Aaron Hernandez

How the Aaron Hernandez Judge’s controversial ruling may have sealed his fate but supported an appeal

gun-smallWednesday morning Judge Susan E. Garsh, the jurist presiding over the high profile murder trial of former NFL star Aaron Hernandez, made an astonishing evidentiary ruling that may have sealed Hernandez’ fate.

The former New England Patriot is charged with first degree murder in the shooting death of Odin Lloyd, a semi-professional football player dating the sister of Hernandez’ fiancée. It is a case built around a mountain of circumstantial evidence but without a clear motive, eyewitness testimony, or a murder weapon. Video from Hernandez’ home surveillance system shows him holding a black object resembling a gun in the hours leading up to the murder and then back at his house shortly after prosecutors say Lloyd was shot and killed. The footage is very grainy and distant but it appears to be a gun of some kind. We heard ballistics testimony previously in trial that a Glock 21 firearm was used to kill Lloyd but the actual murder weapon has never been found.

On this day, Prosecutors were able to place the murder weapon – or an identical gun – in Hernandez’ hands shortly before and after Prosecutors say Lloyd was shot and killed.

Kyle Aspinwall, a former New Hampshire police chief who now works for Glock, testified this morning as a “lay witness” as opposed to an “expert witness”. This is an import ant distinction I will get into in a minute. He was called to the stand to show jurors what a Glock firearm looked like so that they could compare it to various still photos and video from Hernandez’ home surveillance system that show him carrying the black object. Prosecutors have alleged this is the murder weapon, while defense attorneys have said it could be a TV remote or other electronic device. It appears clearly to be a gun of some kind.

As Aspinwall testified, prosecutor Patrick Bomberg played clips from the home surveillance system and asked the firearms manufacturer employee to identify the black object Hernandez was holding in various areas of the house. Judge Garsh overruled a vigorous objection from Hernandez’ defense attorneys arguing this was impermissible opinion testimony from a non-expert. That it when the hammer came down:

“In my opinion, the firearm shown in the video stills is a Glock pistol,” Aspinwall said. The witness said his opinion was based on various characteristics of the weapon, including the curvature of back strap, the magazine well and triggers guard.

This was the most damning period of testimony in the trial so far. Aspinwall’s testimony paired with the surveillance videos, artfully presented by the way, place an identical firearm as the murder weapon in Hernandez’ hands shortly before he left with two associates around 12:45am on June 17, 2013, to pick up Lloyd, and then shortly after 3:40am when the three men returned to Hernandez’ North Attleboro residence. Lloyd sent his last text message at 3:23 a.m., and two witnesses have testified they heard loud bangs around that time.

Here is the problem, why was Aspinwall allowed to positively identify the weapon as a black Glock semi-automatic pistol? We are talking about affirmatively telling jurors that a black L-shaped item in Hernandez’ hands, on a grainy surveillance photo, is in fact this exact same type of gun used to shoot and kill the victim. While many people will agree that the item in Hernandez’ hands is a gun, and very likely not a TV remote, allowing a lay witness to positively identify the manufacturer of the firearm seems incomprehensible.

There is a very important legal distinction between a lay witness and an expert witness. In general, lay witnesses are able to testify about their personal observations or “facts”, but are very limited in the opinion testimony they are able to provide. Expert witnesses on the other hand are asked to come in and give their opinion based upon their training, experience, and facts presented to them.

The Massachusetts Guide to Evidence, Section 701, which is taken nearly verbatim from the Federal Rules of Evidence, Section 701, provides the following exceptions for when a lay witness is able to provide opinion testimony:

    “If the witness is not testifying as an expert, the witness’s testimony in the form of opinions or inferences is limited to those opinions or inferences which are (a) rationally based on the perception of the witness; (b) helpful to a clear understanding of the witness’s testimony or the determination of a fact in issue; and (c) not based on scientific, technical, or other specialized knowledge within the scope of Section 702.

These types of scenarios often arise in the context of opinions based on witness observations such as how fast a car was going, the age of an individual, or the passage of time1. Here is an example from the 1875 case cited by Hernandez’ defense attorneys today: “At the trial of an indictment for murder, a witness who, soon after the homicide, had taken a pair of shoes from the defendant’s house, one of which, as the government contended, fitted a track supposed to have been made by the murderer, was permitted to testify that the shoes appeared as if they had recently been washed.” Commonwealth vs. William E. Sturvant, 117 Mass. 122 (1875). Again, these are everyday opinions based on a witness’s observations. An expert opinion, on the other hand, is reserved for non-everyday experiences.

“While an expert opinion is admissible only where it will help jurors interpret evidence that lies outside of common experience, a lay opinion is admissible only where it lies within the realm of common experience.” Commonwealth v. Canty, 466 Mass. 535, 541–542, 998 N.E.2d 322, 328–330 (2013) (quotation omitted).

I don’t imagine for many people it is “common experience” to be able to affirmatively identify a black object resembling a gun in a grainy photo as a specific make and model of firearm. Otherwise, why would they need a Glock employee to do it? This is exactly what expert witnesses are for, to help jurors interpret evidence outside of the common experience.

While Aspinwall might very well be qualified to discuss Glock firearms, after all he works for Glock and is a former Chief of Police in Mount Vernon, New Hampshire, that doesn’t make him an “expert witness” in the legal sense. A special hearing, often called a “Daubert-Lanigan” hearing2, must be held to determine the relevant expertise and reliability of the expert. That did not happen here. Aspinwall was able to give his opinion as a lay witness, and very damning opinion at that, that Hernandez was holding a black polymer semi-automatic Glock 21 pistol.

A Massachusetts attorney told me after court that this decision was similar to asking a Chiquita banana salesman to look at a grainy distant photo of a banana (without the label of course!) and say “Ya, that’s definitely a Chiquita banana.”

To be fair, this trial has been extremely complex from the outset. Both Hernandez and the Commonwealth are being represented by some of the finest lawyers in Massachusetts and neither side has given an inch. The one constant has been Judge Garsh. She has been a stalwart in the courtroom and presided over the trial with a strong yet calm demeanor throughout the huge volume of evidentiary hearings, foundation requests, refusals to stipulate, and every other kind of objections possible. Her decisions have always been accompanied by lengthy oral dissertations with well-reasoned thoughtful analysis and legal support.

Maybe the most telling part of Wednesday’s decision was that she skipped her usual lengthy legal analysis. She gave a few brief statements referring to the witness’s “experience and training” before allowing him to tell jurors Hernandez is not only a gun, he is carrying THE EXACT GUN you’re looking for.

“[Aspinwall] testified as an expert,” a prosecutor we contacted told us. “It sounds identical to expert testimony and should have been treated as such. This man was a former cop and works for Glock, why wouldn’t qualify as an expert? Sounds like the defense has a decent argument on appeal.”

We asked veteran Criminal Defense attorney Robert Sheahen, who has been practicing for over 35 years, who told us “This ruling is outrageous, it is patently absurd. This decision undermines the entire premise of ‘expert testimony.’”

Of course, whether or not Judge Garsh was correct to allow the testimony, it is too late now. The jurors have already heard the testimony, so the cat is out of the bag. But don’t think Hernandez’ defense attorneys haven’t put big red “APPEAL” stamp on today’s decision.

1 See Commonwealth v. Tracy, 349 Mass. 87, 95–96, 207 N.E.2d 16, 20–21 (1965)

2 Based on the U.S. Supreme Court case determining the standard for admitting expert testimony in federal courts. Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993).

Source: RYAN KERNS, Wild About Trial

Copyright 2015 Wild About Trial. All rights reserved. This material may not be published, broadcast, rewritten, or redistributed.

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PB says:

When the defense shows their expert to say, “it could be blah, blah, blah…” I would assume the prosecution will call experts in rebuttal, and it may even be the same “lay” witness, and other Glock and photo experts. It would really send this evidence home to a jury. Great article! Thanks.

PatiolaBoston says:

Ryan – I agree the substitute gun is a little questionable but of course he’s an expert. Former Chief of Police in NH and now works for Glock? What more would you want from an expert? He does the title better than many of cases I’ve followed here with so called “experts”. And Motive? You still don’t get the motive Ryan? It’s pretty darn clear to me but heck I’m not on the jury! The motive was as he admitted to his fiancé S day or two before he admitted he ran his mouth off to Odin, gave him TMI. Too much about the 2012 double murder, I don’t know but the pieces of this puzzle are falling in nicely for the Prosecution. He made him dead because he spilled his fat stupid mouth and Ernie & Carlo were probably next! They’re safer in jail now to be trgied separately! Who pulled the trigger? No one cares, they are equally the shooter.
Thanks Ryan!

Pat (WinK)

Lee Thomas says:

Did the defense cross exam this witness? If so what does the record reflect? Thanks. Wild About Trial does a fantastic service to lay bare the facts of justice.

Lee Thomas says:

Nice article. What was the cross examination details?


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