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Legal View with Ashleigh Banfield

Murder Trial of Aaron Hernandez Begins; Latest on Possible Jordanian Prisoner Swap with ISIS;

Aired January 29, 2015 - 12:00   ET

THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.

ASHLEIGH BANFIELD, CNN ANCHOR: Hello everyone. I'm Ashleigh Banfield and welcome to Legal View. And we begin this show with the trial of a one time NFL superstar former New England Aaron Hernandez.

As the team is getting ready for Sunday Super Bowl, that former player is sitting in that court room at this moment and it is day one of his first murder trial. Yes, I said first murder trial because there's going to be a second murder trial, for a whole other situation, a double murder.

That case will happen later this year but right now, prosecution is just beginning its opening statements. There are 12 women and six men on this jury. Six of them are alternates.

I want to get you right into this court room so you can hear how the prosecution is starting its case.

(BEGIN VIDEO CLIP)

PATRICK BOMBERG, PROSECUTOR: ... (inaudible). Defendants and Carloz Ortiz and Ernest Wallace left from that slot. And they left Odin Lloyd there, they left evidence at the scene. They took evidence with them. They have created evidence of their cooperative effort and they try to and in some cases were successful in destroying it.

In the course of this trial, ladies and gentlemen, the commonwealth is going to prove you as the defendant committed the crime of possession with firearm. He committed the crime of possessing and using when committed the crime of murder.

Ladies and gentlemen, Odin Lloyd at the time of his death in June of 2013 is 27 years old. This is a photo of Mr. Lloyd. He was born in the U.S. Virgin Islands. He moved to the City of Boston with his family at the age of three and a half years old. He lived at the time of his death in the Dorchester section of the City of Boston with his mother and his two sisters.

He graduated from high school in Boston. He played football and he was on the track and field. After graduating from college or from high school, he has no money for college so he entered into the workforce but he continued to play football in a league in the City of Boston.

At the time of his death, Odin Lloyd was working for a fertilizer company, a lone (ph) fertilizer company in Norwood (ph). He would get - he was a very reliable employee and he would get from his home in Dorchester to his job by taking a bus. And then ride his bike to business.

Prior to his work in there at the fertilizer company, he has worked as an electrical contractor and that work brought him to the City of Connecticut at the end of 2011 and to the beginning of 2012.

He stayed a comfortable suite hotel there when he was working in Connecticut and there, he met Shanea Jenkins, the younger sister of the defendant's fiancee Shayanna Jenkins.

They began dating in March of 2012. That's what the evidence to (inaudible) that we iterate ladies and gentlemen. On 2012 to the time of Mr. Lloyd's death in 2013, the relationship between Odin Lloyd and Shanea Jenkins progressed (inaudible) pretty much everyday.

Shanea would call Odin while she herself is going away to her work. When they first met, Shanea was working at a hotel either on a 3-11 shift or 11-7 shift and she was attending college.

By the time of Mr. Lloyd's death in June of 2013, Miss Jenkins, Shanea Jenkins graduated from college. She was accepted in law school in the City of Boston. She was planning to move to the Boston area, she had an apartment, she had a job (inaudible).

Now -- And Shanea Jenkins and Odin Lloyd's relationship progressed, Shanea would come up to Boston to visit, visit with Odin and his family and Odin would go down to Connecticut to visit with Shanea.

When Shanea came up to Boston, she would stay at her sister's Shayanna's house. The course of this trial is delved into pure evidence that Shanea Jenkins, the younger sister of Shayanna, Shayanna Jenkins and the defendant Aaron Hernandez grow up in the area of Bristol, Connecticut.

Shayanna Jenkins and the defendant Aaron Hernandez dated in high school. The defendant left college began playing professional football. And when he did that, Shayanna Jenkins and he were together.

And in November of 2012, we had a trial again.

(END VIDEO CLIP)

BANFIELD: So you are looking at the players in the courtroom. There are some incredible dramatics playing out silently in that gallery because on one side, the family of the victim and you're seeing that victim picture right there on the computer screen. That's Odin Lloyd.

Directly to the left that computer screen that's now going dark is Aaron Hernandez, 25 years old and facing the most serious of changes that you can be when sitting in a courtroom, first degree murder.

So, while his family is on one side of the courtroom including his fiancee. His fiancee's sister was dating the victim in this case and she is sitting on the other side with the family of the victim. So you can only imagine the tension and the dramatic element that is that silent courtroom.

But for this persecutor laying out his opening case, I want to go straight to Alexandra Field who is standing by live reporting at the court house in Fall River, Massachusetts.

Alexandra in my many, many years, I've also -- I've got all of my panelists here. We've got Danny Cevallos, Joey Jackson, Paul Callan, and I'm not sure that they will disagree with me. I have not heard an admonishment to a jury go on as long as I heard this morning from this judge.

Usually it's couple of lines to stay away from the media and don't read your text in your cellphone et cetera, but this one on -- by my guess, several minutes maybe 5 minutes. They are dead serious about how high profile this case is and how critical the role of the jury is to stay away from the headlines.

ALEXANDRA FIELD, CNN CORRESPONDENT: Yes, new judgment on and on and on with constructing about these jurors, media to take responsibility protect themselves from any kinds of conversations about their case happening outside of that courtroom.

And frankly, Ashleigh, this is Patriot's country and this is all that anyone in this community and in the wider Boston area will be talking about for the next few weeks, if not months, that's how long this trial could last, a couple of months here.

At the same time, you have the Patriots heading to the Super Bowl. You've got Aaron Hernandez standing trial. He scored the last touchdown, the last Patriot touchdown in their last Super Bowl, so those things are all coming together at once. The story line is of critical importance. The judge says that the jurors do everything they need to, to shield themselves.

The judge at one point even told them, you know, have a friend, go on with your Facebook page or social media before you do to prevent yourself from seeing anything. They're really trying to protect the integrity of this case. It's been an 18-month build up to where we are today. There were stops and starts. They took a lot of time trying to select the right jury. They pulled enough big pool because they really want to get a group of people who could be unbiased and could be objective and listening to the facts of this case.

They started with about thousand people, a lot more than you would typically have called for a situation like this and even this morning, Ashleigh, there was some last-minute rearrangement being made with the jury. This trial should have started a couple of hours ago. It's only getting started right now because the 18 jurors that's been selected on Monday were supposed to show up her at 9:00 this morning. One juror was delayed, another juror then passed a note to the judge. After that, the judge brought in an additional pool of jurors. It seems that one of the woman was originally seated was removed and another man was put in her place.

We don't know the circumstances of why that woman had to be taken off of the jury but we do know of the make up right now, 12 women, 6 men and they are hearing the first few minutes of the arguments of prosecution to make. They've got 45 minutes to make that opening statement, Ashleigh.

BANFIELD: So as you just said, we got 12 women and 6 men, and not one of them know is if he or she is ultimately going to end up as a non- decider, as an alternate, which is always very dramatic as well. As they've all worked very hard to the weeks and weeks of a murder trial, again, stakes couldn't be higher.

Alexandra, thank you. I'll let you get back to work. I want to get to my panel right away on this one.

Some housekeeping for those of you who spent a lot of time inside the courtroom, it's not quite the same as you see on television. Sadly, there's only one microphone in that courtroom so that prosecutor is very hard to hear. It is far more dramatic when they stand up and they start presenting that ugly, ugly accusation against one man sitting there, ostensibly all by himself but flanked by attorneys.

Paul, just describe for me for a moment, what is like for those jurors who are staring at a superstar, and hearing all these accusations, maybe some of them clearly for the first time?

PAUL CALLAN, CNN LEGAL ANALYST: Well, the superstar status kind of helps him tremendously because a lot of time jurors are saying, "Hey, with this all money and all this fame, all this fortune, why would he do something stupid like this?" So, he sort of goes in with a stronger presumption of innocence maybe than an ordinary citizen, they know nothing about.

But on the other hand, as they stare at him, they then start to listen to the prosecutor who will meticulously explain for the first time the details of his case. And that if he's persuasive starts to move the needle in the favor of the prosecution. This is a big moment for the prosecution.

BANFIELD: Some people say that cases are won and lost in openings and other people say that cases are won and lost in the closing argument. These are statements, those are arguments. But these statements are so critical because they gave you that framework. They gave you everything that you need to rest all the facts inside.

JOEY JACKSON, HLN LEGAL ANALYST: They do, Ashleigh and, you know, the judge will certainly remind the jury that this is about an opening statement just laying out the case, it's not factual whatever the attorney say is never factual, it's up to the evidence and the testimony that they hear in the witness stand. But at the end of the day Paul talked about pushing the needle.

Remember the interesting thing about any trials that there are two professors in that courtroom. The first professor is the prosecution and of course they're going to spin the evidence and make it compelling to their side. Remember this is a largely circumstantial case what does that mean, we don't have a confession. It means we don't have an eyewitness potentially unless the other the two turn states evidence. And we don't have a murder weapon. And so they are going to that is the prosecution tell that jury use your common sense and you're allowed not to speculate but to draw a reasonable inferences from the fact.

And if Aaron Hernandez was with Odin Lloyd he arranged everyone to meet. He went to that industrial park with Odin Lloyd. Odin Lloyd is then found dead moments later. We have the Nissan driving out, driving in. Who else did it? And also remember on the joint ventral liability which acting in concert. The prosecution did not show who pulled that trigger only that he was an active participant that is Aaron Hernandez in this...

BANFIELD: I would say there are three professors in this case one of them is you Mr. Jackson. That was a beautiful...

JACKSON: Oh, that's nice of you. Thank you Ashleigh.

BANFIELD: ... what this is all about. And you touched on the notion that this is a circumstantial case. A lot of people make the error by saying it's just a circumstantial case. And perhaps they have forgotten or weren't schools in the first place. That sometimes circumstantial case is a critical case. Sometimes circumstantial evidence is the best evidence, DNA, fingerprints, circumstantial, witnesses, bad eye sight, snow storm, couldn't see straight not good evidence.

DANNY CEVALLOS, CNN LEGAL ANALYST: With the advent of technology, circumstantial evidence is more powerful than ever. Because as we leave a digital wake of evidence in our path, you can pinpoint where you were and what you were doing in a way that builds a case much in a way stronger than directive. And remember direct evidence is just someone saying I saw him shoot the sherif.

The circumstantial evidence if we don't build a case that shows that somebody was somewhere with the gun. Professor Plum had the candle stick in the library even if nobody ever utters a peep. You can -- that is, that circumstantial evidence that you draw inferences. And the jurors are empowered to draw inferences.

You know, you talk a little about opening statements. The judge will warn the jury that they are not -- opening statements are not evidence neither closing statements. But they are such in art form, you know, closing statements you are allowed to make argument, you are allowed to talk about to the jury as an attorney what about, what you think the evidence has shown.

BANFIELD: But persuade them.

CEVALLOS: Right. Exactly but opening statements are their own art form because you aren't limited, you can not make arguments so instead...

JACKSON: Although we always do.

CEVALLOS: .... they -- oh we always try to sneak in.

JACKSON: Yes. CEVALLOS: But it becomes storytelling, you're basically telling a story but that story is also a promise. And you are promising the jurors that every fact in your story will be borne out by the evidence. And if it is not, you better believe the defense attorney will exploit that and remind the jurors that at the beginning of this case the prosecutor made a promise. And they did not keep their promise.

CALLAN: Can I jump in on one point on circumstantial evidence?

BANFIELD: Make it quick. We're going to squeeze in a break but -- OK.

CALLAN: The judges often advised juries this is what it is. Let's assume there's a snow storm and you have a pristine lawn. And then hours after the storm you see footprints going to a front door, can you reasonably assume somebody went in to the house? What stronger evidence is there than that? That's an example of circumstantial evidence. So it's not confusing, sometimes it can be very, very clear.

BANFIELD: And more clear than the 90-year-old neighbor who is presbyopic and couldn't...

CALLAN: Correct.

BANFIELD: ... see through the snow storm and that's her testimony that someone went up...

CALLAN: But the footprints in the snow they say it all sometimes.

BANFIELD: Yeah. The direct evidence can be weak as weak as the claims are circumstantial.

All right folks hey, take a quick break here but don't go far because there is some evidence that is -- well it would curl your hair. Here is the problem, or here is the success if you're looking at it from the defendant's point of view that will not see the light of day nor the inside of that courtroom and that prosecutor on your screen is non too happy about it.

After the break you will find out what evidence that jury will not know about.

(COMMERCIAL BREAK)

BANFIELD: We are live in the Aaron Hernandez murder trial that is day one of the case against that 25-year-old former football star New England Patriots of that as the rest of that team gets ready for Sunday's big Super Bowl.

That is the lead prosecutor in the case who is making his opening statements to the jury. About a 45-minute statement the defense will follow him with about a half hour. And then the witnesses and the rest of trial it's effectively on. It's going to be ugly off the top because that's what the prosecution does. They set out a whole case against him.

But here's the deal the whole case is not always the whole case. You may think you've got the best good as you go into that courtroom. And a defense attorney can chip away at your case with things called suppression request. And there were a lot of them, the defense asking the judge to suppress some of the evidence in this case. Why on earth would that happened, why chat it all come in if its evidence, its evidence?

We've got the three best minds in the business here on the set with me. So Paul Callan, suppression of evidence is a strategy it is a tactics game and it works. And in this case wow, do they ever get a lot suppressed.

CALLAN: Well, they got a particularly important piece of evidence and that was a text message in which Lloyd, the victim said NFL...

BANFIELD: To his sister.

CALLAN: To his sister suggesting that he was trying to tip her off that if something happens to me I'm with NFL meeting Hernandez.

BANFIELD: Just so you know.

CALLAN: Just so you know. All right.

BANFIELD: Just so you know, I'm with NFL.

CALLAN: That sounds like he was anticipating trouble and maybe he was going to die. And this would be the last message he would leave.

Now boy, that's compelling evidence. The judge said I'm not allowing that into evidence because there's a rule, it's called the dying declaration rule, you have to prove that that the person who sends -- that your message was in actual fear of death. It can't be just sort of a vague observation. And she threw that evidence out.

A lot of courtroom of service that had got thrown out because she thinks there's enough other evidence that we don't want to mock it up with this sort of thing that might get a reversal on appeal. That's the story.

JACKSON: If that's the big evidence, in addition to that remember there's something even more compelling in that, and what is that? He of course as you mentioned at the outset, Ashleigh is also accused and charged with two other murders in Boston which occurred in 2012.

The prosecution waned to use that as motive to say that Odin Lloyd the deceased here knew about those murders and as a result he was trying to hush him that is Aaron Hernandez ,therefore sneaking that evidence in. But the judge said no it's so prejudicial.

BANFIELD: But why is he charging the obstruction of justice then?

JACKSON: Well think about these.

BANFIELD: We're tampering with that, witness tampering.

JACKSON: Sure. But think about this, Ashley in the event that a jury believes that you're involved in two other murders, would they not band therefore say that well if you did that then potentially you did this. And so by exploding that and saying it's overly prejudicial you get examined and charged on a fact to this case and not what you may have done at some other time.

BANFIELD: You mean just because you're accused of killing two other people you didn't kill this one?

JACKSON: Exactly.

BANFIELD: Got it. So Danny there's other evidence that's pretty damning as well, that those jurors will never see unless something crazy happens but ultimately right now it's suppressed and that is the photograph of -- it's a video. It's actually surveillance video of Aaron Hernandez holding a gun in his front (inaudible). It's his own surveillance video inside his own home, suppose to protect him ultimately it could have come back to bite him, but strangely enough it's suppressed. Why?

CEVALLOS: A lot of this evidence has been suppressed because of problems with the initial search warrant, right? And the problem with suppressing evidence whether it'd be from a bad search or some other reason. Is it's usually evidence that...

BANFIELD: And look at that picture?

CEVALLOS: ... you pull the jurors wouldn't want to hear -- absolutely yeah -- it's something that a court would want to see and what to hear but it's excluded and in many cases it -- lets a guilty person go free. However, as a public policy reason we say for the greater good to deter police from executing faulty warrants the only and entire books, texts have been written about what is the remedy when the police have ill-gotten the evidence.

BANFIELD: Right.

CEVALLOS: And the solution that we've arrived at in the United States is we take that evidence and we slice it out of the case for better to for worst...

BANFIELD: Because that...

CEVALLOS: ... because the idea is the ...

BANFIELD: ... is the fruit of a poisonous tree is that what that is.

CEVALLOS: Yes anything that's set blows from it, yes exactly any -- the fruit refers to its -- refers to a case -- it's that (inaudible) de Ohio.

JACKSON: At De Ohio.

CEVALLOS: Great. I hope so Joey I would probably got to get some tweets about that if we're wrong.

BANFIELD: Can I ask you guys, though, this always drives me crazy and it's just a subjective it seems judge by judge (ph), but there is another case again that was with Aaron Hernandez in which one of his friends sort of the bodyguard-ish sort of friend was shot in the face. Allegedly by Aaron Hernandez strangely he's not charged but he is facing his civil suit and that fella who now I think can't see out of this shot eye.

JACKSON: Excluded evidence.

BANFIELD: Like he can testify his on a witness lists.

JACKSON: However, Ashleigh they cannot go into the facts underlying that case for the same reasons that I spoke about with the murders that his accused of. It's what we call propensity evidence simply because ...

BANFIELD: What about pattern? What about the notion of pattern and the fact that this man was shot with a 45 cal I think that you don't know

(CROSSTALK)

JACKSON: It's probably 45 caliber

CEVALLOS: It's a great point.

JACKSON: Yes.

BANFIELD: Shot in the face this victim shot as well and then of course the other two, I believe were shot also. Pattern...

JACKSON: Briefly Ashley...

BANFIELD: .... pattern, pattern.

JACKSON: Yes. What happens is there's something called the MIMIC rule, if you have evidence like those two motive, identity, common plan or scheme which is the pattern you're speaking about it could be otherwise admissible.

However, if a judge deems the two prejudicial that the evidence comes in then it gets excluded and you might imagine that this jury if they hear that you shot your friend in the face in February of 2013 and then a charge in a murder in June of 2013 it's overly prejudicial they're not going to judge you fairly.

CEVALLOS: But the judge may led in the fact that's a witness saw him with a gun on a prior occasion because that is on the evidence that he had a gun.

BANFIELD: I love that you said may. I love that you said in may and therein lay -- therein lies the drama because we don't know about some of the maneuvers that are about to happen in that courtroom.

So I just need to squeeze in another break quickly but the live action is happening inside that Fall River Massachusetts courtroom right now.

The case against Aaron Hernandez. Dennis Cevallos and Paul Callan and Joey Jackson stay with me as we continue to our opening statements.

Also I want to remind you that CNN is airing a special reports tonight on Aaron Hernandez -- oh, excuse me tomorrow night on Aaron Hernandez it begins at 9 p.m Eastern.

And if you though you knew everything about this case. Boy, you are going to be surprised by some of the details and you know what they say, "Devil is in the details so often." That's why courtrooms and trial take so long and they're so merticulous.

Got another big story that we're watching right now because the sun has set on a deadline for that prisoner swap, that deadline has passed and the uncertainty growth by the minute over the fate of those hostages who are right now being held by ISIS. Are they even still alive? Right back after this.

(COMMERCIAL BREAK)

BANFIELD: It is well after 8 p.m in Mosul, Iraq almost three hours past sunset and that is very significant because sunset in Mosul with the latest ISIS deadline for the release of an Iraqi terrorists from a Jordanian prison and still no word on the fate of that woman.

She is right there in the middle of your screens Sajida al-Rishawi. We also don't know the fate of the two ISIS hostages who are on either side of her on your screen on the left the Jordanian fighter pilot named Muath al-Kassasbeh and on the right Japanese journalist Kenji Goto.

Those two men, their lives right now are said to depend on the release of the woman in the middle and yes that's a suicide vest she's wearing and yes it didn't explode when she tried to, and yes its white she's in prison.

A journalist that converged on the boarder post in Turkey where an exchange -- well it just might have taken place but while Jordan is -- has said that it's willing to do such an exchange to get the pilot back and certainly Kenji Goto as well. First, it said we need some proof that our men is still alive that our fighter pilot is not dead and that proof never came from ISIS.

I'm joined now by CNN's Jomana Karadsheh in a Oman and from London our Chief International Corespondent Christiane Amanpour.

Jomana could you just give me the latest update on what the Jordanians are saying about this deal and this deadline that is now expired.

JOMANA KARADSHEH, CNN CORRESPONDENT: Well, Ashleigh since that deadline ended really the Jordanian government is saying the Sajida al-Rishawi that would be female suicide bomber that ISIS is asking for is still in Jordan has not left the country and still in jail. The Jordanians are insisting on their demand of proof of life. They say, for some time now, they have been asking through the indirect channels, they have been going through four negotiations with ISIS for the release of the pilot for that proof of life. And they say they have not received that. They say that unless that happens, that deal is not going to happen.