Prosecutors got Hernandez conviction despite police missteps

FALL RIVER, Mass. -- Prosecutors won a murder conviction of former football star Aaron Hernandez on Wednesday despite police missteps and uncooperative witnesses.

To be sure, the case against Hernandez in the June 17, 2013, slaying of Odin Lloyd was highly circumstantial. Prosecutors had no eyewitnesses they could call to the stand – the other two men allegedly present, besides Hernandez and Lloyd, are both facing murder charges themselves – and they had no murder weapon.

That was all unavoidable.

But they also lost the chance to share potentially powerful evidence with jurors because of mistakes made by police officers – problems that led Judge E. Susan Garsh to rule in several cases that items discovered during the execution of search warrants were not admissible.

“This (was) a case based on circumstantial evidence in the sense that there’s no direct evidence of what happened in the industrial yard,” said Daniel Medwed, a criminal law professor at Northeastern University in Boston. “And in a case that’s based on circumstantial evidence, each piece of evidence adds weight to the inferences that can be drawn.”

But jurors could draw no inferences from evidence they didn’t get to consider – and other evidence they did see and hear may have appeared weaker to them as a result.

The prosecution’s core assertion was simple: that Hernandez, then the star tight end of the New England Patriots, grew angry with Lloyd after an incident at a Boston nightclub early the morning of June 15, 2013. Late the next day, Hernandez allegedly 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.

Then, according to prosecutors, 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.

Lloyd suffered six gunshot wounds – three of them fatal.

Detectives fairly quickly figured out the .45-caliber pistol that was used to kill Lloyd was manufactured by Glock, an Austrian company. The company’s guns have several one-of-a-kind design features, and they leave unique markings on both bullets fired by them and the spent shell casings.

And, in fact, a representative of the company, viewing images from Hernandez’s home surveillance system purported by prosecutors to show him holding the murder weapon both before and after the killing, concluded the gun was a Glock Model 21.

That’s because Judge Garsh ruled that a series of search warrants for an apartment in Franklin, Mass., that was leased by Hernandez were so devoid of probable cause that nothing investigators found there could be used in the trial.

That included a magazine for a .45-caliber Glock pistol loaded with several different brands of ammunition – the same brands as the shell casings found around Lloyd’s body. It was discovered inside a Hummer registered to Hernandez that had his fingerprint on the shift knob.

“That piece of evidence right there – that would have been a very strong piece of circumstantial evidence,” said longtime Boston criminal defense attorney Stephen Weymouth. “I’m not saying anything anybody else wouldn’t say.

“That’s a big mistake.”

Inside the apartment, detectives discovered four boxes of ammunition for a .45-caliber pistol and Ortiz’s cell phone – all not admissible.

In addition, the judge found problems with a search warrant served on Hernandez’s home in the early days of the Lloyd investigation.

As a result, prosecutors lost the chance to use evidence from two cell phones and three tablet computers because Judge Garsh found that detectives were sloppy in filling out the paperwork on the warrant, failing to copy over the specific details that had been in an affidavit approved by a judge. That might have been cured if the affidavit and the warrant were physically attached to each other, and she sought testimony from a Massachusetts state trooper, Michael Cherven, who said he carried the documents into Hernandez’s home at the time of the search and that they were, in fact, attached to each other. He also said he was present at “all times” during the search, and the documents were with him.

But television and surveillance footage of Cherven entering the house to serve the warrant showed that he had nothing in his hand, and other evidence showed he left minutes after arriving to conduct an interview at a police station several miles away. Garsh essentially called him a liar in her ruling.

“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.”

What was on those phones and tablet computers?

It’s not known. What is known is that one of those phones belonged to Hernandez’s fiancée, Shayanna Jenkins. And testimony at the trial showed that beginning several hours before the murder, Hernandez used it – not his own phone – several times.

“It’s a cautionary tale about how the police should abide by the Fourth Amendment,” Medwed said, referring to the constitutional right against unreasonable searches and seizures. “There’s a reason for it. The reason, of course, is to protect individual liberty and autonomy and prevent government overreaching.”

Other actions – or, rather, the lack of them – also opened a door for defense attorneys to challenge the thoroughness of the investigation.

Police never obtained a DNA sample from alleged accomplice Ernest Wallace Jr. – prosecutors contend they had no reason to, that by the time his attorney OK’d it all the testing was done on evidence and they had no “unknown” samples. But that allowed the defense to argue that prosecutors were so focused on Aaron Hernandez that they didn’t carry out a basic investigative step.

Police never tested a chewed piece of bubble gum that was stuck to a shell casing used in the murder. Prosecutors heralded the discovery of Aaron Hernandez’s DNA on the casing as powerful evidence of his involvement; but the failure to test the gum allowed the defense to argue that it – having been stuck to the casing when found in the trash -- was the source of Hernandez’s DNA and another sign of inept work by investigators.

And then there’s the issue of witnesses.

Prosecutors questioned the truthfulness of Hernandez’s fiancée, who is facing a perjury charge for her statements before the grand jury. She provided some testimony that was helpful for the prosecution – particularly about her effort to sneak a box out of their home that allegedly contained the murder weapon.

But she said she could not remember where she threw away the box, and time and again she said she didn’t remember things that she and Hernandez had discussed.

Questions also arose about the truthfulness of Hernandez’s cousin, Jennifer Mercado, who said at trial that Ortiz and Wallace smoked pot laced with PCP outside her house hours before the killing of Lloyd – despite earlier testifying before the grand jury that she was in the house and didn’t know what they were smoking at that time.

And Hernandez’s barber, Robbie Olivares, is believed to have been privy to the dispute at a Boston nightclub two days before the killing, but prosecutors scrapped plans to call him as a witness, apparently because they didn’t think they’d get truthful testimony from him.

“One of the challenges in trial practice is you can’t pick your witnesses, usually,” Medwed said. “You’re kind of stuck with the cards that you’re dealt.”

But all of that is Monday morning quarterbacking.

This jury was no different from every other one – it heard a limited amount of information and made its decision based on that.