should have been.

Dan Wetzel of Yahoo! Sports explains the latest fascinating turn in the case arising from the death of Odin Lloyd.  By consistently referring to Lloyd as Hernandez’s friend, Hernandez’s high-priced lawyer may have inadvertently allowed evidence of another time Hernandez shot a supposed friend to be introduced.

The prosecution, per Wetzel, has filed paperwork asking Judge E. Susan Garsh to reconsider the question of whether evidence of the alleged February 13, 2013 shooting of Alexander Bradley will be utilized in the Lloyd case.  The prosecution contends that Bradley was Hernandez’s “friend and confidante” but that Hernandez allegedly shot Bradley in the face “in an isolated industrial area,” dumped Bradley’s body on the ground, and fled the scene.

Bradley survived, suing Hernandez in civil court for the shooting not long before Odin Lloyd’s murder.

Despite Judge Garsh’s prior decision to prevent such evidence, the prosecution contends that Hernandez’s lawyers have “opened the door” by consistently referring to Lloyd as Hernandez’s friend, with the clear message being that Hernadnez wouldn’t shoot a friend.

Ordinarily, evidence of other conduct by a criminal defendant can’t be used to make the defendant look generally like a bad guy.  Rule 404(b) of the Massachusetts Rules of Evidence (like the Rules of Evidence in most if not all states) provides that evidence may be admissible to prove motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident.  In Hernandez’s case, the goal would be to show motive — specifically, that Hernandez would shoot a friend over the flimsiest of actual or perceived indignities.  Bradley claims he was shot after a dispute over a bar bill that led to Hernandez refusing to take Bradley back to the bar to get the phone he’d left there that led to Bradley making “disrespectful remarks” about Hernandez.

The problem with Rule 404(b) evidence is that it can create a trial within a trial, with the trial of the main case being placed on hold while a mini-trial emerges on the question of whether the defendant did the other thing he’s accused of doing.  The bigger challenge comes from the requirement that the relevance of the evidence to the current case must substantially outweigh any unfair prejudice arising from it.

There will be plenty of prejudice to Hernandez flowing from proof that he shot another “friend” under circumstances similar to the shooting of Odin Lloyd.  The question becomes whether the prejudice is unfair to Hernandez — and whether the notion of Hernandez having a hair trigger with so-called friends supplies sufficient proof that Hernandez had a similar overreaction to something Lloyd said or did.Judge Garsh will be tempted to reiterate her prior exclusion of the evidence because it’s the kind of ruling that could result in a conviction of Hernandez being overturned by a higher court.  The judges on the higher court, however, would have to be able to set aside the overall evidence suggesting that Hernandez truly is a bad guy, and that society may be much better off with him permanently kept out of it.

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Wintry weather causes Hernandez trial to start a little later on Monday

Aaron Hernandez AP

Yet another wave of wintry weather in Massachusetts has reportedly caused Aaron Hernandez’s trial to reconvene a little later than planned on Monday morning.

According to the Associated Press, court will not restart until 10:15 a.m. Eastern on Monday.

The 25-year-old Hernandez, a former Patriots tight end, faces a first-degree murder charge in the June 2013 death of Odin Lloyd.

According to the AP, weather issues have led to more than five days of delays for the trial, which is being held in Fall River, Mass. The trial is entering its fifth full week.

The National Weather Service forecasts up to seven inches of snow overnight in the area.

Updates on the trial, as well as a recap of past developments in the case, can be found by bookmarking our link to Hernandez court coverage.

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Shell casing from Hernandez rental car connected to crime scene

Walsh AP

It’s not getting much better for the defense at the first Aaron Hernandez murder trial.

Via the Associated Press, Sgt. Stephen Walsh testified Wednesday that a shell casing found in the rental car used by Hernandez matched the shell casings found at the scene of Odin Lloyd’s shooting.

An employee at the rental-car company found the shell casing under the driver’s seat in the Nissan Altima Hernandez had rented.  He returned the car the day after the shooting.  The casing was put in a dumpster, and police later found it there.

Walsh told jurors that that all six .45 caliber casings had been fired by the same gun.

So while the murder weapon hasn’t been found, the presence of a matching shell casing in the car that Hernandez was driving — and in which Lloyd was a passenger — becomes very strong circumstantial evidence of guilt.

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First Patriots-related witness testifies in Hernandez murder trial

Hernandez AP

It took several weeks, but finally a witness with ties to the Patriots has taken the stand in the first Aaron Hernandez murder trial.

Via the Boston Herald, trainer Brian McDonough told the jury on Tuesday about his interaction with Hernandez the day after Lloyd was shot and killed.  Hernandez was due to meet McDonough at Gillette Stadium for injury rehab that day, but Hernandez texted McDonough to cancel.

“I will not be there today . . . suttin came up but ill jus call u when I’m back around which should be soon but ill b in touch!” Hernandez said via text.  “I truly am sorry for the hassle but something serious came up.”

McDonough isn’t a Patriots employee, but he has worked with Hernandez and other Patriots at Gillette Stadium.  McDounough and Hernandez were introduced through Alex Guerrero, Tom Brady’s personal trainer.

Also on the prosecution’s witness list are coach Bill Belichick, owner Robert Kraft, and former Patriots linebacker Brandon Spikes.  It’s unknown whether they’ll actually testify; lawyers are notorious for identifying so many witnesses that it becomes difficult to discern exactly who will and won’t show up.

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Hernandez’s maids tell jury of multiple guns in the house

Prinholato AP

The first Aaron Hernandez murder trial currently isn’t going very well.

In addition to an about-face from Judge E. Susan Garsh on the question of whether she’ll allow the jury to know that Odin Lloyd sent multiple text messages to his sister after leaving his home with Hernandez and others in the early morning hours preceding Lloyd’s killing, Monday’s court session included incriminating testimony from Hernandez’s former maids.

Via the Boston Herald, Marilia Prinholato (pictured) and Grazielli Silva testified that they stumbled across multiple guns while cleaning Hernandez’s home.  Judge Garsh explained to jurors that the testimony couldn’t be used as proof that Hernandez had a “propensity” to kill, but that it could be used as evidence that he had the “means to commit the murder charge.”

In a case where the murder weapon has yet to be found, that’s a useful way of showing that the man accused of killing someone with a handgun had multiple handguns in his home.  And the handguns weren’t in a safe or any other secure location; they were found in various places throughout the home, for example, in a sock drawer and in a pair of pants that had been left on the floor.

Both maids were later asked by Hernandez to sign non-disclosure agreements.  They refused, and they were fired

More housekeepers are scheduled to testify in the prosecution’s case.

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Judge in Hernandez trial reverses course on mention of Odin Lloyd text messages

Hernandez Murder Trial AP

On Friday, Judge E. Susan Garsh blocked the prosecution in the Aaron Hernandez murder trial from mentioning that Odin Lloyd sent four text messages to his sister shortly before he was killed.

The Associated Press reported that prosecutor Bill McCauley “became agitated” while objecting to that ruling and Garsh has come around to his point of view. On Monday, the Boston Globe reports that she said she’d “given more thought” to the issue over the weekend and decided that Lloyd’s sister Shaquilla Thibou can mention the messages during her testimony to corroborate that Lloyd sent them.

Neither Thibou nor anyone else can mention the content of those messages and Thibou cannot testify about any reaction she had to those messages. The messages read “U saw who I was with,” “Nfl” and “just so U know.”

Monday also brought testimony from people who were working at the industrial park where Lloyd’s body was found at the time prosecutors believe he was killed. Both Barbara Chan and Michael Ribero testified that they heard several “loud bangs” around the time it is believed that Lloyd was shot.

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Arguments continue over Odin Lloyd text messages

Garsh AP

The on-again, off-again first Aaron Hernandez murder trial has reached the “strenuously object” phase.

Via the Associated Press, the lawyers and Judge E. Susan Garsh revisited on Friday the question of whether texts sent by the late Odin Lloyd to his sister could be used at trial.  Lloyd sent the messages to alert his sister that he left in the middle of the night with “NFL.”

The prosecution called Lloyd’s sister to the witness stand, and the defense lawyers requested a conference with the judge away from the hearing of the jury.  Judge Garsh soon ordered a recess, presumably for further discussion of the issue.  When court resumed, Judge Garsh said that the court would tell the jurors that Lloyd was alive at 3:22 a.m. ET.

That wasn’t good enough for prosecutor Bill McCauley, who per the AP “became agitated,” insisting that the jury be told four text messages were sent by Lloyd, at 3:07 a.m., 3:11 a.m., 3:22 a.m., and 3:23 a.m.  Judge Garsh continued to resist, and McCauley continued to push.

“I have made a ruling,” Judge Garsh eventually said.  “My ruling stands!”

The content of the text messages has been excluded because they are hearsay (out of court statements) that apparently don’t fall within any of the potential exceptions to the hearsay rule when the person who made the statement isn’t available to testify.  By pushing as a fallback for the jury to be told that Lloyd actually sent text messages at those times, which isn’t a statement but an action, McCauley could be hoping that the jury will speculate that those late-night/early-morning messages contained requests for help, from Lloyd’s sister or from someone else.

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Judge allows video of Hernandez dismantling phone

Hernandez AP

When it comes to the first Aaron Hernandez murder case, there may never be direct evidence of Hernandez pulling the trigger, repeatedly, on the gun that killed Odin Lloyd.  But there may be more than enough circumstantial evidence of guilt to allow a jury to conclude that Hernandez did it, beyond any reasonable doubt.

On Friday, Judge E. Susan Garsh allowed the jury to see a key piece of circumstantial evidence:  Surveillance video of Hernandez sitting in a car with his lawyer at the North Attleboro police station one day after Lloyd was killed.  Prosecutors contend the video shows Hernandez breaking his cell phone into three pieces before being given another phone by an attorney and using that phone to call one of Hernandez’s alleged accomplices.

Defense lawyers had fought to keep the video away from the jury, but Judge Garsh concluded that Hernandez had no expectation of privacy while sitting in a car in a public parking lot.

While jurors won’t be told who gave Hernandez the phone (they’ll know only that it wasn’t his phone), if they agree with the characterization of the video, they’ll have a hard time believe that Hernandez is innocent — especially if he doesn’t take the stand to explain why he dismantled the phone.

Criminal defendants routinely don’t testify in their own defense, because doing so waives the Fifth Amendment right to self-incrimination and exposes them to cross-examination by prosecutors.  While many regard the failure of the defendant to testify as proof of guilt, it’s always better to say nothing — especially when the person is actually guilty.

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Second juror removed from Aaron Hernandez jury

cd0ymzcznguwzdbhnduynddiytjhm2yyzthlmtjjotqwyyznptrlowm1zmqyytvhndk1mtlkmtfimjfhzjljmzgxyjvm AP

The Aaron Hernandez murder trial has lost a second juror.

Judge E. Susan Garsh excused a female juror from service last week after finding “credible evidence” that she misrepresented her knowledge and opinions about the case during the jury selection process. On Wednesday, Garsh excused another juror and said, via Jerry Spar of WEEI.com, that the decision was made “for reasons that were entirely personal to that juror” that were not related to the Hernandez case.

There are now 16 jurors hearing the case. Twelve jurors will decide whether Hernandez is guilty of murdering Odin Lloyd in 2013 with the other four serving as alternates in the event more jurors have to be removed from service.

Spar reports that Hernandez’s fiancee Shayanna Jenkins was in her usual seat behind Hernandez during Wednesday’s session, which came a day after reports that Jenkins has been granted immunity from perjury charges if she testifies against Hernandez. The trial will resume on Friday.

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Shayanna Jenkins to testify against Aaron Hernandez

Jenkins AP

Previously, Aaron Hernandez’s lawyers feared that the player’s fiancée had struck a deal with prosecutors to testify against Hernandez in exchange for immunity from her pending charge of lying to a grand jury.

Those fears have come to fruition, in the form an agreement that is no longer a secret.

Per multiple reports, Shayanna Jenkins has been granted immunity and will testify against Hernandez.

It’s a horrible sign for Hernandez, who now faces the introduction of chapter-and-verse details from Jenkins regarding things said and done by Hernandez before and after the body of Odin Lloyd was found in an industrial park near Hernandez’s home in North Attleboro.  And since Hernandez and Jenkins weren’t married, anything he said to her can and will be used against him at trial, without the benefit of the marital privilege.

Hernandez’s lawyers surely will attack his fiancée’s credibility by pointing out that she has wiggled off the legal hook by agreeing to testify against Hernandez.  Still, Jenkins had Hernandez’s baby.  She was engaged to marry him.  Even if she’s protecting herself by doing it, she’s giving what potentially will be damning testimony against Hernandez.

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Snowstorm postpones Aaron Hernandez trial second straight day

3d8680e44d6807ee24f44e89577ce84e AP

The Aaron Hernandez trial is taking longer than expected, and not because of any evidence or deliberations.

According to Ben Volin of the Boston Globe, the trial has been postponed another day because of the snowstorm that has hit the New England region.

This is the second straight day conditions have brought the murder trial to a halt because of the winter storm.

Some places in Massachusetts have had 70 to 80 inches of snow in the last two weeks, and governor Charlie Baker said Monday that enough snow had been removed to fill Gillette Stadium 90 times.

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Hernandez trial won’t convene Monday because of winter storm

Aaron Hernandez AP

An expected winter storm has brought the Aaron Hernandez murder trial in Fall River, Massachusetts to a temporary halt.

According to the Associated Press, court will not be in session Monday because of the possibility of substantial snow. The trial is slated to re-start on Tuesday, per the AP.

As of Sunday night, the National Weather Service forecasts 6-to-10 inches of snow for the Fall River area and “hazardous driving conditions” through Monday night.

The area is under a winter storm warning, which means more than a half-foot of snow is forecast, according to the weather service.

A former Patriots tight end, Hernandez is charged with the slaying of Odin Lloyd in June 2013. The trial is entering its third week.

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Jury tours Aaron Hernandez’s home

Hernandez AP

Former Patriots tight end Aaron Hernandez hasn’t visited his North Attleboro home since June 2013.  On Friday, the jury deciding his fate in Hernandez’s first murder case did.

Via the Boston Herald, the 12-person jury (with five remaining alternates) inspected Hernandez’s home, along with the presiding judge and the lawyers for both sides.  Hernandez did not attend.

“The purpose of the view is to help you better understand the evidence,” Judge E. Susan Garsh told the jurors.  “The observations you make can be used . . . during deliberations.”

The field trip included a visit to Hernandez’s home, Odin Lloyd’s residence, and the industrial park where Lloyd’s body was found.

Previously, Judge Garsh required defense lawyers to hide trophies, religious objects, and family photos in Hernandez’s house.

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Potential Hernandez “stealth juror” spotted, dismissed

Garsh AP

It could end up being a good thing that the 12-person jury deciding whether former Patriots tight end Aaron Hernandez killed Odin Lloyd in 2013 has six alternates.  They eventually may all be needed.

According to the Hartford Courant (via Deadspin), a female juror has been excused after a private hearing involving Judge E. Susan Garsh, the lawyers, and the juror.

Judge Garsh found “credible evidence” that the juror had “discussed evidence and formed an opinion about it.”  Specifically, Judge Garsh found that the juror said that “in the absence of a weapon if would be hard to convict” Hernandez.

It means that the juror may have been a so-called “stealth juror,” who lied about her lack of opinions about the evidence in order to get onto the panel.  As noted by the Courant, the defense previously expressed concern about “stealth jurors.”  Ironically, this is one that could have delivered an acquittal, or at worst a hung jury.

The next question is whether there are other stealth jurors.  Like the number of licks it takes to get to the Tootsie Roll center of a Tootsie Pop, the world may never find out.

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