Hernandez's lawyers hope motions change course of murder case
JUL 06, 2014 11:00a ET
Hernandez, the former Pro Bowl tight end who has been behind bars for more than a year, faces a trial scheduled to begin Oct. 6 in the 2013 slaying of Odin Lloyd in North Attleboro, Massachusetts.
It’s a complicated case. Prosecutors have alleged that Hernandez summoned two friends from his hometown of Bristol, Connecticut, to meet him in North Attleboro and at the same time was making arrangements to pick up Lloyd in Boston. According to court documents, investigators believe Hernandez and the other two men, Carlos Ortiz and Ernest Wallace Jr., drove to the Dorchester section of Boston, picked up Lloyd and then drove him back to North Attleboro.
Ortiz and Wallace have both also been charged with murder.
Prosecutors have said in court that Hernandez “orchestrated” Lloyd’s killing, but they haven’t revealed their theory of the case – and they don’t have to until they get before a jury.
And so it is that Hernandez’s lawyers have pressed two motions – one seeking the outright dismissal of the charges amid assertions that the evidence used to indict him was flimsy, the other seeking to bar the use of evidence taken from his home security system, including images showing him with a gun.
The first is seen as a legal long shot by experts – an effort that is not likely to succeed.
Hernandez’s lawyers have argued that prosecutors inundated a grand jury with damaging information – that the player smoked pot, for example, and that his cousin refused to testify – that cast him in a negative light but did nothing to establish that there was strong evidence showing he had killed Lloyd, 27.
However, prosecutors have wide latitude in what they put before a grand jury, and they did establish numerous ties between Hernandez and Lloyd on the night he was killed. They showed cell phone communications between the two and video surveillance images of Lloyd getting into a rented Nissan allegedly driven by Hernandez, and they stressed that the killing happened about a half-mile from the star player’s mansion in Bristol County.
Bristol County Superior Court Judge E. Susan Garsh has listened to arguments on both sides, and a ruling is pending.
But while there are serious questions about whether that motion will succeed, it’s the effort to toss out evidence that has raised more questions.
That evidence includes images from Hernandez’s home security system that prosecutors have alleged show him holding a pistol shortly after the time Lloyd was gunned down a short distance away.
Hernandez’s lawyers have argued that there was not enough evidence tying Hernandez to a crime to justify the warrant. They’ve raised questions about information used in the warrant that was provided by Hernandez’s fiancée, Shayanna Jenkins. They’ve asserted that the warrant didn’t provide legal justification for the seizure of three iPads and two cell phones that were taken in addition to the home surveillance system.
On the night Lloyd’s body was found, Jenkins drove Hernandez to the police station in North Attleboro so he and his attorneys could meet with detectives. As she was driving away from the station, police officers flashed their lights at her, and she pulled over and spoke with them – and some of her statements were included in the affidavit used to obtain the search warrant. She told them, for instance, that a home surveillance system had recently been installed in the home she and Hernandez shared.
Hernandez’s lawyers have argued that the stop of Jenkins was unlawful – that she was suspected of no crime, and she was, in effect, pulled over and detained by officers.
Prosecutors, however, have countered that the officers had merely used their lights to get Jenkins’ attention, that she was free to leave throughout the time she was talking to officers and that there was nothing about the stop that was improper.
During a hearing last month, questions arose about the actual language in the affidavit – essentially a sworn statement filed by a law officer to obtain a warrant – and in the warrant itself.
In this case, the affidavit spoke of allowing detectives to “seize the video surveillance system” in Hernandez’s home as well as “any electronic data stored as part of the video surveillance system to include but not limited to hard drives, external storage devices, compact discs, computers, laptops, flash drives or any other data storage device used for storing and viewing video data from the residential surveillance system.”
The affidavit separately sought a warrant for one cell phone – specifying it by its number.
The warrant itself listed the video surveillance system, including “components used at the residence” and that single cell phone.
But detectives took three iPads and two cell phones.
Judge Garsh has questioned whether the warrant authorized the seizure of those tablets and phones, asking whether affidavit was “incorporated by reference” and physically attached to the warrant. Absent that, she has said the warrant would “suggest” to her that the judge who signed it had authorized officers to take only that one specific phone.
Prosecutors have countered with an argument of their own – that the phones and the iPads could be considered storage devices for the home security system and that the warrant and affidavit were, in effect, one in the same
And in a follow-up hearing, prosecutors called Massachusetts State Trooper Michael Cherven into court.
Cherven testified that the warrant and the affidavit were attached to each other with a paper clip – both when a judge signed the warrant and when Cherven entered Hernandez’s home later that day to serve it. He testified that he had the warrant and affidavit in a manila file folder.
But in a subsequent filing, Hernandez’s lawyers asserted that a newspaper photograph and television footage both captured when the warrant was served the evening of June 18, 2013 – a day after Lloyd’s body was discovered – call into question Cherven’s testimony. A photograph in the Attleboro Sun Chronicle, they asserted, showed Cherven and other officers entering Hernandez’s home to serve the warrant.
“Both of his hands are visible, and he has no manila file folder or anything else in his hands,” Hernandez’s attorneys wrote.
Hernandez’s lawyers also said television footage shot at the same time showed the same thing – nothing in Cherven’s hands.
Hernandez is scheduled to be back in court Monday, and Garsh could rule on the motions at that hearing. She could also rule on a request from Hernandez’s lawyers for a subpoena to obtain raw footage from five television outlets believed to have filmed the arrival of officers to search the player’s home.
But even if Hernandez’s lawyers prevail on one of their motions, the former player is facing numerous other legal issues.
Hernandez has been indicted in a separate case in Boston – the 2012 murder of two men and wounding of a third at a traffic light in the city’s theater district.
Hernandez faces a separate trial, now scheduled for May 28, 2015, in the killings of Daniel de Abreu, 29, and Safiro Furtado, 28.
Prosecutors in Boston have alleged that Hernandez gunned down the two men and wounded a third after a dispute at a night club that allegedly began when de Abreu allegedly bumped the player on a dance floor and spilled his drink.
And Hernandez is facing civil lawsuits filed by the families of Lloyd, de Abreu and Furtado and another filed by a former associate who has accused Hernandez of shooting him in the fact after a dispute in Florida.