Painted pellet gun offered up as defense of Aaron Hernandez

It was Aaron Hernandez's defense team that introduced a Taiwanese-made soft pellet gun as evidence in the murder trial of the former New England Patriots star.

And it was that gun – or at least its oddly paint-altered barrel end – that served as an example of the defense's creativity, aggressiveness … and apparent desperation in this case.

The pellet gun carries some of the same unique physical characteristics of a Glock 21 Generation 3, .45-caliber automatic pistol. That's the weapon prosecution expert witnesses have identified as being used to murder Odin Lloyd on the night of June 17, 2013, behind a North Attleboro, Mass., industrial park and as the object being held by Hernandez minutes later in surveillance video inside his nearby home.

Needless to say, if the defense can't refute, or at least establish reasonable doubt in jurors on this point, the case may be over. The coincidence of Hernandez carrying, without explanation, the same make and model as the murder weapon minutes after a middle-of-the-night shooting is a critical point, especially in a case where the gun was never found.

There's a reason the witness at the center of this issue, Glock Inc. regional sales director and former small town police chief Kyle Aspinwall, spent nearly eight hours on the witness stand across the last two days, answering detailed questions from prosecutors and defense attorneys alike.

The defense has suggested the image could be anything from a television remote control to a computer tablet. Then there is the pellet gun, which would be perfect because it's a weapon-like shape that couldn't actually murder someone.

The issue was that while the image in the video is all black, the pellet gun offered up had a bright orange barrel. Or it apparently was supposed to, except that the one presented by the defense had the end of the barrel mysteriously painted black. It served to make it look more like the image in the grainy still shots from the home security video.

During a re-direct of Aspinwall, prosecutor Patrick Bomberg seized on what appears to be the gun's deliberate altering.

"Smell that," Bomberg told Aspinwall, handing him the pellet gun, almost jamming the barrel under the witness' nose.

Aspinwall took a deep, dramatic breath, perhaps getting hit with the scent of paint.

"Something has been applied to that to change its appearance," Bomberg said.

"Yes," Aspinwall agreed.

No one ever determined if the barrel of the gun was truly painted, let alone by whom or under what motivation. It doesn't qualify as evidence tampering because it wasn't something police found and was merely used as a comparative tool. Judge Susan Garsh didn't seem particularly moved by the suggestion that it had been altered and the defense never objected to the implication.

"You see any orange here?" Bomberg asked Aspinwall when looking at a still shot of the video camera showing Hernandez with a dark object in his hand.

"No," Aspinwall said.

You could hardly blame the defense for trying; that is if it did, indeed, try here.

The thing is, it otherwise had a good day on Thursday. James Sultan is one of the country's top criminal defense attorneys and that was on display in what was often a brilliant cross-examination of Aspinwall.

Sultan was able to show new and different still shots of the surveillance video where Hernandez is carrying what appears to be a lit-up computer tablet, not a gun. He slyly, but without being over the top, noted the prosecution excluded these images in Wednesday's questioning of Aspinwall.

"You see him holding what appears to be an object that is lighted up in his hand?" Sultan asked.

"Yes," Aspinwall said.

"It doesn't appear to be a firearm, does it?" Sultan asked.

"No, not at all," Aspinwall conceded.

Up went another still shot.

"Same?" Sultan said.

"Yes sir," Aspinwall said.

Another still shot from a second later.

"Same?"

"Yes, sir."

And on and on, frame after frame. This was even after Sultan tried to paint Aspinwall as a stooge for the prosecution and tear down Aspinwall's credentials as an expert.

"You are by no means an expert in weapons identification, are you?" Sultan continued.

"I don't consider myself an expert, no," replied Aspinwall, who on Wednesday testified that it is his determination from watching the surveillance video that Hernandez is holding a Glock 21 Gen 3 in his hand.

"You don't have any supernatural powers of vision, do you?" Sultan asked before an immediate objection that Garsh sustained.

It was a good session that raised plenty of questions. The Commonwealth was even forced, in light of video showing Hernandez carrying the tablet, to offer up a new theory. It suggested that co-conspirator Carlos Ortiz may have originally carried the Glock inside the house. That seemed both originally avoidable and noticeably reactive.

Unfortunately for Hernandez, reality keeps hitting him. On Thursday his team convinced Garsh to strike some of Aspinwall's Wednesday testimony from the record, basically limiting it to any identification via Glock's signature curved back strap. That's good for the defense, but it's a day late since the jury heard the rest of it. It's a lot to expect it to recall and then decipher which complicated identification came because of which piece of visual evidence.

Then there's the tablet. It was a major boon for the defense, except in the security video there is a 48-second gap between when he is seen carrying it, leaves the camera view, and returns with what looks more like the gun jurors were shown on Wednesday. That's more than enough time to put one thing down and pick up something else.

Besides, there is no record police found a soft pellet gun in their extensive search of the Hernandez home, and the defense has not admitted one into evidence. It instead just offered up that painted barrel pellet gun with the clear understanding that this was just a comparative prop.

So if Hernandez did own a soft pellet gun, why wouldn't the defense produce it? It would be a heck of coincidence if he just happened to throw it out as police zeroed in on him for murder. And if he did that, what's the explanation?

Legally Hernandez isn't required to answer any of that, or mount any defense at all. The burden of proof is solely on the Commonwealth. In real trials though, these are the questions that run through the minds of juries.

This is the struggle for Hernandez. Over seven weeks of the trial at Bristol County (Mass.) Superior Court, the prosecution has, via painstaking details, built a strong case.

It's certainly made mistakes and there are openings to be had, but thus far the defense has been unable to offer any exculpatory evidence or alibis that keep Hernandez from the scene of the murder.

You're left with long days such as Thursday: Sultan doing a brilliant job with what little he has, so little that a painted barrel of a soft pellet gun gimmick somehow occurs. In football terms, the game, even on Hernandez's best days, is being played entirely within just a few yards of his own goal line.

It's going to take more than some black paint to change that.

 

• Crime & Justice
• Society & Culture
• Aaron Hernandez