Attempt to link Hernandez's sneakers to crime scene is key to Day 29 of trial

Do footwear impressions found near the body of Odin Lloyd establish that Aaron Hernandez was at the crime scene, or do those impressions reflect inconclusive markings, untrained evaluation or even biased analysis?

Do footwear impressions found near the body of Odin Lloyd establish that Aaron Hernandez was at the crime scene, or do those impressions reflect inconclusive markings, untrained evaluation or even biased analysis? Jurors on Wednesday, the 29th day of the trial, heard hours of testimony from Massachusetts State Police lieutenant Stephen Bennett about footwear impressions. Bennett is a crime scene supervisor for the state’s crime services lab unit. He has played a key role in the investigation of Lloyd’s death and subsequent prosecution of Hernandez. Most significantly, Bennett testified that one set of footprints found at the crime scene matched a pair of size 13 Nike Air Jordan Retro 11 sneakers—the very type of sneakers allegedly worn by Hernandez the night of Lloyd’s murder. But jurors also heard Hernandez attorney James Sultan aggressively challenge Bennett on his credentials and analytic methods. By the time the trial adjourned for the day, jurors may have felt genuine uncertainty about what to believe.

TRIAL COVERAGE: Opening statements | Day 26 | Day 27 | Day 28

Bennett attempts to link Hernandez’s sneakers to the crime scene

Bennett’s lengthy testimony included a description of how law enforcement collected evidence at the Lloyd crime scene and the important role rain played in that collection. After Lloyd’s body was found on June 17, 2013, law enforcement became aware of substantial rain in the forecast. Police officers then used tarps and other measures to preserve the evidence from contamination. Bennett acknowledged, however, that weather prompted accelerated steps for evidence retrieval. “There are certain situations where you would need to collect [evidence] quicker than normal,” Bennett explained. “Prints can be impacted or destroyed by rain or water.” Throughout the trial, Hernandez’s attorneys have portrayed the crime scene as chaotic and unreliable. Bennett’s testimony, in contrast, indicated the scene presented unique but manageable challenges and that law enforcement tried to meet those challenges.

Aaron Hernandez portrayed as angry with Odin Lloyd on Day 28 of trial

Bennett also described how law enforcement found footwear impressions in two basic locations at the crime scene. One location was a sandy silt gravel area not far from Lloyd’s body and the other was near tire tracks. Bennett added extensive details about these footwear impressions, most of which were left by eyewitnesses who clearly had nothing to do with Lloyd’s murder. Those eyewitnesses included the footwear impressions of jogger Matthew Kent, who found Lloyd’s body. Most other footwear impressions were associated with various first-responders. While hearing details about each footwear impression made for monotonous and protracted testimony, those details are essential to the case brought by Bristol County (Mass.) prosecutors against Hernandez. Unless every footwear impression found at the crime scene has been adequately explained, Hernandez’s attorneys can warn jurors of mysterious, unaccounted footwear impressions that possibly relate to the crime.

The most explosive portion of Bennett’s testimony occurred when he identified consistency in the pattern, design, size and manufacturer apparent in one important footwear impression. This impression, according to Bennett, matched a size 13 pair of Nike Air Jordan Retro 11 sneakers. Hernandez has been linked to wearing that exact type of sneaker right around the time Lloyd was murdered. Prosecutors have introduced various forms of evidence, including video and photographs as well as Tuesday’s testimony of Nike consultant Herbert Hedges, to assert that linkage. The actual Air Jordans worn by Hernandez, however, have reportedly not been found. Along those lines, Bennett acknowledged that “it’s an advantage to find the [actual] shoes” that left footwear impressions. With Hernandez, however, prosecutors are limited to evidence of Hernandez wearing the same type of shoe.

Cross-examination of Bennett raises questions about his credentials and methods

Sultan’s cross-examination of Bennett on Wednesday was, in a word, unrelenting. While Sultan’s cross-examination of Bennett will likely continue on Thursday, Sultan exhibited four main types of attack on Wednesday.

First, Sultan consistently reminded jurors that Bennett is not “independent.” Bennett works for the same employer as the prosecutors and cops who want Hernandez convicted: the Commonwealth of Massachusetts. Bennett has also met regularly with these prosecutors and cops. “You’ve met dozens of times with law enforcement prosecutors, haven’t you,” Sultan rhetorically asked Bennett, who nonetheless insisted, “I do not consider myself part of the prosecution team.” Despite not considering himself on the same “team” as prosecutors, Bennett admitted to Sultan that he had “heard some stuff” about the case in the course of conversations with prosecutors and investigators. Sultan also let jurors know that Bennett was promoted during the course of his work on the Hernandez case from sergeant to lieutenant, thus hinting—albeit without any actual evidence—that Bennett has been rewarded for implicating Hernandez.

After leading Bennett to acknowledge his work on the Hernandez case has been conducted in conjunction with prosecutors, Sultan pivoted to the interrelated topic of independence in forensic investigations. “Would you agree with me,” Sultan inquired, “that in doing an objective forensic investigation, it’s important to be independent?” Bennett agreed firmly. Bennett also concurred with Sultan’s statement, “You don’t want your test results to be influenced by colleagues who are involved in other aspects of the investigation.” Sultan used those responses as a foundation to discuss with Bennett the risk of confirmation bias. In the context of law enforcement investigations, confirmation bias can entail prosecutors stressing certain pieces of evidence as a means of directing investigators and experts to target a specific individual as guilty. While Bennett agreed confirmation bias is always a risk, he avoided implicating the Hernandez investigation as suffering from this bias.

As a second line of attack, Sultan posited that footwear impressions are as much human estimations as they are scientific deductions. Sultan asked Bennett, who was careful to note that he’s not a “scientist,” if footwear impressions are largely subjective. Bennett categorically disagreed with this characterization. But then Sultan led Bennett to answer “no” to such questions as “Is there a fixed number of characteristics that need to be lined up for a footwear impression,” “Are there any stats in your field about probability” of impressions, and “Are there are any machines that you run impressions through and then the machines spit out a result as to whether or not in the opinion of the machine there’s a match?” Bennett nevertheless stood by his assertion that footwear impressions entail a methodology and do not consist—in the words of Sultan—of “eyeballing the transparency and impression and deciding what you think.”

NBA staring down labor crisis in 2017

Third, Sultan implied that Bennett was unqualified to give testimony about footwear impressions. Bennett acknowledged that his formal training on footwear impressions was limited to a three-day class back in 2006. He also admitted he lacks certification as a footwear examiner from the International Association for Identification. Bennett, however, maintained he possesses extensive experience as part of his work.

Fourth and perhaps most memorably, Sultan attacked Bennett’s footwear impression findings as inconclusive and imprecise. Bennett acknowledged that he could have conducted casting of the footwear impressions in addition to photographing them, but he did not. Sultan also led Bennett to concede that his investigation at the crime scene had been influenced by conversations with police officers before he arrived. Specifically, Bennett had been instructed to focus on footwear impressions that were at a distance from those impressions linked to eyewitnesses and first responders. Sultan expressed indignation at the idea that Bennett focused his analysis on certain footprints when he had no idea who might have murdered Lloyd. “When you got there that night," Sultan stressed to Bennett, “you didn’t know where the individual who shot Mr. Lloyd had walked or had run or whether was standing when he did that, do you?” In response, Bennett concurred. “You don’t know,” Sultan pressed on, “if the perpetrator of the crime was standing” in the same location as footprints found for eyewitnesses and first responders. Sultan wanted jurors to posit that the murderer’s footprints might have been where Bennett did not place his focus.

Legal impact of jurors believing that Hernandez was at the crime scene and relationship to “joint venture”

There is a reason why Sultan raised so many questions about Bennett and his testimony. If jurors conclude that Hernandez was at the crime scene when Lloyd died, it would go a long way in convincing jurors of Hernandez’s guilt. This is particularly true in Massachusetts, where a defendant can be convicted under a joint venture theory. This theory allows the conviction of a defendant who did not carry out the specific crime—in this case, shooting Lloyd dead—but who shared in the intent to carry out the crime and who significantly contributed to the crime.

To be clear, Hernandez being at the crime scene would not itself establish guilt under joint venture. Physical location at the crime scene would not establish that Hernandez contributed to Lloyd’s death or shared in the intent to murder Lloyd. It is plausible, for instance, that Hernandez might have opposed either co-defendant Carlos Ortiz or co-defendant Ernest Wallace shooting Lloyd, and Hernandez’s only incriminating role was to help his friends Ortiz and Wallace dispose of the murder weapon. In that scenario, Hernandez would have lacked the requisite intent to commit murder.

On the other hand, it would not take much imagination for jurors who are convinced of Hernandez being at the crime scene when Lloyd died to also conclude that he shared the intent to kill Lloyd. This is exactly why Sultan attempting to undermine Bennett’s testimony on footwear impressions is so crucial to Hernandez’s defense: once jurors mentally visualize Hernandez at the crime scene when Lloyd dies, the prosecution’s chances for a conviction rise dramatically

Michael McCann is a Massachusetts attorney and the founding director of the Sports and Entertainment Law Institute at the University of New Hampshire School of Law. He is also the distinguished visiting Hall of Fame Professor of Law at Mississippi College School of Law.