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Aaron Hernandez trial analysis: Too many unanswered questions for jurors?

Published Apr. 7, 2015 3:32 p.m. ET

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Aaron Hernandez’s fate rests in the hands of 12 men and women who sat in court for 41 days, listened to 135 witnesses, and saw 437 exhibits.

They have to consider all that testimony and all those exhibits, which include hundreds of pages of phone records and dozens of hours of surveillance video, and decide whether the former start tight end of the New England Patriots is guilty of murder in the June 17, 2013 death of Odin Lloyd.

On Tuesday, those men and women listened to two very different interpretations of the evidence, and the inferences that can be drawn from it, as first a defense attorney and then a prosecutor had his last chance to sway the jury during closing arguments.

Judge E. Susan Garsh gave each side 90 minutes. Defense attorney James Sultan and prosecutor William McCauley each used all but two of them.

Sultan, who was aggressive and combative in his cross-examination of numerous law enforcement witnesses, was up first, and he showed a more subdued side of himself, speaking calmly, almost quietly, before the jury box to Judge Garsh’s left.

But he repeatedly returned to one of the assertions he made throughout the trial — the charge that police and prosecutors conducted a haphazard investigation aimed at one thing: convicting Aaron Hernandez.

“In sum, the investigation done in this case was incomplete, biased and inept,” Sultan said at one point. “That was not fair to Odin Lloyd. That was not fair to Aaron Hernandez. And it was not fair to you because it left you with a whole bunch of unanswered questions and not enough proof, and that’s all you’ve got to work with.”

Lead prosecutor William McCauley argued just the opposite, urging jurors to consider the evidence, to follow it where it leads them and to use their minds.

“If you do that, you get to where you need to go,” he said. “And that’s to find the defendant guilty.”

Jurors must reach unanimous verdicts on each of the three charges Hernandez’s faces: Murder, gun possession and ammunition possession.

To convict Hernandez of murder, the jury does not have to conclude, necessarily, that he fired the shots that killed Lloyd — only that he was involved in the slaying and that he did so with intent. The gun possession charge is based on the allegation that Hernandez had the murder weapon, which has never been found, at the time of the killing. And the ammunition charge is based on the discovery of a box of .22-caliber bullets in a safe inside Hernandez’s home.

Prosecutors built the highly circumstantial case against Hernandez using voluminous cell phone data, including both text messages and tracking information, as well as surveillance camera footage, fingerprints, a tire track, a shoe impression and ballistics.

They allege that Hernandez grew angry with Lloyd after an incident at a Boston nightclub early the morning of June 15, 2013. They contend that late the next night, Hernandez summoned longtime associates Carlos Ortiz and Ernest Wallace Jr. from his hometown of Bristol, Conn., to his house in North Attleboro, Mass., and at the same time sent a series of text messages arranging to meet with Lloyd.

Lloyd was dating the sister of Hernandez’s fiancée, and he was also one of his pot suppliers.

At that point, they allege that Hernandez drove Ortiz and Wallace to Boston to pick up Lloyd, then returned to North Attleboro and pulled into a secluded field in an industrial park less than a mile from the player’s home.

There, Lloyd was gunned down, suffering six wounds, three of which would have been fatal by themselves.

Now the question is what will the jury believe — which witnesses will it find credible, which pieces of evidence will it find persuasive, which inferences will it draw in those places where more than one interpretation is possible?

Will jurors find importance in the discovery of a footprint near Lloyd’s body left by the same type of shoe owned by Hernandez — or will they discredit it because police officers, by their own admission, didn’t photograph every footprint at the murder scene?

Will they conclude that Hernandez was holding a Glock pistol in home surveillance footage — or will they decide the images aren’t clear enough?

Will they fixate on the motive — or the lack of one — or will they decide they don’t need to know exactly what was behind the killing?

And will they see police investigators as humans who aren’t perfect who have been subject to Monday morning quarterbacking — or as bumbling, ill-trained detectives who rushed to pin an inexplicable murder on Hernandez?

Sultan would answer those questions one way, McCauley another.

“The police and prosecutors have tremendous power, and with that power comes responsibility — the responsibility to conduct a complete and a fair investigation of all the evidence, to be objective, to look at all the evidence first, and then see where they end up, not to start with a conclusion and then look for evidence that fits that conclusion,” Sultan said.

Sultan hit on the perceived lack of motive, despite the fact the prosecution does not have to provide one.

“If there was evidence of any reason that Aaron had to murder Odin Lloyd, don’t you think you would have heard about it in nine weeks?” Sultan asked. “You didn’t hear about it because it doesn’t exist.”

And he hammered away at the police with a single piece of evidence: a shell casing discovered in the rented Nissan Altima used in the crime that had Hernandez’s DNA on it. The DNA match had been heralded by a prosecutor in his opening statement as proof of Hernandez’s involvement.

That casing was found under the driver’s seat of the Nissan by an Enterprise Rent-A-Car manager who testified that she gathered it up with a chewed piece of gum, a child’s drawing and an empty Vitamin Water bottle.

When police officers retrieved those items from a dumpster at the Enterprise office, the chewed piece of gum was stuck to the shell casing. They were later separated, and Hernandez’s DNA was discovered on the shell casing.

Defense attorneys contend Hernandez’s DNA was transferred to the shell casing from the gum, and Sultan held up a photograph of the blue Bubble Yum stuck to the cartridge.

“There’s a saying that a picture is worth 1,000 words,” Sultan said. “This picture tells you everything you need to know about the investigation in this case.”

And then he turned to the assertion that Ortiz and Wallace had smoked PCP hours before the slaying and that one of them could have, in Sultan’s words, been subject to “a sudden violent outburst.”

He suggested that either of them could be the killer — and that, in any case, prosecutors don’t know what really happened.

He also tried to deal with Hernandez’s actions after the killing: instructing his fiancée to meet with Wallace to give him money, directing her to get rid of a box that prosecutors allege contained the murder weapon, lounging by the pool and playing with his young daughter and letting his alleged accomplices hold his daughter.

“Did he make all the right decisions?” Sultan asked. “No. Did he make all the right choices? No. He was a 23-year-old kid who had witnesses something — a shocking killing, committed by somebody he knew. He really didn’t know what to do, so he just put one foot in front of the other.”

Sultan reminded the jurors the prosecution has to prove that Hernandez participated in the crime and did so with intent.

“Even if you find he was present, that’s not enough,” Sultan said. “Even if you find he associated with the perpetrators, that’s not enough. Even if you find he knew it was going to happen, that’s not enough. Even if you find he didn’t do anything to stop it, that’s not enough. Even if you find he may have been involved, that’s not enough. Even if you find he was probably involved, that’s not enough. Even if you find there was a strong likelihood he was involved, that’s not enough. Even if you find he helped cover it up or assisted the perpetrator afterward, that’s not enough.

“It’s hard to convict someone of murder in our system of justice. It’s supposed to be hard.”

Sultan wrapped up by asking the jurors to consider the four words chiseled in stone over the entrance to the U.S. Supreme Court: “Equal Justice Under Law.”

“Don’t make a mistake,” Sultan said. “Your decision is final. I ask you, I implore you, based on the evidence, and based on the lack of evidence, to find Aaron Hernandez not guilty of the murder of Odin Lloyd.”

McCauley began by stressing the interaction between Hernandez and Lloyd at a Boston nightclub two days before the murder — pointing to testimony that the player grew agitated and aggressive and ultimately returned to his car and grabbed a gun.

He reminded jurors that once Hernandez had arranged to pick up Lloyd, he stopped using his phone — it was ultimately off for roughly 22 hours — and began using his fiancee’s.

And he pointed out that Patriots owner Robert Kraft testified that Hernandez told him he hoped the time of the murder came out because he was at a club. Hernandez, his fiancée and four others spent time at a Providence, R.I., café, where they had their picture taken and where the player used his credit card to pay the tab.

“How would he know about the time of the murder unless he was present?” McCauley asked. ‘’He’s giving a false alibi. He’s already put himself at the club. He’s already got a credit card receipt. He’s taken a photo.”

McCauley repeatedly said there was no other logical explanation for Hernandez’s actions. He pointed to Hernandez picking up Lloyd at 2:32 a.m. and driving him nearly 50 miles to a secluded field not far from his own home.

“Ask yourself what was the purpose of driving to that spot at that time. … Driving down, turning a car around, and all of a sudden a murder occurs,” McCauley said. “There was no other purpose to go down there. They weren’t ‘stepping out.’ He was two minutes from his home, as you heard in the evidence.”

And he pounded away at footage from Hernandez’s own home surveillance system, even playing clips that he asserted show the player with a black handgun.

“The gun, in the house,” McCauley said. “He’s got the gun in his house after the homicide. After a homcide, who would be walking around with a gun in his hand, like it was a trophy of some kind? Who would keep a gun in the house? You know who would: Aaron Hernandez would. Because no one would ever believe it, right?

“Decide this case on the evidence. The evidence you believe. The evidence you credit.”

McCauley questioned the defense’s assertion of PCP use by Ortiz and Wallace — something that was raised for the first time on the witness stand by Hernandez’s cousin, Jennifer Mercado, who said she saw the two of them smoking and the odor told her it was marijuana mixed with the drug known on the street as “angel dust.” Mercado, McCauley pointed out, had said during earlier testimony before a grand jury that she was in the house and did not see the two of them smoking.

“Now, on a thread of a lie, she’s going to come in and suggest to you people that PCP is in this case. Why? Because it gives this guy an excuse,” McCauley said, pointing at Hernandez. “So where is PCP in this case? Why is it in this case? It’s a distraction, and it’s been manufactured by Jennifer Mercado.  … So why is PCP in this case? To shift your focus — oh, somebody is on PCP, they must have gone bananas.”

McCauley also tried to deal with the perception of mistakes by police, telling jurors they should decide on the adequacy of the investigation and that Hernandez’s motive doesn’t have to be clear.

“The defendant had a motive in this case to kill him,” McCauley said. “Whether it was a good motive or a bad motive, he believed he could kill Odin Lloyd and nobody would ever believe he was involved. I’m asking you to look at the evidence.”

He closed by urging the jurors to consider the evidence carefully, to discuss it thoroughly.

“At the end of the case, I’m going to suggest to you that if you do that, that verdict will be to find the defendant guilty of first-degree murder,” McCauley said. “We cannot ask anything more of a jury, but we should not expect anything less.”

After lunch, Judge Garsh went through extensive instructions, and she made it clear that it is up to the jurors, and no one else, to decide the verdict.

“You alone decide what evidence to accept, what to believe about the evidence you accept, and what conclusions the evidence leads you to,” she said.

Jurors will go all day every day until they reach verdicts on the three charges.

Ortiz and Wallace also have been charged with murder and will be tried separately.

And no matter what happens in this case, Hernandez’s legal troubles aren’t over.

He has separately been indicted on multiple murder and assault charges in the July 16, 2012 shooting that killed Daniel De Abreu, 29, and Safiro Furtado, 28, in Boston. Another man was wounded. That trial, set to begin May 28, is expected to be pushed back until sometime later this year or to early 2016.

He faces another trial on allegations that he had a high-powered rifle, an illegal magazine and ammunition in his home when it was searched as part of the Lloyd investigation.

And, finally, he has been indicted on an assault and battery charge in the wake of a jailhouse fight and on a charge of threatening an officer.

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