National Football League

Bid to toss phone evidence in Aaron Hernandez case continues

Published Oct. 1, 2014 11:01 a.m. ET

foxsports

FALL RIVER, Mass. – The tenor in the courtroom was tense and clipped Wednesday – an attorney for former New England Patriots tight end Aaron Hernandez facing question after question about his thought process as homicide detectives sought to seize the player’s cell phone during a murder investigation.

Attorney Michael Fee, who represented Hernandez before the June 17, 2013, killing of Odin Lloyd and is part of his high-profile defense team today, was the target of the questions, some of which came from Judge E. Susan Garsh, as the fight over the use of that phone as evidence took up a second day.

Prosecutors want to use text messages and other evidence recovered from the phone when Hernandez goes to trial Jan. 9 on murder and weapons charges in the killing of Lloyd, who was gunned down in a secluded field less than a mile from the football star’s home in North Attleboro, Mass.

Those messages, prosecutors have asserted, bolster the allegation that Hernandez “orchestrated” Lloyd’s murder after a dispute at a Boston night club.

Hernandez’s lawyers are fighting to toss evidence from the phone on two fronts. In one motion, they have argued that two search warrants obtained the day after Lloyd’s killing didn’t authorize law officers to take possession of the BlackBerry from the player’s attorneys at the downtown Boston law firm of Ropes & Gray.

In their second motion, defense attorneys have challenged the use of the cell phone as evidence by asserting that investigators questioned Hernandez about its location outside the presence of his attorneys and without reading him his rights.

The judge began taking testimony on that second motion late in the day Wednesday after the bulk of court time was taken up by the fight over the validity of the warrants.

Shortly after Lloyd’s body was discovered, investigators found keys to a sport-utility vehicle in his pockets that was owned by Enterprise Rent-A-Car. A quick check with Enterprise found that Hernandez had rented the vehicle, and detectives went to his house to question him. He eventually told them he would go to the police station and be joined by his attorneys.

Later that night, Fee and attorney Robert Jones, both partners at Ropes & Gray, met with Hernandez and then investigators and prosecutors at the police station in North Attleboro.

After an assistant district attorney asked Fee whether he would voluntarily surrender Hernandez’s cell phone, the lawyer declined. He did acknowledge, however, that he would turn over the phone if there was a warrant issued for it.

On Wednesday, Fee found himself on the witness stand for an hour and 40 minutes. On the day authorities seized the phone, June 18, 2013, Fee was a partner at Ropes & Gray. He was questioned in excruciating detail about leaving his office that day, about getting a phone call from an assistant district attorney in which he was told there were search warrants for Hernandez’s home and phone and about the decision by he and Jones to turn over the phone.

Hernandez’s lawyers contend that a prosecutor duped Fee in that phone call into believing there was a valid warrant that let detectives to seize the phone from the law firm when, in fact, neither warrant allowed it to be taken from the offices of Ropes & Gray. And prosecutor William McCauley hammered away, trying to knock holes in that assertion.

For instance, he sought to underscore the fact that Jones voluntarily handed over the phone after receiving a copy of the warrant sent by text message. And that the interaction occurred not inside the law firm in a Boston high rise but in a public lobby on the ground floor of the building.

Under rapid-fire questions from McCauley, Fee acknowledged that he didn’t consult any other lawyers at Ropes & Gray – a firm with roughly 1,100 attorneys worldwide – about the validity of the warrant and that he didn’t direct Jones to examine it carefully before handing over the phone. He acknowledged that he didn’t immediately read the warrant – he was on his way to a birthday party and didn’t look closely at the document until much later that night. He acknowledged that a copy of the warrant was forwarded to two other lawyers for Hernandez, Charles Rankin and James Sultan. And that he didn’t ask any of them to check to make sure it was valid, either.

At other points, Fee tried to show that he believed at the time he had no choice but to turn over the phone.

“I indicated the night before if you get a search warrant, we’ll turn over,” Fee testified. “When the calendar turns April 15, I’ll pay my taxes. It’s an obligation.”

But it was a question from Judge Garsh that may have made McCauley’s strongest point.

“Was it your understanding that once the phone was in your physical possession that it could not be obtained without a warrant that specifically authorized a search at Ropes & Gray?” the judge asked.

“No,” Fee answered.

By mid-afternoon, testimony had ended and Judge Garsh took closing arguments from both sides.

Rankin challenged the validity of the warrant, contending repeatedly that a law protecting the attorney-client relationship meant detectives weren’t free to seize the warrant from Hernandez’s lawyers.

“Our position is that the warrant was not a valid warrant to seize Mr. Hernandez’s cell phone in these circumstances,” Rankin said. “This is a warrant that was issued and authorized the forensic examination of this cell phone, but not to seize this cell phone.”

Prosecutor Roger Michel argued just as vigorously that police acted properly.

“In this case, at every step what the police did was 100 percent authorized by the warrant or by the law.” He said.

According to previously filed court documents, Hernandez’s phone contained evidence of numerous contacts with Lloyd and with two alleged accomplices, Carlos Ortiz and Ernest Wallace Jr., in the hours leading up to the murder. Prosecutors contend that Hernandez summoned Ortiz and Wallace from his hometown of Bristol, Conn., to North Attleboro and at the same time made arrangements to meet with Lloyd.

Over the next several hours, according to court documents, numerous messages were exchanged between Hernandez’s phone and Lloyd, Ortiz and Wallace.

Prosecutors have alleged that Hernandez drove Ortiz and Wallace to the Dorchester section of Boston, where they picked up Lloyd. From there, the group allegedly returned to North Attleboro, where Lloyd was shot to death in a secluded field surrounded by piles of sand, gravel, asphalt and woods. The scene of the killing is about a half-mile from Hernandez’s home.

Hernandez, Ortiz and Wallace have all been indicted on murder charges. And Hernandez additionally faces weapons charges in the case.

Prosecutors have not disclosed who they think fired the fatal bullets.

Hernandez, who was cut by the Patriots within hours of his arrest on June 26, 2013, is scheduled to go to trial in January in Lloyd’s death.

And prosecutors want jurors to hear about the phone’s data – retrieved despite the fact it was in “three pieces” when it was turned over to a state trooper.

Judge Garsh is scheduled to continue taking testimony Thursday on defense motions challenging the validity of evidence.

Hernandez separately faces murder and assault charges in a different case – the July 16, 2012, killings of Brian de Abreu, 29, and Safiro Furtado, 28, and the wounding of a third man at a South Boston intersection. That case is scheduled for trial beginning next May 28, although it is likely to be pushed back.