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First Hernandez murder trial could start Tuesday

Hernandez AP

With jury selection nearly complete, the first murder trial against former Patriots tight end Aaron Hernandez could begin as soon as Tuesday, with opening statements.

Via the Associated Press, Judge E. Susan Garsh has cleared a pool of 53 potential jurors.  The judge individually questioned the jurors in search of potential bias, a hardship that would prevent them from serving on a lengthy trial, or any other valid reason to be excused.

The lawyers for the prosecution and for Hernandez will be permitted to eliminate 18 potential jurors each from the panel.  The goal will be to have 18 jurors (12 main jurors and six alternates) in place for Tuesday.

If my math is correct (and it rarely is), Judge Garsh will need to clear one more juror to allow 36 to be stricken by the parties.  With only 53, striking 36 would leave 17.

Hernandez is accused of killing Odin Lloyd in June 2013.  Hernandez faces two other murder charges from an incident in July 2012.

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Hernandez jury selection yields 21 potential jurors, with more to come

Judge AP

What started as more than 1,000 potential jurors for the first Aaron Hernandez murder case is currently much smaller.

Via the Associated Press, the current potential pool of jurors stands at 21 as a result of questioning from Judge E. Susan Garsh.  The process is occurring in open court, but with the questions and answers beyond the hearing of the media or spectators.

The process resumes Tuesday, with more questioning and, presumably, more jurors.  Eventually, a panel of 18 will be selected; 12 jurors and six alternates.

The alternates will be required to sit through the entire trial, hearing all the evidence and being prepared to participate in deliberations if members of the primary panel become unavailable to continue.  Once the trial ends and deliberations begin, the alternates get a “thank you” and “farewell.”

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Hernandez’s lawyers want to know if fiancée has a deal with prosecutor

Jenkins AP

As the first murder case against former Patriots tight end Aaron Hernandez moves toward the selection of a jury and, eventually, the taking of testimony, one fairly significant chunk of testimony could come from Hernandez’s fiancée, Shayanna Jenkins.

Charged with perjury, Jenkins possibly has a deal that would include resolving the charges in exchange for testimony against Hernandez.  According to Martin Finucane of the Boston Globe, Hernandez’s lawyers want to know if such a deal exists.

Hernandez’s attorneys have filed a motion with the presiding judge seeking an order requiring the prosecutors to “disclose forthwith all promises, rewards, or inducements” made to Jenkins.

Last week, the Globe reported that Jenkins had a confidential meeting with prosecutors and her lawyer, which suggested that she possibly will be negotiating an agreement to testify against Hernandez.  She allegedly lied to the grand jury investigating the case.

The fact that Hernandez’s lawyers had to file a motion to find out whether Jenkins has a deal with prosecutors suggests that the relationship between Hernandez and Jenkins has changed in a significant and fundamental way.  Hernandez fears that she’ll be showing up to testify against him at trial, and Hernandez’s lawyers want to know if the mother of his child is about to send him up the river.

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Phase One of Hernandez jury selection ends

Hernandez AP

The first murder case against former Patriots tight end Aaron Hernandez can’t officially go to trial until a jury is selected.  Over the past three days business days, the first phase of jury selection has unfolded.

Per multiple reports, more than 1,000 prospective jurors completed 51-question surveys.  Topics included whether the jurors are Patriots fans and whether they have attended Patriots games — obvious subjects for screening the members of the prospective jury panel.

Phase Two consists of actually questioning the potential jurors.  Judge E. Susan Garsh has declined a request from CNN that the questioning, which in Massachusetts occurs beyond the hearing of spectators, be made audible for media purposes.  Questioning of jurors will begin Friday.

Hernandez is accused of killing 27-year-old Odin Lloyd in June 2013 near Hernandez’s North Attelborough home.  Hernandez has been indicted on two separate murder charges arising from a July 2012 shooting in Boston.

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Jurors will see Hernandez’s trophy case when touring his home


The first Aaron Hernandez murder trial will include, eventually, a field trip.  Jurors will tour the home of the former Patriot.  When they do, they’ll get to see his trophy case, despite an objection by the prosecution.

Via the Associated Press, prosecutors hoped to have the trophy case hidden, so that Hernandez would not “get the benefit of having the jury be impressed by trophies or medals.”

Prosecutors also are concerned about “strategic manipulation” of the home, aimed at making Hernandez look like a family man.  A religious man.  Basically, a non-three-alleged-murders-that-we-know-of man.

Hernandez’s lawyers predictably want the trophies displayed.  “The fact the Mr. Hernandez played for the Patriots, that’s in the case,” one of his lawyers wrote in opposition to the effort to hide the case.  “The trial is about the truth.  This is the truth of his house.”

The skirmish provides a glimpse of the many minor, trivial issues over which lawyers obsess.  Some would say thinking a juror would be more inclined to acquit Hernandez after seeing his trophies underestimates juries.  Some would say that thinking a juror wouldn’t be affected by seeing the trophies overestimates juries.  Either way, both sides in a trial push for the things that could help their clients and oppose the things that could hurt their clients.

Hernandez scored another victory in Tuesday’s final pre-trial conference.  His fiancée, Shayanna Jenkins, and mother, Terri Hernandez, will be permitted to attend the trial even though they may testify.  This allows them to hear the opening statements and the testimony of other witnesses, which allows them to tailor their own testimony accordingly.  That’s why witnesses who have not yet testified typically are barred from attending a trial.

Jury selection, which had been due to begin Monday, starts Friday.  Still pending, per the Boston Herald, is a request by Hernandez’s lawyers to prevent Bristol County Sheriff Thomas M. Hodgson from talking about Hernandez during the trial.  Hodgson has commented on multiple occasions about Hernandez’s time in the Bristol County jail; Hernandez’s lawyers fear that Hodgson will pop off during the trial.

Of course, that won’t matter if the jurors honor their obligation to avoid media accounts regarding the case.  Then again, if the jurors don’t honor their obligation to avoid media accounts regarding the case, Hernandez has far bigger problems that Hodgson talking about Hernandez’s jailhouse habits.

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First Hernandez case gets new top prosecutor

Hernandez AP

On Monday, former Patriots tight end Aaron Hernandez stands trial on the first of three (yes, three) murder charges.  And the case now has a new lead prosecutor.

With Bristol County district attorney Sam Sutter becoming the mayor of Fall River, outgoing Massachusetts Governor Deval Patrick appointed current assistant D.A. Thomas M. Quinn III to serve as acting district attorney.

“I am making this appointment now to assure the stability of the critical work of the office and fully respect the authority of the incoming governor to make his own appointment in due course,” Patrick said in a statement, via CBS Boston.

“It is very important for the office on the eve of one of the most highly publicized trials in the country,” Sutter said in a statement of his own.

Meanwhile, Hernandez’s lawyers have asked that his fiancée, Shayanna Jenkins, and mother, Terri Hernandez, be permitted to attend the trial regarding the June 2013 shooting death of Odin Lloyd.  Since both are potential witnesses, the normal approach would be to bar them from observing the proceedings and hearing the testimony of other witnesses.

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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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