Aaron Hernandez Trial (Odin Lloyd)

[Rovin Romine]

Greenblatt was a fairly straightforward witness, but wasn't very effective for the defense.   
 
He got dinged a bit on cross when he refused to admit that he didn't have any conscious memory of treating/observing someone on PCP.  (He said he was a physician in the early 70s in an emergency room, where he may have treated people who may have been on PCP.)  
 
He does not appear to be a PCP expert per se.  He's more like a MD who has read medical literature on PCP, but hasn't made it a focus of his work.  He can't recall if he's written articles on PCP. 
 
He also couldn't recall his prior testimony as an expert witness in other cases.  (IMO that looks super bad to a jury and screams 'gun for hire.')
 
The prosecution did a nice job of diluting the testimony by going after him as a sort of "non-expert expert."
 
They also showed him the video of AH/Wallace/Ortiz int he driveway.  No way to tell if any of these people are exhibiting PCP psychosis (or not).
 
The walkaways:
PCP can make one schizophrenic-ish.  (Paranoia, violent outbursts, etc.)
Or not.  
This "PCP psychosis" can come on quickly.
Or not. 
It can last for a long time.
Or not. 
You can't know if someone is on PCP unless you chemically test them.  
You can't simply observe someone and know if they're on PCP.  
Greenblatt has no evidence that PCP was involved in this case.
 
MJ does not cause violent behavior.  

 

[Jnai]

Maybe I'm about to reveal more about my lack of knowledge of our legal system than anything else, but if this is the primary defense of a client with essentially limitless resources, why wouldn't the defense be able to produce someone with better PCP credentials or at least someone who's willing to say "hey, that's a PCP-like behavior in that there video"?

 

[Rovin Romine]

I'm sorry to call this out. you know I tihnk you are a valuable guy, but the whole thrust of this argument is law vs. humanity and they don't always jibe.  You can't just apply an objective measured standard to human emotion.  This is the disconnect.  Koufax's reaction and empathy was human.  You can not "get it" but that doesn't mean you can argue your way into forcing someone else to your point of view.  This is like the people talking about depression who think "it's just in your head, turn it off."  
 
We shouldn't burden jurors, but it is a human reaction to feel that burden.  Survivors of tragedy shouldn't feel guilt that they survived, do you want to go talk to those support groups and just tell them "you're not being logical, stop."

 
No worries - debate is good, calling me out for something I said is fair game. 
 
FWIW, I'm not trying to argue down Koufax's human empathy, nor am I saying the system is perfect.  I'm just trying to point out that there are often many intervening factors/actions/events/decision points between a jury verdict and "what the guy does later in life."  Discussing this dynamic may make it easier for people to conceptualize their role as jurors.  How we view the events in the world (our conceptualization of causation and responsibility and so forth) in part creates our emotional reactions to those events.  So it's not that I'm trying to say, "I'm logically right, go soak your head," so much as I'm trying to say, "Maybe we shouldn't feel this way, but do because of some common assumptions we're making."
 
As I said somewhere upthread, like Koufax, I'd probably take some of the responsibility on myself, no matter that I know it's not rational.  I'm just that way.

 

[Rovin Romine]

Maybe I'm about to reveal more about my lack of knowledge of our legal system than anything else, but if this is the primary defense of a client with essentially limitless resources, why wouldn't the defense be able to produce someone with better PCP credentials or at least someone who's willing to say "hey, that's a PCP-like behavior in that there video"?

 
Excellent question.  I'm sure the jury is thinking the same.  
 
It's always dangerous for the defense to put on anything less than solid.  While there is a benefit in that "anything" could act as possible reasonable doubt, a jury could "shift the burden" and start to expect/require the defense to do something affirmative to prove innocence.  Even if that isn't a danger (you can never fully know if it is or not), you run the risk of diluting your own reasonable doubt arguments - essentially transforming what is a "reasonable" doubt into a "speculative" doubt or "imaginative doubt" or "far flung theory." 
 
Personally I think the Ortiz/Wallace on PCP defense was stronger before Greenblatt and weaker after Greenblatt.   Before G, we had the cousin/aunt saying they smoked PCP and acted crazy.   After G, who is supposedly there to validate the PCP theory, we have no indication that any of the video shows O/W acting crazy.  G couldn't even affirmatively say the behavior looked odd.  
 
Edit - thinking about it, this may have been one of the most crucial witnesses in the case.  I still think the "O/W flipped out" defense is the best option at this point.  Greenblatt may have definitively sunk that though. Some defenses are best left "undeveloped." 

 

[Shelterdog]

Did I miss it or did they not question the expert on what he was paid? Is that not allowed in Mass?

 

[epraz]

 
No worries - debate is good, calling me out for something I said is fair game. 
 
FWIW, I'm not trying to argue down Koufax's human empathy, nor am I saying the system is perfect.  I'm just trying to point out that there are often many intervening factors/actions/events/decision points between a jury verdict and "what the guy does later in life."  Discussing this dynamic may make it easier for people to conceptualize their role as jurors.  How we view the events in the world (our conceptualization of causation and responsibility and so forth) in part creates our emotional reactions to those events.  So it's not that I'm trying to say, "I'm logically right, go soak your head," so much as I'm trying to say, "Maybe we shouldn't feel this way, but do because of some common assumptions we're making."
 
As I said somewhere upthread, like Koufax, I'd probably take some of the responsibility on myself, no matter that I know it's not rational.  I'm just that way.

 
To me, everyone involved in the trial process (save the defendant and victims) is expected to play a part in the process, swallow any doubts, and rely on the system to accomplish justice.  Juries exonerate people who committed crimes and let the guilty go free, prosecutors argue every day to put innocent people in jail, defense attorneys work to secure the freedom of the guilty.  But that's the system, and nobody within it has the responsibility (or the ability) to get it right.  
 
I mentioned above that I was on a jury where we acquitted.  I'm pretty sure the defendant was guilty, but the prosecution didn't put on a case that cleared reasonable doubt and allowed us to convict.  If we had decided to convict anyway, it would've been a corruption of the system.  We played our part and acquitted, and I wouldn't feel any personal responsibility if I learned that the defendant later committed crimes because of his acquittal.  

 

[GeorgeCostanza]

Is it fair to say that the defenses case in chief is essentially "the state didn't meet their burden"?

 

[MentalDisabldLst]

We played our part and acquitted, and I wouldn't feel any personal responsibility if I learned that the defendant later committed crimes because of his acquittal.  

 
My problem is with the word "because".  He might commit crimes after his acquittal.  That would be up to his free will.  It would not, in any way, be as a result of his acquittal, in the sense that the acquittal caused it.

 

[Rovin Romine]

Defense witness 2.  Eric Coreita.  Private Forensic Consultant. 
 
DNA guy.  He's a bit animated, but is testifying directly to the jury.  Pretty good demeanor - clearly he's testified before.
 
He'll be testifying as to the DNA results on the gum/shell casing.  I'm not sure that he'll add anything to the jury's knowledge (based on the earlier defense cross).  Basically AH's DNA is on the gum.  The gum touched the .45 shell casing in the dumpster.  So the DNA could have been on:
a) only the gum (transferred) - likely.
b) on both - possible.
c) only the casing (transferred) - unlikely. 
 
So, the DNA could have gotten on the casing before or after the killing. 
 
We'll see what he says. . .

 

[epraz]

 
My problem is with the word "because".  He might commit crimes after his acquittal.  That would be up to his free will.  It would not, in any way, be as a result of his acquittal, in the sense that the acquittal caused it.

 
Agreed.  Some people feel that their acquitting the hypothetical perpetrator was a but-for cause of the later crime that could've somehow been avoided by convicting him of an earlier crime.  I'm saying that even if you could prove that acquitting the defendant in my case allowed him to commit a later crime that he couldn't have otherwise, I wouldn't feel any regret about my role in the trial.

 

[Prodigal Sox]

Isn't one of the questions for a juror always do you know anyone involved including the lawyers?

How did they ever allow you on the jury being friends with one of the teams?

  
I had a woman that worked for me; husband was an undercover narcotics officer.  Had been to her house several times for cookouts/barbecues, pretty much met every other undercover narc on the force.  Only knew them by their funny often obscene nicknames.  Great bunch of guys doing an extremely stressful, dangerous job.  Pretty much looked like Aryan biker gangs except their hands/fingernails were way to clean.
 
I get called for jury duty end up in a jury pool of about 50 people and they are going over the basics for the trial before they start to call random numbers assigned to each of us.  They tell us it’s a drug trial, ask if any of us have problems with that.  I almost raise my hand because of my issue with drug laws but decide “hey it’s the law and my civic duty and I’m not getting picked anyway”.  They also mention the officers who will be testifying and if we know any of them.  I don’t recognize any of the names (see above) but you can see were this is going. 
 
So, they start calling numbers, the attorneys are issuing their challenges and we get to the point where they are about to seat the jury.  I’m thinking I’m home free.  Nope, one last late challenge, my number gets called and I’m seated with the rest of the jury.
 
Trial starts and we break for lunch.  I’m leaving to get something to eat and go by a seating area with a couple of couches where people waiting to testify hang out.  Hear my name called and look back to recognize a couple undercover cops I have met in the past.  They ask what I’m doing here, I tell them, and they start laughing.  Yep, they will be testifying.
 
After lunch I find the bailiff to let him know what’s going on.  He tells the judge.  I get called up to the bench with both attorneys and they put on the noise cone of silence thing they have so no one can hear the conversation.  I give them the background, the judge asks me if it would influence my ability to assess the believability of testimony and I answer no.  She asks the attorneys if either has a problem leaving me on the jury.  Neither one does.  I’m flabbergasted. 
 
Trial goes on, goes to deliberations.  Most of us can’t even understand why it went to trial since the defense was so flimsy. Regardless we take a couple hours, go over the facts/testimony before we vote to convict.  Every one of the twelve approaches it with the utmost of seriousness.  I think everyone understood that this decision was going to considerably affect the rest (or at least a significant amount of it) of someone’s life.

 

[Rovin Romine]

Is it fair to say that the defenses case in chief is essentially "the state didn't meet their burden"?

 
Technically, it always is.  The state has to prove the case beyond a reasonable doubt.  If they fail, for any reason (totally shitty case, excellent alibi, he said she said, strongish case but some unrecoverable flaws) it's always an acquittal because the state didn't meet their burden to prove the case BRD.
 
(Sometimes there's a "legal defense" - meaning the facts of the "crime" happened but the "crime" was justified.  Self Defense is a good example.  But it's easier just to think of that as a variant of the state failing to prove the crime ('cause it's not a crime).)
 
However, your question may mean, "is there a positive narrative (or example of reasonable doubt) that the defense is going to put on, or will they rely on just saying the state didn't prove it and trying to poke holes in the evidence?"  
 
In that case, I think the best positive narrative the defense has is "Wallace or Ortiz flipped out, shot OL, and AH had no idea.  AH, justifiably scared, tried to make W/O disappear.  AH is not guilty because he didn't know what would happen, didn't participated, and only tried to protect himself afterward."  The W/O flip-out theory has taken a huge hit since the PCP theory has been shown as weak/highly speculative.  
 
I think the defense still makes it (why not?), but that they're also going to stick to the laundry list of problems with the evidence.  (Sometimes a weak/flailing defense can diminish the credibility of a better defense, but if they both equally suck. . .)  Well, they may be left with a sort of Chewbacca close - a smoke and mirrors close.  We'll see.  

 

[GeorgeCostanza]

 
However, your question may mean, "is there a positive narrative (or example of reasonable doubt) that the defense is going to put on, or will they rely on just saying the state didn't prove it and trying to poke holes in the evidence?"  
 

Yes, thank you. There's a reason I mainly work with 0s and 1s and not words

 

[Rovin Romine]

After lunch I find the bailiff to let him know what’s going on.  He tells the judge.  I get called up to the bench with both attorneys and they put on the noise cone of silence thing they have so no one can hear the conversation.  I give them the background, the judge asks me if it would influence my ability to assess the believability of testimony and I answer no.  She asks the attorneys if either has a problem leaving me on the jury.  Neither one does.  I’m flabbergasted. 

 
This reminds me of something I haven't thought of in awhile.  I was an observer/third brain on a case a few years back.  The defendant in the case had his mother testify.  Mom explained that the defendant had been beaten to an inch of his life (severe injuries) a few years ago, and his PTSD explained some of his otherwise odd reactions in the case.   
 
After this, one of the jurors sent a note to the judge.  Apparently when he was younger (running with a different crowd), he was one of the guys who had beaten the crap out of the defendant.  He didn't recognize him or the name until the mom started testifying about what happened.   

 

[Rovin Romine]

Yes, thank you. There's a reason I mainly work with 0s and 1s and not words

 
Hey, I'm using a lot of shortcuts with my terminology.  Plus there's some fungibility as to terms and concepts and classifications.  

 

[MentalDisabldLst]

 
This reminds me of something I haven't thought of in awhile.  I was an observer/third brain on a case a few years back.  The defendant in the case had his mother testify.  Mom explained that the defendant had been beaten to an inch of his life (severe injuries) a few years ago, and his PTSD explained some of his otherwise odd reactions in the case.   
 
After this, one of the jurors sent a note to the judge.  Apparently when he was younger (running with a different crowd), he was one of the guys who had beaten the crap out of the defendant.  He didn't recognize him or the name until the mom started testifying about what happened.   

 
How much time did that juror end up doing for assault?
 
(yeah yeah, statute of limitations...)

 

[Super Nomario]

 
In that case, I think the best positive narrative the defense has is "Wallace or Ortiz flipped out, shot OL, and AH had no idea.  AH, justifiably scared, tried to make W/O disappear.  AH is not guilty because he didn't know what would happen, didn't participated, and only tried to protect himself afterward."  The W/O flip-out theory has taken a huge hit since the PCP theory has been shown as weak/highly speculative.  

I know Hernandez has no obligation to take the stand and the jury isn't supposed to let the fact that he isn't influence their decision, but this defense seems like it would be much, much stronger if he did testify. Maybe there's some merit to this PCP theory; why not ask the guy who was there (since the defense seems to grant that AH was at the scene)? If the PCP flipout theory is the defense, then Hernandez can provide eyewitness testimony that could/would exonerate him. As a layman and from the outside looking in, it seems pretty damning that he's declining to do that.

 

[Rovin Romine]

State is beating up Carita a bit on the stand. Apparently he moonlighted while working for the state lab?  He's also not that great of an "expert" in terms of his qualifications.  He's more like a crime scene technician.  
 
The defense has to put him on so that their next witness (probably the DNA analyst) can testify as to the origin of the sample he tested.  So he's sort of a non-witness.  This is a lot of testimony for a tech who basically said he swabbed some gum.
 
His potential competence does not really "add" to the defense, but his incompetence may detract.
 
** 
 
So, my comments about what the defense ultimately might get out of this (above) should be deferred for the next witness, Jennifer Smith.  Let's see what happens. 

 

[Rovin Romine]

I know Hernandez has no obligation to take the stand and the jury isn't supposed to let the fact that he isn't influence their decision, but this defense seems like it would be much, much stronger if he did testify. Maybe there's some merit to this PCP theory; why not ask the guy who was there (since the defense seems to grant that AH was at the scene)? If the PCP flipout theory is the defense, then Hernandez can provide eyewitness testimony that could/would exonerate him. As a layman and from the outside looking in, it seems pretty damning that he's declining to do that.

There are pretty strong instructions about the defendant not testifying.  The defense should have made this a key piece of their voir dire, should they have forseen AH not testifying (and the state being able to put him on or near the scene).
 
Legally the jury should give AH's silence no weight.  As a practical matter, it's hard to say how well the defense has cemented that within this particular jury, since we didn't see the voir dire.  (One technique is to ask a juror what they would say if, during deliberation, another jury member brings up the defendant not testifying.  Then you get them to promise they'd stick by it.)
 
Regardless of how well that concept is embraced by the jury, there's a lot of truth to what you're saying.  I've seen this as a potential weakness/problem from early on.  The defense opening (roadmap for the jury) placed AH close in time and space to the killing, but promised all kinds of glaring problems (and a celebrity witch hunt, basically).   I don't think they delivered that.  They didn't float the W/O freak out theory from the beginning of the trial.  Jurors can (and will) ask why.   If the defense "switches horses" and pops out a novel theory which AH is the best witness to, the jury is going to have a huge temptation in terms of expecting AH to testify and/or asking why he didn't.   (FWIW, if the defense had said, early on, that something happened the state couldn't prove, and that AH didn't have to explain, they'd be on much better ground.  If they alluded to the W/O theory from the get go, they'd be on much much better ground.  If they had used witnesses (in cross) to talk about the reasons anyone in AH's situation could have reasons to help W/O post shooting (finances, contract loss, endorsement loss, fear of family target by crazy guys, etc.) it would be better still.  Jenkins and the cousin/aunt would have been the most obvious vehicles for that type of info.  The defense would have put their argument "out there" during the trial itself and won some credibility.   
 
I'm assuming the W/O theory is what the defense will lean on in close.   I could be 100% wrong about that though.  Or the defense could abandon it if they feel it's weak.  

 

[MuzzyField]

I severed on a jury hearing a criminal case in Jacksonville a few years ago.  The defendant was charged with felony assault with a deadly weapon. 
 
He threatened his "girlfriend" to the point she jumped out of a moving car at 20-25 mph.  He successfully sliced her with a knife as she left the vehicle.   There were pictures of the wounds but the weapon was never found.  Witnesses included the victim, a male passenger and a policeman driving by the intersection at the time she bailed.  The defendant didn't testify, but his sister or cousin did on his behalf.
 
It was clear the victim wasn't sliced with a finger nail... the male passenger provided the best testimony, saw the knife and observed the situation escalate to the point the victim bailed.   During deliberation we asked to hear a portion of his testimony reread to clarify the central points of his testimony and learned we had to listen to it all.  Thankfully, it was only 10-15 minutes.  The victim wasn't very sympathetic, she and the defendant were living together, but they avoided saying so,  shared a child (she had 3 more via other sperm donors) and were probably engaged in welfare/public assistance fraud.  However, she was attacked with a knife and was threatened enough to think jumping out of a moving car was the safest play.   The cop witnessed the woman jump out, hit the pavement and went to assist her, the police substation was a block away. 
 
Three jurors were given the golden ticket of departure after they were identified as the alternates.  Those that remained headed to the jury room to begin deliberation.  I was then elected foreman.  After discussion and consideration of the jury instructions, we tried to assemble the best truth puzzle we could.  Some jurors we quick to apply standards contrary to the instructions or try and answer questions we didn't need to worry about.  Having the instructions was helpful in keeping us from getting derailed by such distractions.  The jury instructions were great in limiting what we needed to consider and how we needed to consider it. 
 
We reheard the requested witness testimony.  When we returned to the room, I made sure we ordered and ate dinner.  I'm glad we did.  Combining the photo with the witness testimony (he saw the knife, saw it being used on the victim and watched the defendant toss it out of the window, though it was never recovered) with the jury instructions, it was pretty easy to arrive at a unanimous guilty verdict.  In spite of that, we did wonder who these people were and how they arrived in this court on this day. It wasn't part of our official verdict, but I think it's human nature for such things to be a part of the conversation. 
 
We returned to the court.  I stood up and affirmed the verdict while exchanging eye contact with the defendant.   At this point the judge didn't thank us for our service.  She introduced more charges for us to consider.  The defendant had priors and was on probation.  Committing a felony with a weapon was a violation that brought with it further potential punishment.  It's obvious why we were kept in the dark about this and with it approaching 8pm we were happy to have eaten.   We returned to the room for what amounted to a rubber stamp of an additional guilty verdict.  We had already answered the same questions for the prior charges. I'm guessing this extra charge was also the reason the case wasn't plead and went to trial.
 
I learned that having a public defender isn't the best option.  It's a system problem, not an indictment of the lawyers working at this essential task.  AH has no choice here, guilt or not, but to empty his accounts and his 'dream team' will eagerly assist in the process.
 
When I returned home the first thing I did was look the defendant up.  He had a lengthy record and probably shouldn't have been roaming the streets, but as jurors this wasn't our problem to solve. The victim, the sister/cousin and the witness also had priors, nothing like the defendant.  It amused me that each had been arrested for driving with an expired license. The sentencing phase was continued multiple times for almost a year.  
 
It was quite the learning experience and an essential civic responsibility that is often marginalized.  I now possess a venomous hate towards those who use weak excuses to bail out of serving.  I hope if they ever need a jury of their peers, it's a motley crew of incompetent dolts sitting in the box.        

 

[PaulinMyrBch]

 
 
I'm assuming the W/O theory is what the defense will lean on in close.   I could be 100% wrong about that though.  Or the defense could abandon it if they feel it's weak.  

 
That would seem to indicate they are going to concede he was there. The problem with that theory is you need some evidence W/O flipped at the scene of the crime. Obviously AH could provide that testimony and he's not taking the stand. Is there a shred of evidence absent the PCP usage that would support this theory? They have a very small window for an actual defense that has a theory to it. 
 
 I think they're going to just hammer every inconsistency, every non sequential piece of circumstantial evidence, every other theory the evidence might support and just hammer reasonable doubt in their close. I think they are going to play on the jury's thirst for wanting to know what happened at the scene and use the lack of any evidence in the final minute of OL's life as a huge unsolved puzzle. Try to make that lack of evidence larger than it is and try to say without info as to what happened, you can't convict. 
 
I can't imagine a theory that involves actual evidence to support it working at this stage. 

 

[Joshv02]

 
That would seem to indicate they are going to concede he was there. The problem with that theory is you need some evidence W/O flipped at the scene of the crime. Obviously AH could provide that testimony and he's not taking the stand. Is there a shred of evidence absent the PCP usage that would support this theory? They have a very small window for an actual defense that has a theory to it. 
 
 I think they're going to just hammer every inconsistency, every non sequential piece of circumstantial evidence, every other theory the evidence might support and just hammer reasonable doubt in their close. I think they are going to play on the jury's thirst for wanting to know what happened at the scene and use the lack of any evidence in the final minute of OL's life as a huge unsolved puzzle. Try to make that lack of evidence larger than it is and try to say without info as to what happened, you can't convict. 
 
I can't imagine a theory that involves actual evidence to support it working at this stage. 

Agreed that they will hammer everything, but they'll need some sort of story to demonstrate about how his car went to OL's house, then the industrial park/murder scene, then his house, then he walked through his front door on video.  (Then the same car had a consistent bullet casing with his DNA, and the gum that with his DNA).  Maybe it isn't the car... but its the car.  
 
Their affirmative case so far is pretty clearly: "Aaron may have been there, but the PCP freaks shot him, and the DNA on the casing was b/c Aaron likes to chew gum (and the DNA transferred from the gum to the casing), and the Commonwealth has no evidence of a plan b/w the three indicating a joint venture."

 

[theapportioner]

Their affirmative case so far is pretty clearly: "Aaron may have been there, but the PCP freaks shot him, and the DNA on the casing was b/c Aaron likes to chew gum (and the DNA transferred from the gum to the casing), and the Commonwealth has no evidence of a plan b/w the three indicating a joint venture."

 
I can plausibly see how the jury might conclude from that story that there is reasonable doubt, since presumably they don't know anything about what happened in South Boston or Florida. I haven't watched all the testimony but the motive part seems not very fleshed out by the prosecution (understandably as they were hamstrung by not being able to introduce the other evidence).

 

[Rovin Romine]

OK.  Lunch break.   Smith testified that the DNA on the gum was AH's.   Presumably she'll continue to testify that it could be transferred to the casing.   This all seems rather duplicative/pointless (unless they didn't get this stuff in cross, which I think they did.)
 
 

That would seem to indicate they are going to concede he was there. The problem with that theory is you need some evidence W/O flipped at the scene of the crime. Obviously AH could provide that testimony and he's not taking the stand. Is there a shred of evidence absent the PCP usage that would support this theory? They have a very small window for an actual defense that has a theory to it. 
 
 I think they're going to just hammer every inconsistency, every non sequential piece of circumstantial evidence, every other theory the evidence might support and just hammer reasonable doubt in their close. I think they are going to play on the jury's thirst for wanting to know what happened at the scene and use the lack of any evidence in the final minute of OL's life as a huge unsolved puzzle. Try to make that lack of evidence larger than it is and try to say without info as to what happened, you can't convict. 
 
I can't imagine a theory that involves actual evidence to support it working at this stage. 

 
Yeah.  I could see it going this way.  
 
The trouble is that if you can't hammer the evidence convincingly you start to wander into "vast conspiracy against the defendant" territory.  That doesn't work once you're over a certain threshold of witnesses.  A couple of cops or a department bungling/grasping, yeah, that's doable.  But there's too much independent physical evidence (primarily video) to really allow for conspiracy/incompetence/coverup, and I'm not sure that there are all that many inconsistencies.  
 
If they couple that with a "you'll never know what happened at the scene" defense, they're sort of in "neener-neener" territory - i.e., "The state can't explain away the problems with the timeline, traffic cameras, security footage, texts, AH picking up OL, SJ dumping the box, SJ paying off Wallace, etc. - AH was framed I tell you!  There are totally innocent explanations which you're not going to hear! Those housekeepers never liked him anyway!  Bradley has a record!  And, even if you think AH was there, it's likely W/O killed OL in a PCP freakout, but you'll never know.  Neener-neener!"
 
Granted it wouldn't be couched that way, but IMO you've got to give a jury something to hang their hat on.  If the defense can't articulate reasonable doubt, why would the jury?  (Given joint venture, I'm surprised they didn't try to pin it more overtly on a co-defendant.)  
 
They could try to couch it as a classic "possibilities" close.  I.e., it's possible this happened, it's possible that happened, ergo reasonable doubt.  
 
***
We're sort of getting to one of the points I raised earlier.  If a traditional close is likely to fail, do you do it as a CYA, or do you come up with a screwball theory/close and spring it on the prosecution (the Hail Mary)?  Most defense attorneys are taught that the laundry list is the way to go - and sometimes it's both a safe and a good choice.  Here, I don't know.  

 

[Rovin Romine]

Agreed that they will hammer everything, but they'll need some sort of story to demonstrate about how his car went to OL's house, then the industrial park/murder scene, then his house, then he walked through his front door on video.  (Then the same car had a consistent bullet casing with his DNA, and the gum that with his DNA).  Maybe it isn't the car... but its the car.  
 
Their affirmative case so far is pretty clearly: "Aaron may have been there, but the PCP freaks shot him, and the DNA on the casing was b/c Aaron likes to chew gum (and the DNA transferred from the gum to the casing), and the Commonwealth has no evidence of a plan b/w the three indicating a joint venture."

 
The bolded is where I suspect the jury is, in terms of processing the case.  
 
In a case like this, I believe there's sort of a natural tipping point to the accumulating evidence - and once beyond that the jury needs to be handed a clear argument as to why reasonable doubt really does exist.  
 
I mean, we've had to scramble to come up with a theory/example of reasonable doubt, and even so, that theory is directly controverted by other facts.  I'm not sure that theory/example has been made explicit to the jury through the trial testimony.  Will the jury work as hard as we have?  Have they really kept their minds suspended? (No.)  Is the jury pretty much convinced right now that AH/Wallace/Ortiz were thick as thieves?  This has gone on for months - will a juror change their mind at this point?  Will a good close sway that?  

 

[PaulinMyrBch]

 
 
***
We're sort of getting to one of the points I raised earlier.  If a traditional close is likely to fail, do you do it as a CYA, or do you come up with a screwball theory/close and spring it on the prosecution (the Hail Mary)?  Most defense attorneys are taught that the laundry list is the way to go - and sometimes it's both a safe and a good choice.  Here, I don't know.  

I honestly don't know either. I'm going to be watching the close.
 
It's hard to say what I would do at this point, since I wasn't the one making the decisions about how to try the case and I didn't set it up with my opening statement. This may have been a good case to reserve the defense opening statement until the state has rested (unsure if MA procedure allows that option). Although that comes with other disadvantages as well. But reserving opening would have allowed a later decision on the defense theory and it seems they don't have a clear path at this point. Not that they should with this evidence, but the fact that we can't figure out what they may do is a clear sign that it isn't obvious.

 

[Rovin Romine]

I honestly don't know either. I'm going to be watching the close.
 
It's hard to say what I would do at this point, since I wasn't the one making the decisions about how to try the case and I didn't set it up with my opening statement. This may have been a good case to reserve the defense opening statement until the state has rested (unsure if MA procedure allows that option). Although that comes with other disadvantages as well. But reserving opening would have allowed a later decision on the defense theory and it seems they don't have a clear path at this point. Not that they should with this evidence, but the fact that we can't figure out what they may do is a clear sign that it isn't obvious.

 
I don't know if MA allows this.  They could have done what I think of as "non-opening opening" - basically you repeat the voir dire points you want, list things for the jury to look for, and promise you'll explain it all in closing (but that you're not going to tip your hand to the state now, for reasons that will become clear in the close).   Not sure that would have been wise here.   But I'm pretty sure that if the defense could redo their opening statement they would.  
 
I suspect the defense was blindsided on two key issues: a) they didn't know the photos of the gun in AH's hand would be that clear, b) they didn't know SJ would testify to paying off Wallace/Ortiz.  (Maybe c) - they didn't know SJ would testify at all?)  Had those been up front, I suspect they'd have gone for a more angular/aggressive defense.  

 

[uncannymanny]

When are the closes scheduled?

(and TY to everyone who has provided invaluable info in this thread)

 

[Joshv02]

When are the closes scheduled?

(and TY to everyone who has provided invaluable info in this thread)

Probably tomorrow, not sure when exactly though.  They'll confirm after the DNA expert testifies, I assume.

 

[gtmtnbiker]

Doesn't the defense get access to all of the evidence before the trial starts?  Wouldn't they have seen that the gun image was pretty clear?
 

 
I suspect the defense was blindsided on two key issues: a) they didn't know the photos of the gun in AH's hand would be that clear, 

 

[Shelterdog]

Doesn't the defense get access to all of the evidence before the trial starts?  Wouldn't they have seen that the gun image was pretty clear?
 

 
The other strange thing about the guns is that the Glock expert apparently saw enhanced versions of the picture but the jury never did and they didn't come into evidence.  Not sure what the defense can do with that

 

[Joshv02]

 
The other strange thing about the guns is that the Glock expert apparently saw enhanced versions of the picture but the jury never did and they didn't come into evidence.  Not sure what the defense can do with that

They used that to limit the Glock expert's ability to offer an opinion - the stuff that was based on the enhanced pictures is out.

 

[Rovin Romine]

Doesn't the defense get access to all of the evidence before the trial starts?  Wouldn't they have seen that the gun image was pretty clear?

 
Usually yes.  As Shelter says, there seems to have been two sets of pics, but the defense may have had access to the same raw video data?   Don't know, but I'm sure they'll bring it up on appeal (if needed).  
 
Also, the testimony of witnesses can change from the opening to the actual calling of the witness.  I don't know if SJ's testimony changed or not. 

 

[Shelterdog]

They used that to limit the Glock expert's ability to offer an opinion - the stuff that was based on the enhanced pictures is out.

 
It's still a mess though--it's not like Glockman was able to unsee the enhanced pictures and they permitted him to confirm his opinion about the gun so you're effectively backdooring this apparently inadmissible enhanced picture) into the testimony

 

[Rovin Romine]

 
It's still a mess though--it's not like Glockman was able to unsee the enhanced pictures and they permitted him to confirm his opinion about the gun so you're effectively backdooring this apparently inadmissible enhanced picture) into the testimony

 
The basis for an expert's opinion does not have to be admissible to the jury - they can form an opinion based in part on hearsay, for example.  

 

[Rovin Romine]

THE DEFENSE RESTS
 
THE STATE FINISHES REBUTTAL AND RESTS
 
That's it kids.  We've got closing and instructions tomorrow, plus, no doubt, legal wrangling.  

 

[Kull]

THE DEFENSE RESTS
 
THE STATE FINISHES REBUTTAL AND RESTS
 
That's it kids.  We've got closing and instructions tomorrow, plus, no doubt, legal wrangling.  

 
It's you giving the close tomorrow (for either side). By now you surely have your close prepared (A memorized document? A bulleted list and trust to your ability to string it together coherently? Something else?) And how well do you sleep?

 

[Rovin Romine]

 
It's you giving the close tomorrow (for either side). By now you surely have your close prepared (A memorized document? A bulleted list and trust to your ability to string it together coherently? Something else?) And how well do you sleep?

 
 
If we're past a certain level of complexity (like here) I use a bulleted list when I get to the nitty gritty of who said what and when.  Just using the list can be made into a prop/point (record accuracy/memory/getting it right instead of winging it like Detective Sloppy) if needed.  
 
The major pieces of the close I pretty much do out of memory - client, big picture view/theory, burden, reasonable doubt, defendant not testifying, jury instructions, etc.   Those change over time and with the particular cases.  Additionally, I'll have practiced most of the "big" case-specific pieces.  So, for example, whatever the S.Jenkins argument would be, I'd have the "bullet points" pretty much memorized.  I'd probably still use the sheet for specific times of things.  
 
In multi-day trials, (most are at least 2 days) the night before (whether or not testimony is concluded), I'll usually spend a couple of hours giving the close to my cat.  I do it orally, without any notes.  My cat is very patient.  It lets me find the strong points and start to weave them into a theme.  Then I sit down and draw up the bullet point list based on my trial notes.  Then I usually telephone my trial partner to hear one oral version of the close.   I do it again (broad brush strokes if needed) in the shower and driving in the next morning.
 
I usually sleep pretty well.  By closing all I've done is focus on the trial for whatever it's duration is.  So it's "there," in my mind.  I don't find closing to be particularly stressful - by that time what's done is done.  (Getting the most out of a cross is what gives me the adrenaline.)  
 
I believe you have to be flexible and read the jury when you close.  You shouldn't press too much, you should loop, develop your theme, etc.  A rote approach can fail.  Also, you need to contrast your theme/case/style with the prosecution, if you can - take advantage of their phrasing, slips, mis-focus on tangental issues, etc.  (If possible you have to sucker them into a pointless rebuttal on something they can't win.)  
 
Sometimes I sit down at the end of closing and have little or no idea of what I've said in a verbatim sense.  (I don't have a second to second memory of what I've said and done in the close.)  I always check with my trial partner before resting though - I'll go back up and freely confess I've forgotten something or that my partner saw something I missed (another teaching point, if appropriate.)

 

[MentalDisabldLst]

MuzzyField - your jury story is the best of a pretty good lot here.  Thanks for sharing.
 

Regardless of how well that concept is embraced by the jury, there's a lot of truth to what you're saying.  I've seen this as a potential weakness/problem from early on.  The defense opening (roadmap for the jury) placed AH close in time and space to the killing, but promised all kinds of glaring problems (and a celebrity witch hunt, basically).   I don't think they delivered that.  They didn't float the W/O freak out theory from the beginning of the trial.  Jurors can (and will) ask why.   If the defense "switches horses" and pops out a novel theory which AH is the best witness to, the jury is going to have a huge temptation in terms of expecting AH to testify and/or asking why he didn't.   (FWIW, if the defense had said, early on, that something happened the state couldn't prove, and that AH didn't have to explain, they'd be on much better ground.  If they alluded to the W/O theory from the get go, they'd be on much much better ground.  If they had used witnesses (in cross) to talk about the reasons anyone in AH's situation could have reasons to help W/O post shooting (finances, contract loss, endorsement loss, fear of family target by crazy guys, etc.) it would be better still.  Jenkins and the cousin/aunt would have been the most obvious vehicles for that type of info.  The defense would have put their argument "out there" during the trial itself and won some credibility.   
 
I'm assuming the W/O theory is what the defense will lean on in close.   I could be 100% wrong about that though.  Or the defense could abandon it if they feel it's weak.  

 
RR, I have to say that what I'm completely befuddled by here is the defense's strategy.  On the one hand is what seems to be to be a solid circumstantial case, where only a plausible alternative theory might create reasonable doubt.  From your (and others') recaps, I have heard of no alternate theory their questions have been tailored to support.  They're not putting AH on the stand, despite the fact that, as you say, he'd probably need to get up and testify to the alternate theory for it to stand a chance of being believable by the jury.
 
In other words, by advancing no alternate theory and not putting AH on the stand, they're pretty much leaving things in limbo.  Do they think the state hasn't come close to meeting its burden?
 
What on earth could be going on here?  Are we watching defense-counsel malpractice?  What odds are you assigning to "surprise in closings" vs "betting on a scatter-shot approach to instilling doubt" vs "defense counsel's hands were tied by AH" vs other explanations?  Help me make sense of this.

 

[crystalline]

 
What on earth could be going on here?  Are we watching defense-counsel malpractice?  What odds are you assigning to "surprise in closings" vs "betting on a scatter-shot approach to instilling doubt" vs "defense counsel's hands were tied by AH" vs other explanations?  Help me make sense of this.

Me too. Why didn't they find an expert who could at least hint O/W were high on PCP, and describe how crazy PCP users can be? Why would they possibly call someone who as you say left them worse off than if he had not testified? Can't they prepare with him to see what he would answer when asked if he had testified before?

I can understand the defense may have been blindsided by certain evidence and had to change their story after the opening. But they knew months ago about their own experts, and they can't get that right?

 

[mauf]

The defense expert who talked about possible PCP use by Wallace and Ortiz ensures that possibility will be discussed in the jury room. That alone probably justifies calling him, even if he wasn't terribly effective on the stand.
 
I think RR nails it -- the defense figured SJ wouldn't testify in a way that helped the prosecution, and now that she has basically removed all doubt that AH participated in a cover-up, they're scrambling. As I said upthread, perhaps the defense should have conceded at the outset that AH was an accessory after the fact.

 

[OCST]

I can understand the defense may have been blindsided by certain evidence and had to change their story after the opening. But they knew months ago about their own experts, and they can't get that right?

 
With AH's $, they should have been able to find more expert-y experts, and not this bunch of clowns.

 

[Norm loves Vera]

I missed part of the DNA expert testimony, but it seemed like she just stated the DNA on the gum was AH.. was it because there was a few outlier markers or whatever like maybe the evidence was tainted or manipulated before testing?

 

[Shelterdog]

MuzzyField - your jury story is the best of a pretty good lot here.  Thanks for sharing.
 
 
RR, I have to say that what I'm completely befuddled by here is the defense's strategy.  On the one hand is what seems to be to be a solid circumstantial case, where only a plausible alternative theory might create reasonable doubt.  From your (and others') recaps, I have heard of no alternate theory their questions have been tailored to support.  They're not putting AH on the stand, despite the fact that, as you say, he'd probably need to get up and testify to the alternate theory for it to stand a chance of being believable by the jury.
 
In other words, by advancing no alternate theory and not putting AH on the stand, they're pretty much leaving things in limbo.  Do they think the state hasn't come close to meeting its burden?
 
What on earth could be going on here?  Are we watching defense-counsel malpractice?  What odds are you assigning to "surprise in closings" vs "betting on a scatter-shot approach to instilling doubt" vs "defense counsel's hands were tied by AH" vs other explanations?  Help me make sense of this.

 
Unless something shocking comes out it's not close to malpractice and the state has produced enough evidence to easily meet its burden (not that they'll win but juries routinely convict on far less).  The big problem for the defense is that Hernandez TOTALLY FUCKING KILLED THAT DUDE EXECUTION STYLE and he left an enormous quantity of video, cellphone records, footprints, tire tracks, DNA, fingerprints, shell casings and candy in his wake.  
 
There's only so much lipstick you can put on this pig.

 

[Joshv02]

Right. Defending guilty people is hard and failing you get them off is not mal practice

 

[MentalDisabldLst]

Not that it's actual malpractice - I was just suggesting that, to my untrained eye, it looks like advancing the "Wallace/Ortiz went nuts!" theory would be the better defense choice.

 

[crystalline]

 
With AH's $, they should have been able to find more expert-y experts, and not this bunch of clowns.

Seriously. There is a poster here on SOSH (I forget who exactly) who did a residency in emergency medicine in Hartford or similar and was telling stories about crazy crazy patients on PCP. It would literally have been better to call that SOSH poster to testify about his/her personal experience with PCP craziness, than to call this expert. The expert is some researcher who doesn't even research PCP and has never even written a paper on PCP, NEVER MIND that he has never has actually treated a patient on PCP (and if he did it would have been the last time the guy actually saw any patient, which was during his residency in the 70s).

Edit: Sultan could have gone to an ER and waved $10 around and found a better expert.

Also I am not a lawyer so what the heck do I know. Given the part of the testimony I saw, this would be my reaction if I were a juror, though.

 

[Rovin Romine]

 
Unless something shocking comes out it's not close to malpractice and the state has produced enough evidence to easily meet its burden (not that they'll win but juries routinely convict on far less).  The big problem for the defense is that Hernandez TOTALLY FUCKING KILLED THAT DUDE EXECUTION STYLE and he left an enormous quantity of video, cellphone records, footprints, tire tracks, DNA, fingerprints, shell casings and candy in his wake.  
 
There's only so much lipstick you can put on this pig.

 
Ting.  
 
I'm a little surprised the defense made some of the choices it did, but it's not near malpractice.  If they were blindsided (or hoped that all the texts would be excluded, etc.) their decisions make more sense to me.  However, like getting good experts, many of these things should have been clarified before trial began.  Then again, these guys may be "Believers of the Church of the Closing Argument."  Who knows?
 
I'm still a bit perplexed by the PCP expert.  They had to have been able to get someone who could talk about the metallic scent of burning PCP, the fact that it stays in your system for X number of hours/days, the manifestations of PCP psychosis, etc.  There's a whole separate body of strategy that involves hiring and deposing expert witnesses, which is perhaps not entirely germane here.  Still, I'd have hired someone midtrial if necessary.  
 
I'm also left wondering if PCP use couldn't be tied to AH somehow?  I thought there was a linkup when there was testimony about it making you paranoid.  (Testimony about AH being paranoid had been excluded.)   This will be interesting to watch in close.  The state will have to be careful not to mistry the case, but on rebuttal they could argue (carefully) that the defense random killing theory because of PCP could apply to AH.  Something like, "The defense says you need motive (the jury instructions don't), and *they're* the ones propounding a motiveless killing.  They say it was done by a blunt smoking gun toting thug.  We agree.  Who was driving the car?  Who had a gun?  Who likes to smoke blunts with his thug buddies from Bristol?  Who called the shots - both figuratively, and sadly, literally?"

 

[smastroyin]

Is there really any basis for PCP rage though?  The killing seems methodical and not the result of people flipping out and seeing things.  I know there is a paranoia aspect as well.  Point being that an actual expert would probably defray even the jury's opinion of PCP.  I think we all tend to end up with the mythical vision of a person having hugely boosted adrenaline strength, etc. but I don't think that's the actual case.  So maybe the difficulty was in finding an "expert" that would actually corroborate the affirmative defense theory.
 
 I'm not sure I quite understand it as an affirmative defense, either.  Because AH is still complicit in going to pick him up, etc.  I mean I guess that's a way of saying "OK AH may be guilty of x,y, and z, but he wasn't guilty of Murder 1"?  But, to have that all make sense, why the rental car, why the pickup in Boston and drive to Attleboro, blah blah.  If it was to scare him now you've also provided motive (i.e. what are you trying to scare him out of?) so you can't do that.  Like RR says, creating affirmative defense is impossible without holes or bringing in other facts that also support the prosecution's case.  PCP makes you paranoid?  Guess that would make AH paranoid, etc.  The only thing they really have to go by is the hope that the prosecution can't prove everything they need for murder 1.  

 

[Kull]

I wonder if Hernandez refused to let his lawyers incriminate his buddies directly? Not once has the defense come right out and tried to pin this on either of the other two, but instead have danced all around the subject. It will be interesting to see if the Defense Close tries to paint a picture of that option or instead uses a scattershot approach intended to raise enough doubts to hold a conviction at bay. Either Hernandez feels it's necessary to keep his friends from going state's witness at the next trial (double murder), or it's some sort of "gangster ethics". Either way, it removes the only realistic alternate explanation in this case.