Oh Garsh! The Garsh Dilemma in the Hernandez Case.

Whistlers-Mother-by-the-Sea--95715I don’t expect much to change listening to the testimony of Aaron Hernandez’s lawyered- up, attractive, girlfriend Shayanna Jenkins later today. Judge Garsh who is sitting on the trial and also sitting on the prosecutor also will probably hear nothing new from her. Watching her testify on Friday she had the most amazing relationship with Hernandez. They rarely spoke to each other more than one sentence at a time.

Shayanna testified Friday how she went to the “junk drawer” where she keeps all the nick knacks and “what have yous.” We all have them. They are places where we put the small things we gather up during our lives that we don’t have another place to put them in.  She opened the draw and saw a black firearm shaped like an “L”. She was shown a .45  caliber pistol by the prosecutor and said the color and shape was the same as that she saw in the junk drawer but she was not sure it was the same size. She said it had a handle and the other part which she didn’t know what it was called.

This is important to the prosecutor’s case because Odin Llyod who Hernandez is alleged to have murdered was killed with .45 caliber slugs and no .45 caliber pistol has been found tying him into the crime.

Shayanna said she was a little upset at seeing this. She went to confront Hernandez about it. She said nothing. She only shrugged. They never talked about it again.

You know the big issue is who murdered Llyod. There is sufficient circumstantial evidence for the jury to easily conclude Llyod was with three men, Hernandez, Bo (Ernest Walker) and Carlos Ortiz about a mile from Hernandez’s home at the time he was murdered. There is no evidence to show who fired the .45 caliber rounds that took his life nor does there seem to be any evidence that would satisfy the requirement for a joint enterprise, that is where the act of one of the men is attributed to the others because they agreed beforehand that would be the case.

Most of Shayanna’s testimony has been about talking on the phone but we don’t know what was said or driving the car up and down Route 95. We’re at the point where she is about to learn why Hernandez is involved with the police, that is, she’s about to tell us when she heard Llyod was dead and what she did after she heard it. One thing she is expected to say is she asked Hernandez if he killed Llyod and he said no.

We will not hear, I assume, anything more than that, for instance, she won’t be asked: “when you heard Llyod had been murdered and he was with your boyfriend Hernandez and when he said he didn’t kill him did you ask him what had happened?” Then, when she says no, “you weren’t interested in finding out why Llyod who you said was a friend and who was the boyfriend of your sister was murdered?”  

There is a rule that when a witness acts like Shayanna where she is obviously not remembering things and providing nonsensical answers as to the extent of her conversations with Hernandez she can be declared a hostile witness. Then the person questioning her can ask her leading questions like I set out. I can’t figure out why this isn’t happening. The prosecutor is quite skillful. I can only assume he asked the judge to declare her a hostile witness and the judge refused. That in part is why I suggest she is sitting on him.

The only bit of evidence Shayanna gave the prosecutors that may have advanced their case is her testimony about her cooking breakfast for Hernadez, Bo and Carlos within a few hours of the murder and their hanging around the pool together the rest of the morning after one of them murdered Llyod. The prosecutor can use that to show that to suggest the jury can infer the men were acting pursuant to an agreement and that they were participating in a joint enterprise.

This then comes down to the judge. Will she accept that as sufficient proof of the joint enterprise. If she does, then the prosecutor will be able to get the case to the jury. If she doesn’t, then she might direct a verdict of not guilty for if there is no joint enterprise the law requires her to do so.

Her dilemma is that she has kept evidence that incriminate Hernandez in the murder such as the texts he sent to his sister out of evidence. Having done that, she is in a position where her excluding inculpatory evidence has weakened the prosecutors case to such an extent he may not have reached the legal threshold to have the jury decide the case.

Remember I have not seen much of the case and even if I had I’m quite fallible in making predictions about case outcomes. Having lost sure bets and won long shots in the cases I have tried in my career I can tell you much of what a jury will do is difficult to figure out. My best estimate after watching Shayanna testify is that if the case goes to the jury Hernandez will be convicted. I don’t think any juror is so stupid as to not know Shayanna knows a lot more than her acting school performance is showing. I don’t even think there will be a mistrial with one or two holdouts because of that.

The only question now is whether Judge Garsh will take it away from the jury.

2 thoughts on “Oh Garsh! The Garsh Dilemma in the Hernandez Case.

  1. The girlfriend and the maid see the black gun in the house. There are videos both before and after the killing with AH holding the black gun. Testimony that it appears to be a 45. Lloyd is killed with a 45. AH’s dna is on a 45 shell casing found in the car AH was driving. It is a reasonable inference that the black gun owned by AH is the murder weapon. He either shot Lloyd or gave the gun to another to shoot him. AH’s dna is found on a joint along with Lloyd’s dna at the murder site. After the killing the video in the basement is disabled and the gun removed from the house. Jenkins gives 500 dollars each to the compatriots. All that is evidence of an on going scheme to hide the crime. Powerful evidence of consciousness of guilt. The murder scene is a half mile from AH’s house. The three return in the same car they left to the house 10 minutes after the shooting. The case has to go to the jury. A hung jury would not benefit AH. A guilty verdict is almost certain. A Superior Court judge after hearing defense counsel claim it was a weak case said that it was a circumstantial case but a very, very strong one. What other conclusion could any sane person make?

    1. NC:

      If it goes to the jury he’ll be hooked. You make good points from which you can infer either Hernandez murdered him or was involved in a joint enterprise. A few caveats: no one has said AH is holding a gun – it’s a blurry object that looks like a gun – his DNA on a casin found in the car links him to a .45 bullet but not the gun. Really no tie in to the .45 used in murder. Lots of consciousness of guilt evidence like you mentioned that might be enough to get over the bar. Question is does it go to jury.

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