Aaron Hernandez's cousin testifies with faulty memory on Day 33 of trial

Jurors in the trial of Aaron Hernandez may wonder about the memory of Hernandez’s cousin, Jennifer Mercado, who testified on Tuesday, the 33rd day of the trial.

Recalling conversations and observations from years ago can be extremely difficult for everyone. Even what we said and heard last week can be easily forgotten. The human mind is not a recording device, an important acknowledgment before scrutinizing the testimony of a witness in a trial. Nonetheless, jurors in the trial of Aaron Hernandez may wonder about the memory of Hernandez’s cousin, Jennifer Mercado, who testified on Tuesday, the 33rd day in a trial that is nowhere near finishing. Mercado seemed to recall certain parts of the past with precision and yet claimed to have completely forgotten other events, especially those that might incriminate Hernandez.

Bristol County (Mass.) prosecutors believe that Mercado possesses vital information in the case. She is the sister of Tanya Singleton, who allegedly helped co-defendant Ernest Wallace flee to Florida in the days following Lloyd’s murder in North Attleboro (Mass.). Mercado also observed Wallace and co-defendant Carlos Ortiz hours before Lloyd’s murder and, through Hernandez’s fiancée Shayanna Jenkins, Mercado received money from Hernandez while he’s been incarcerated.

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Prosecutors arranged for Mercado to testify with immunity in hopes that she would be more forthcoming without any fear of prosecution. Prosecutors sometimes use the granting of immunity as a weapon: namely, to prevent witnesses from effectively pleading the Fifth Amendment. An immunized witness cannot self-incriminate—and thus not gain protection by the Fifth Amendment—so long as the witness’s testimony pertains to subjects covered by the terms of the immunity. As a consequence, Mercado could not effectively plead the Fifth Amendment to avoid answering questions on matters relating to Hernandez’s prosecution. She only had three choices: testify and tell the truth, testify and lie (and thus risk perjury charges) or refuse to testify, a move that would have likely led to Judge Susan Garsh placing Mercado in jail for contempt of court.

Mercado—no doubt keenly aware that her sister, Tanya Singleton, was jailed for contempt of court—agreed to testify. Whether Mercado was fully truthful is hard to gauge. On one hand, Mercado appeared cooperative during the hours of her testimony and she appeared to make a good faith effort to answer many questions. On the other hand, Mercado answered, “I don’t remember” to numerous questions posed by prosecutor William McCauley. This was particularly true in response to questions about Hernandez’s statements to Mercado.

Prosecutors often regard the response “I don’t remember” and its equivalents “I don’t recall” and “I don’t know” with great suspicion. Yet it is extremely challenging for prosecutors to prove that an allegedly non-remembering witness is perjuring himself or herself. This is because it’s impossible to “get inside the head” of that witness.

A noticeably frustrated McCauley exhibited continuous skepticism in Mercado’s alleged defects in memory. At different points on Tuesday McCauley asked Mercado, “What accounts for your better memory [in response to certain questions] but not on other questions?”; “Has there been any change to your memory since” testifying before a grand jury in 2013; and “When you say you ‘don’t recall' is there something that interferes with your memory?” Mercado claimed “new medication” to treat post traumatic stress disorder and depression may be the cause for her memory issues while insisting, “I remember what I remember.” A change in medication, however, would not adequately explain why Mercado recalled certain past events but not others.

Mercado portraying Hernandez as a loyal and caring member of a family

Despite Mercado being unable to answer many questions, she did provide noteworthy testimony on certain topics. For starters, she recalled Hernandez growing up in Bristol (Conn.) and him spending considerable time at her Bristol home. Mercado also spoke at length about Hernandez acting as a de facto father for Tanya Singleton’s sons, who according to Mercado called Hernandez “Daddy Aaron” and “Uncle Aaron.” Hernandez “would spoil [his nephews] rotten,” Mercado remembered, while adding that Hernandez would help out family members “when backed up on the bills.”

Keep in mind, a defendant is usually ill-advised to make his character an issue in the trial since prosecutors can then introduce negative evidence about his character. A witness, however, can sometimes signal to jurors the defendant has a good character. During her testimony on Tuesday, Mercado repeatedly depicted Hernandez as a loving member of the family who used his wealth to help those family members in need.

Mercado recalls Wallace and Ortiz in Connecticut hours before Lloyd’s death

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​Mercado’s most significant recollection likely concerned her observations from June 16, 2013. This was the day before Odin Lloyd was murdered. Mercado remembered leaving her home that evening to take her dog out. She explained that she went to the porch and then let the dog take care of business on the lawn. While on the porch, Mercado recalled seeing Wallace—whom Mercado testified often lived with Mercado, Singleton and Singleton’s husband, Thaddeus Singleton—standing with Ortiz next to a “silver vehicle, a four -door sedan of some sort” that she had never seen before. Mercado then remembered the two men telling her “bye” and Wallace getting into the driver’s seat and Ortiz jumping in the front passenger seat. She did not know where they were going, but prosecutors contend Hernandez had ordered the two men to drive to Massachusetts to help him murder Lloyd. Mercado thus helped prosecutors on two fronts: (1) help to establish a connection between Hernandez and his co-defendants and (2) validate portions of the timeline proposed by prosecutors.

Mercado, however, exhibited difficultly recalling events after telling the court about what she saw while taking out the dog on June 16 2013. She responded with “I don’t know,” “I don’t remember” or “no” to such questions as:

• Do you recall the next occasion you saw either Wallace or Ortiz?

• Do you recall Wallace and Ortiz returning to your home?

• Do you remember Wallace, Ortiz and Tanya Singleton at your home on June 19, 2013?

Mercado confirms suspicious behavior by Tanya Singleton after Lloyd’s death

After several attempts to rephrase his questions to elicit more complete responses from Mercado, McCauley succeeded in getting Mercado to discuss her conversation with her sister (Tanya Singleton) about Singleton’s road trip to Georgia following Lloyd’s death. Mercado confirmed that Singleton made her aware of her forthcoming trip to Georgia, although Mercado maintained she was not aware that Singleton would take anyone on the trip. Mercado also revealed that her sister used a different cell phone number while on the trip, adding that she could hear Wallace in the background while speaking with Singleton. When Singleton returned to Connecticut several days later, she resumed using her previous cell phone number. It may have struck jurors as suspicious that Singleton, while on the road with Wallace, would use a different phone and then return to using her normal phone after Wallace continued onto Florida.

Mercado, however, struggled to recall an especially memorable event. Mercado remembered that after Lloyd's death, she received a text from a number she didn’t recognize and that the text asked her to do something. Mercado said she “relayed the message” but could not remember what it was about or to whom she relayed it. She also didn’t remember having a conversation with the person who sent her the text. McCauley wondered how this was possible given her more forthcoming testimony before the grand jury and how she could recall the night she took out the dog in detail. McCauley even showed Mercado a copy of her testimony before the grand jury in hopes it would jog her recollection. Mercado told McCauley it did not refresh her memory and added that her attorney had (a cynic would argue intentionally) not given her grand jury materials to review before she testified on Tuesday.

Mercado seemed similarly forgetful—or perhaps evasive—when asked to retell her conversations with Hernandez while he’s been in jail. Mercado claimed that although she has spoken with Hernandez five or six times since Lloyd’s murder, she does not recall ever talking about the case against him. McCauley clearly found that hard to believe. Nonetheless, Mercado explained, Hernandez focused his remarks with her on the health of Tanya Singleton (who has cancer) and on how Singleton’s sons were doing. Hernandez, Mercado noted, wanted to make sure there was money to pay for the boys’ school clothes and similar items.

Mercado eventually conceded that Hernandez spoke at least indirectly about the case. Hernandez told her “it wasn’t right” that Singleton had been placed in jail for failure to cooperate in the investigation, especially given that she had cancer and two young children. Mercado later added that Hernandez opined he “was innocent and God will see us through.”

Mercado confirms that Jenkins gave her money

Prosecutors believe that Hernandez, through his fiancée, has bought off witnesses so they do not implicate him. McCauley led Mercado to admit that Jenkins had given her money since Hernandez has been incarcerated, though on cross-examination Hernandez attorney Charles Rankin led Mercado to also admit that Hernandez had regularly provided his family members with money to help out with bills. It should be noted, moreover, that Mercado testified that Jenkins gave her money while Mercado was taking care of Singleton’s sons due to Singleton’s incarceration.

Marijuana or Angel Dust?

In one of the more interesting exchanges on Tuesday, both sides’ attorneys asked Mercado about whether she saw Wallace and Ortiz use phencyclidine, better known as PCP or angel dust. Hernandez’s attorneys want jurors to conclude that Wallace and Ortiz were not fleeing a murder but rather fleeing a drug deal or perhaps behaving “crazy” due to angel dust. Alternatively, Hernandez’s attorneys might eventually suggest that Hernandez and his two co-defendants could not have formed an intent to murder Lloyd—a required element of first-degree murder—because they were high on angel dust, which can cause hallucinations. Hernandez would likely not avoid a conviction on second-degree murder, however, through such a strategy.

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​Mercado delivered at times a confusing testimony about whether she knew or merely suspected Wallace and Ortiz had used angel dust. McCauley suggested Mercado—who often failed to remember the past during her testimony—curiously added new “memories” about the two men using angel dust that she lacked when testifying before a grand jury in 2013. Mercado nonetheless insisted that she smelled angel dust in a blunt smoked by Wallace and Ortiz while the two men were on her back porch in the spring of 2013. Mercado explained that angel dust “has a plastic burning smell,” whereas marijuana “has an herbal smell.” Mercado also recalled Wallace acting “crazy, erratic, argumentative …sometimes he would scream mumbo jumbo—it wasn’t English.”  She further explained that Wallace “sweat a lot” and that he and Ortiz “would have to wipe themselves—they acted real jittery, crazy.”

Mercado testified that Wallace and Ortiz acted as if they were on angel dust when she saw them while taking the dog out on June 16, 2013. But on re-direct, McCauley showed Mercado a video of Wallace and Ortiz moving items in and out of a car parked in Hernandez’s driveway. The two men seemed to be acting in an intentional and methodical way. The video was taken only a few hours after Mercado had seen Wallace and Ortiz. Mercado stood by her recollection, but her doing so may have reminded jurors to take what she said with a grain of salt.

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.