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Hernandez defense relies on bizarre PCP argument


The case-in-chief presented by the prosecution in the first Aaron Hernandez murder case included 131 witnesses.  The first of only three witnesses presented by Hernandez showed that his lawyers will put plenty of eggs into a fairly bizarre basket.

At closing argument, Hernandez’s lawyers will attempt to show that reasonable doubt as to his guilt exists because it’s possible that Carlos Ortiz and/or Ernest Wallace killed Odin Lloyd in a fit of rage induced by ingestion of PCP.

Dan Wetzel of Yahoo! Sports explains why the testimony of Dr. David Greenblatt possibly did more harm than good, thanks to a skillful cross examination that made the effort to create reasonable doubt seem like spitballs of speculation aimed at sticking to the walls of the jury room, giving those inclined to acquit Hernandez a plausible basis for doing so.  Greenblatt admitted that he doesn’t know if Wallace and/or Ortiz had taken PCP and that it would be impossible to know it without a toxicology report (or without testimony from Wallace and/or Ortiz that they had taken PCP).  Greenblatt also admitted that it would be impossible to know if they’d suffered PCP-induced psychosis that resulted in the shooting of Lloyd.

Greenblatt also admitted that drinking alcohol can lead to violent acts, which as Wetzel notes dovetails with testimony from Hernandez’s fiancée that Hernandez was drunk that night.

The decision to call Greenblatt shows that Hernandez’s lawyers feel compelled to introduce an alternative explanation for a mountain of circumstantial evidence that points to Hernandez committing the murder personally or being sufficiently involved in a joint venture to be culpable.  If the only alternative explanation is that the other two men in the car with Hernandez and Lloyd killed Lloyd in a fit of PCP-related psychosis without any evidence that the two men had taken PCP, Hernandez’s lawyers would have been better off ignoring that angle and harping at closing arguments on the notion that there’s still no murder weapon and no proof of a motive to kill Lloyd, even though proof of motive isn’t technically required.

Thanks to Greenblatt’s testimony, the jury may now be even more inclined to convict Hernandez without a specific motive, embracing the notion that Hernandez killed Lloyd in a fit of drunken rage — especially if the jurors apply common sense to undisputed evidence that Hernandez instructed his fiancée to get rid of a mystery box not by throwing it in the trash at their home but by throwing it in some random dumpster.

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Hernandez defense rests in less than one day


It took the prosecution 39 days and 131 witnesses to attempt to prove that former Patriots tight end Aaron Hernandez killed Odin Lloyd in June 2013.  It took Hernandez’s lawyers less than one day — and only three witnesses — to present his defense.

Per multiple reports, three witnesses were called, including an expert witness who testified about the effects of PCP use.  The defense hopes to inject reasonable doubt into the case by suggesting that one of the two men who were with Hernandez and Lloyd (Carlos Ortiz and Ernest Wallace) killed Lloyd while under the influence of PCP.

That theory would be more persuasive if Hernandez, Ortiz, or Wallace were to testify.  But none of the other men who were with Lloyd were called to the stand.

Hernandez was never going to testify, because to do so would have squandered his right against self-incrimination.  (Ortiz and Wallace likely would have asserted their own Fifth Amendment rights, too.)  While the jury will be told not to hold the failure of Hernandez to testify against him, some of the jurors surely will wonder why Hernandez didn’t simply get on the stand and declare that Ortiz or Wallace shot Lloyd, if that’s what happened.

Via Dan Wetzel of Yahoo! Sports, the prosecution has called one witness to the stand as part of its rebuttal case.  Specifically, the prosecution has a witness who will rebut the claims made by Hernandez’s PCP expert.

Barring something unexpected, closing arguments will start Tuesday, and the jury will then begin deliberating its verdict.

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Aaron Hernandez knew that beating NFL drug tests is easy


Aaron Hernandez is an accused murderer, which makes the accusation that he was also a habitual marijuana smoker seem so trivial that it’s barely worth mentioning. But the testimony in Hernandez’s murder trial indicates that Hernandez was a regular pot smoker, and that he managed to smoke pot throughout his NFL career without ever failing an NFL drug test. And that raises a question: How did Hernandez beat the tests?

The answer is, fairly easily.

The NFL’s drug-testing program is really two programs: There’s the program for testing for substances of abuse and the program for testing for performance-enhancing drugs. The PED testing is stringent: Players are subject to unannounced testing all year long, and most players are tested several times over the course of a year. If you’re using PEDs in the NFL and you’re not getting caught, you have to be doing something pretty sophisticated to beat the tests.

But most players are only tested for substances of abuse once a year, before the season starts, and they knew the approximate time of their testing. As a source who was formerly affiliated with the NFL’s testing program told Ben Volin of the Boston Globe, Hernandez probably just stopped smoking pot when the testing was coming and then started up again as soon as he had submitted a sample.

“The most logical conclusion is he stopped smoking in June, passed his test in July, then smoked all he wanted for 11 months of the year,” the source said.

In other words, Hernandez knew that it’s easy to beat the NFL’s tests for substances of abuse: Stop using in time for drugs to clear your system, pass your one annual test, then start using again as soon as you’ve submitted your clean sample. Then you’re good to go until the next year, when you’ll have to get clean again, briefly, just until you’ve submitted your annual clean sample. The only exception is that players who are in the substance-abuse program are subject to additional testing. But Hernandez was able to avoid detection well enough to keep himself out of the program.

The NFL probably only tested Hernandez for marijuana four times: Once at the Combine before he was drafted and once during each of the three offseasons of his NFL career. Hernandez admitted before he was drafted that he had used marijuana while playing at Florida, but if he passed all of those NFL-mandated tests, he was free to smoke all he wanted the rest of the time, as long as he could get it out of his system in time to beat the next year’s test. Hernandez was probably tested for PEDs many times during his career, and those samples probably would have come up positive for marijuana if they had been tested for marijuana, but the PED test is separate from the marijuana test.

So if you’re an NFL player using recreational drugs, beating tests is easy, as long as you’re able to stop long enough to get the drugs out of your system. The policy is designed to catch those who have a drug problem so serious that they can’t or won’t stop even when they know the test is coming. Everyone else is free to use for most of the year.

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Hernandez defense won’t last long


On Friday, Judge E. Susan Garsh denied an effort to dismiss the Odin Lloyd murder charge currently pending against former Patriots tight end Aaron Hernandez.  On Monday, Hernandez’s lawyers will begin presenting his formal defense.

Via Elizabeth Barber of Reuters, the defense’s case may not last long.  Per Barber, the first witness could be Dr. David Greenblatt, an expert witness who will offer testimony about PCP.  It’s possible that Hernandez’s lawyers will attempt to pin the murder on the other two men in the car with Hernandez and Lloyd, Carlos Ortiz and Ernest Wallace, claiming that they were under the influence of PCP.

The challenge will be proving that either of the men had taken PCP, unless one or more of the people called in the prosecution’s 120-witness case-in-chief testified that they did.

Judge Garsh has determined that the parties will have 90 minutes to present their closing arguments, which could begin on Tuesday.  The prosecution will slice its presentation into two parts, pushing as much as possible into what amounts to the last word.

Appearing on Friday’s PFT Live on NBC Sports Radio, Dan Wetzel of Yahoo! Sports said that the most damning piece of evidence to date came via surveillance video of Hernandez carrying in his house following the murder what appears to be a gun.  An expert witness has testified that it was a Glock semi-automatic pistol, the murder weapon that has still not been recovered — and that may have been in the box that Hernandez’s fiancée disposed of at Hernandez’s direction.

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Prosecution rests in Aaron Hernandez trial


It’s over.  Well, part of it is over.

The prosecution has rested its case in the first Aaron Hernandez murder trial, arising from the shooting death of Odin Lloyd in June 2013.

Judge E. Susan Garsh has told the jurors that the trial will resume Monday, with the defense presenting its case.  Of course, the defense isn’t required to present a case at all, because the prosecution has the burden of proving guilt beyond a reasonable doubt.

Judge Garsh also said that the jury will be getting the case next week, which means that the defense case, the rebuttal case, and the closing arguments will all happen next week.  And it also could mean that there will be a verdict next week.

Conviction or acquittal, Hernandez will remain behind bars, because he faces an allegation that he killed two other men in July 2012.

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Key witness in Hernandez case can’t give key testimony


As the prosecution closes in on resting its case against former Patriots tight end Aaron Hernandez, a man whom Hernandez allegedly shot in the face testified on Wednesday.   But Alexander Bradley wasn’t allowed to explain that he’d been shot in the face.

That’s because the legal system has concluded that evidence of other bad acts by Hernandez can’t be introduced into evidence in the case regarding the shooting death of Odin Lloyd, since neither the alleged shooting of Bradley nor the alleged double murder of two men in Boston in July 2012 have an appropriate connection to the Lloyd murder.  The prosecution tried earlier in the trial to argue that Bradley should be able to talk about the time Hernandez allegedly shot him, because the defense had been suggesting that Lloyd and Hernandez were friends and Hernandez doesn’t shoot his friends.  Bradley and Hernandez also were friends, but that didn’t stop Hernandez from shooting Bradley, allegedly.

And so Bradley, whose face is disfigured as a result of the shooting, testified without the jury knowing that Bradley got that way thanks to a bullet from a gun fired by Hernandez, allegedly.

Of course, this doesn’t mean the jurors don’t know about the Bradley shooting.  The jury isn’t sequestered, which means that the jurors can Google “Aaron Hernandez” all night and all weekend long from their own homes.

What’s that, you say?  The judge has ordered the jurors not to conduct any Internet research about the case?  The judge also has ordered them not to come to any conclusions about Hernandez’s guilt or innocence, but they each surely violated that one a long time ago.

Even without testimony about being shot by Hernandez, Bradley had some relevant information to offer, as explained by Dan Wetzel of Yahoo! Sports.  For example, Bradley said he saw Hernandez with a Glock semi-automatic pistol a few months before the Lloyd murder; Lloyd allegedly was shot by a Glock semi-automatic pistol.  Also, Bradley testified that Hernandez had a “lock box, a safe” in his basement, in which Hernandez kept a gun, cash, and marijuana blunts.  Police didn’t find the item when searching Hernandez’s home, which sets the stage for an argument that this is the item Hernandez’s fiancée disposed of at his direction.

It’s not the last time Hernandez will have to hear testimony from Bradley.  Per Wetzel, Bradley is expected to provide eyewitness testimony regarding the shooting deaths of Daniel de Abreu and Safiro Furtado in July 2012.

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Patriots security chief confirms Hernandez’s alibi attempt


At the first Aaron Hernandez murder trial, Patriots owner Robert Kraft was followed to the witness stand by Patriots security director Mark Briggs.  And Briggs confirmed the most important aspect of Kraft’s testimony.

Via Dan Wetzel of Yahoo! Sports, Briggs (like Kraft) testified that Hernandez said he didn’t kill Lloyd, and that Hernandez was at a “club.”

He swore on his baby’s life he was telling the truth,” Briggs said of Hernandez.

Hernandez definitely wasn’t telling the truth about his whereabouts.  The prosecution will now hope that this will help the jury conclude he also wasn’t telling the truth about his innocence.

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Kraft tells jury Hernandez said he was in “club” during shooting


Testifying on Tuesday in the first Aaron Hernandez murder trial, Patriots owner Robert Kraft provided a piece of evidence that could be very useful for the prosecution.

Via Dan Wetzel of Yahoo! Sports, Kraft told jurors that Hernandez denied involvement in the murder of Odin Lloyd, explaining that he was in a “club” at the time of the shooting.

As Wetzel notes, the evidence introduced to date makes it clear that Hernandez wasn’t in a “club” at the time of the shooting.  Which indicates Hernandez lied to Kraft.

Hernandez may dispute that he gave a false explanation to the man who at the time of the shooting was Hernandez’s ultimate boss.  But Hernandez has only one way to rebut the testimony from Robert Kraft — by taking the witness stand.

That’s where the right to remain silent creates a huge dilemma for a criminal defendant.  While the accused isn’t compelled to testify in court, anything he has said out of court can be used against him.  Since it’s a statement from a party to the lawsuit, it’s not hearsay.  And as it relates to one-on-one communications, it’s unchallenged unless the defendant chooses to waive the right against self-incrimination and testify.

Hernandez most likely won’t be testifying at all.  To do so would expose him to cross-examination. Which could quickly erase any chance his lawyers have of identifying “reasonable doubt” during closing arguments.

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Robert Kraft takes the stand at Aaron Hernandez murder trial

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The Patriots had largely been able to keep themselves at arms length from the Aaron Hernandez murder trial, until today.

Via multiple reports, Patriots owner Robert Kraft is in the Fall River Justice Center today, and has been called to the stand.

Trainer Brian McDonough was called to the stand in late February to testify about a series of text messages he exchanged with Hernandez. McDonough doesn’t work for the team, but worked with a number of players at Gillette Stadium.

Coach Bill Belichick and linebacker Brandon Spikes are also on the witness list, though it’s unclear if they’ll actually be asked to testify.

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Jenkins admits to disposing of box, at Hernandez’s request


Shayanna Jenkins, the fiancée of accused triple-murderer Aaron Hernandez, previously faced perjury charges for allegedly lying to a grand jury about having no knowledge of disposing of a box that may have contained a key piece of evidence in the Odin Lloyd murder case.  At the trial regarding the June 2013 shooting death of Lloyd, Jenkins has admitted to disposing of the box — although she claimed to have no knowledge of its contents.

“He told me to go downstairs in our storage room and remove a box from our house,” Jenkins testified Monday, via Greg Bedard of

“I believe he said it was important, I’m not sure,” Jenkins added.  She later explained that she doesn’t remember whether he told her specifically why the box should be removed.

Jenkins admitted that she indeed disposed of the box, but that she doesn’t remember where she disposed of it.

Prosecutors have long believed that the box contained the murder weapon, a Glock used to repeatedly shoot Lloyd.  And the jury now has enough evidence to account for the absence of the murder weapon, since common sense suggests that innocent people rarely instruct a loved one to remove a box with unknown contents from the house during the early stages of an investigation arising from the murder of a friend whose body was found not far from the house from which the mystery box was removed and disposed.

On Friday, Jenkins admitted that she asked Hernandez if he killed Lloyd, and that Hernandez denied it.  The mere fact that she asked the question could become strong circumstantial evidence of guilty during jury deliberations.  While Hernandez’s denial is as useful as the standard response to the “do I look fat in these jeans?” question, the “hey, did you kill that guy?” question rarely gets floated in the households of the non-criminal.

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Strange developments at Hernandez trial


On Thursday, a bomb threat interrupted the first Aaron Hernandez murder trial.  On Friday, things could get even more interesting.

The day has begun with Judge E. Susan Garsh individually questioning the jurors, in the presence of the lawyers and Hernandez.  Via Michael McCann of Sports Illustrated, the jurors were standing two feet from Hernandez while fielding and answering questions.

It’s not known what the jurors are being asked, but it’s entirely possible (if not probable) that the judge and the lawyers are ensuring that each juror will continue to serve without bias or prejudice in the aftermath of Thursday’s events, for which an arrest has been made.

Once testimony resumes, Hernandez’s fiancée, Shayanna Jenkins, is expected to testify.  Via Michele Steele of ESPN, Jenkins has arrived in court wearing her engagement ring.  Which suggests that she won’t be flipping on Hernandez today, regardless of the immunity from prosecution that she has received.

Then again, the presence of the ring will make her testimony even more credible, if she provides information that hurts Hernandez’s case.  Prosecutors believe Jenkins disposed of the murder weapon.

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Hernandez’s fiancée due to testify on Friday


Apart from Thursday’s bomb threat, the first Aaron Hernandez murder trial hasn’t generated much news in recent weeks.  The circumstantial evidence points to Hernandez as the killer (or at least present during the killing) of Odin Lloyd, but there’s still no clear motive apart from Hernandez being generally reckless, completely unpredictable, and randomly violent.

Things could get far more interesting soon, when Hernandez’s fiancée, Shayanna Jenkins, shows up to testify.  Per multiple reports, Jenkins is due to take the stand on Friday.

Jenkins has received immunity, which gives the prosecution the power to compel her to testify — or to put her behind bars for contempt of court.  The question becomes whether she goes out of her way to be helpful, or whether she has truly flipped on the father of her child.

One factor that could make Jenkins flip?  A babysitter testified earlier this month that Hernandez once hit on her.  Coincidentally (or not), Jenkins hasn’t been seen in court since March 6.

If Jenkins has indeed flipped, she could testify that she disposed of a box that contained the murder weapon that still has not been found.  Prosecutors believe that’s exactly what she did.

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Lloyd’s phone pinged along path to site of shooting

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Of all the snippets of evidence that have emerged during the first five weeks of the first Aaron Hernandez murder trial, an item that emerged on Thursday resonates.  Literally.

Via the Associated Press, a T-Mobile employee testified that Odin Lloyd’s cell phone pinged multiple times along the route that prosecutors claim Hernandez took from Lloyd’s home to the industrial park where Lloyd’s body later was found.

Other recent testimony has included testimony regarding tire tracks at the scene, a coincidental homage to the late January Mona Lisa Vito comments from Hernandez’s former head coach.  Another witness linked Hernandez’s DNA to evidence found on a spent bullet casing and on a marijuana cigarette found at the scene of the crime.

As to the shell casing, Hernandez’s lawyers scored points by proving that the witness hadn’t been told a piece of gum that Hernandez had chewed had been stuck to the shell casing in the dumpster where the items had been placed when found in the car Hernandez had rented.

That’s an avoidable gaffe by the prosecution that could give jurors inclined to agree with the defense powerful ammunition for deliberations.  If the government would so nonchalantly produce inherently flawed evidence of DNA on a shell casing, what other flaws may be lurking in the overall body of proof?

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


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


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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