FALL RIVER, Mass. — Former New England Patriots tight end Aaron Hernandez won a potentially significant legal victory Tuesday when a judge barred prosecutors from using evidence taken from two cell phones and three tablet computers that had been seized from the player’s home in the early days of a 2013 murder investigation.
It’s not clear what evidence may have been on the devices – or whether prosecutors had planned to use any of it when Hernandez goes on trial in January in the June 17, 2013, killing of Odin Lloyd, who was gunned down in a secluded field less than a mile from the former football star’s home in North Attleboro, Mass.
Two associates of Hernandez’s have also been charged with murder in Lloyd’s death. And though prosecutors have alleged that Hernandez “orchestrated” the killing of Lloyd – they have yet to reveal who they believe fired the fatal shots.
Hernandez, who has been held without bail for 14 months – and faces separate charges in a 2012 double killing in South Boston – is scheduled to go on trial Jan. 9 on murder and weapons charges in the Lloyd case.
None of Hernandez’s three attorneys responded to messages Tuesday. Gregg Miliote, spokesman for Bristol County District Attorney Sam Sutter, said he could not comment on the ruling, citing a gag order in the case.
The ruling by Bristol County Superior Court Judge E. Susan Garsh included numerous criticisms of two state troopers who prepared and executed a search warrant at Hernandez’s home the day after Lloyd’s murder – in particular, she wrote in several places that she did not find court testimony of one of the officers to be credible.
Garsh’s ruling was the last dealing with efforts by Hernandez’s lawyers to throw out images from the player’s home surveillance system – one of which purportedly showed him with a gun in his hand shortly after Lloyd’s murder – as well as cell phones and iPads seized by officers.
Garsh earlier ruled that prosecutors were justified in taking a digital video recorder and a hard drive that were part of the home surveillance system as well as Hernandez’s personal phone, from which they gleaned extensive evidence, according to court documents.
A Massachusetts state trooper, Michael Cherven, prepared an affidavit in support of the search warrant. In it, he wrote that investigators were seeking “video surveillance system/components used at the residence.” That included “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 devices used for storing and viewing video data from this system” as well as a specific cellular phone that was identified by its number, any devices with Global Positioning System capability and, finally, a broken mirror that was missing from the Nissan Altima believed to have been used in the killing.
But when another trooper, Michael Bates, wrote up the application for a search warrant – a separate document – language about the GPS devices and the mirror were left off. Ditto on the warrant itself, which authorized the seizure of devices that were part of the home security system and Hernandez’s cell phone.
Garsh attributed the omissions to “carelessness” rather than a loss of interest in seizing those items.
She also concluded that Cherven didn’t bother to read the application: “Had he done so, he would have spotted the fact that the GPS devices and evidence of damage to the Altima were omitted from the description of the property sought to be searched.”
She also had considered whether the affidavit was attached to the application and warrant. If it was, it could have opened the door for her to rule that all of the items in the affidavit were effectively incorporated into the search warrant.
At a June 18 hearing, Cherven took the stand and testified that the documents were all attached to each other with a paperclip – both when a magistrate signed the warrant and when it was executed at Hernandez’s home. Cherven also testified that he personally carried the documents into Hernandez’s home and had them available “at all times” during the search of the home.
But video from area television stations contradicted that – showing that Cherven entered the home with nothing in his hands and that he spent a total of 7 minutes, 7 seconds in the home before leaving to conduct an interview with a potential witness at the North Attleboro police station.
“The court credits none of this testimony,” Garsh wrote. “Even if Cherven had brought the affidavit in a folder along with the search warrant to the residence, and the court finds that he did not, indisputably he was not present ‘at all times’ during the search.”
Prosecutors had argued that the cell phones and iPads could have been used to store images from the home security system and therefore were fair game even as the warrant itself was written. And, alternately, they argued that there was no way to know when looking at multiple cell phones which one had the number authorized by the warrant.
But the judge pointed out that investigators had already seized Hernandez’s cell phone before they took the other two from his home.
Prosecutors contend that Hernandez, angry at Lloyd after an incident at a Boston nightclub, summoned two friends from his hometown of Bristol, Conn., to his mansion late on the night of June 16, 2013. At the same time, they have alleged he contacted Lloyd and invited him to go out.
Prosecutors have asserted that Hernandez and his two associates – Carlos Ortiz and Ernest Wallace Jr. – drove to Boston, picked up Lloyd and returned to North Attleboro, pulling into a field surrounded by trees and mounds of construction materials early the next morning.
There, Lloyd was shot and killed.
Ortiz and Wallace have both also been charged with murder. Under a legal doctrine known as “joint venture,” a person can be convicted of murder even if someone else fired the fatal shots as long as he or she was involved in the killing.
Hernandez is separately charged with multiple counts of murder and assault in a July 16, 2012, incident in South Boston that left two men dead and another wounded.
In that case, prosecutors have alleged that Hernandez, angered that he was bumped on a nightclub dance floor, spilling his drink, followed a group of friends as they headed home, pulled up next to them at a stop light and opened fire with a handgun.
Two Cape Verdean immigrants, Daniel de Abreu, 29, and Safiro Furtado, 28, were shot and killed and a third man in the car was wounded.
Hernandez is scheduled to face trial in that case in May 2015, but there is speculation that his attorneys will seek to delay the trial on the argument that they won’t have enough time to prepare for it while also defending him in the Lloyd case.