Evidence precedent in Hernandez case worries top SJC judge

Aaron Hernandez in court during the Odin Lloyd murder trial.Steven Senne/Associated Press/file 2015

The state’s top judge voiced concern Tuesday that a dispute over Aaron Hernandez’s cellphone might set a precedent that could transform lawyers’ offices into warehouses for incriminating evidence against their clients.

The Suffolk District Attorney’s office wants to examine the phone for evidence linking Hernandez to the July 2012 murders of Daniel de Abreu, 28, and Safiro Furtado, 29, in Boston’s South End.

The phone is in the possession of Hernandez’s defense lawyers, James Sultan and Charles Rankin, who say handing it over would violate attorney-client privilege and a state law that bans prosecutors from using search warrants to obtain physical evidence from lawyers unless there is evidence they are hiding it in some fashion.

During oral arguments before the full Supreme Judicial Court Tuesday, Chief Justice Ralph D. Gants said that if a criminal possessed the cellphone — as opposed to the lawyers — prosecutors could use a search warrant, a subpoena, or even another governmental agency to obtain it.

Gants said he was concerned that if the stance taken by Hernandez’s defense lawyers becomes legally acceptable, the relationship between lawyers and criminal defendants could undergo an unwelcome change.

“We clearly do not want the strategy of every criminal to be as soon as you hear that you are under investigation you hand your computer over to your attorney and have it protected forever,’’ Gants said.

Sultan, arguing for Hernandez, countered that current state law does not permit lawyers to do anything except hold on to the phone. If the justices think it should be otherwise, he added, they should leave it to the Legislature to change the law.

Suffolk Assistant District Attorney Teresa K. Anderson told the court that the effort to obtain the phone would not undercut the longstanding protection for direct communication between attorneys and their clients, such as a letter in which the client admits wrongdoing.

That type of evidence will remain out of reach of prosecutors, she said. But prosecutors must be able to obtain physical evidence from lawyers after they have fully examined it.

The SJC took the matter under advisement.

Hernandez, 26, has pleaded not guilty to two counts of murder in the shootings of de Abreu and Furtado. He also pleaded not guilty to a charge of witness intimidation. Police say he shot an associate, Alexander Bradley, in 2013 in Florida because he feared Bradley would implicate him in the double murder.

A trial date has not been set.

Prosecutors believe Hernandez’s phone contains evidence relating to the Bradley shooting. According to court records, Bradley and Hernandez communicated by phone and text messages several times after the Florida incident and Hernandez acknowledged “rocking” Bradley, which prosecutors interpreted as an admission that he shot him.

After a series of court hearings, Hernandez’s lawyers obtained the phone about a month ago from a firm that previously represented Hernandez.

Hernandez was convicted of murdering Odin L. Lloyd, near the former New England Patriots player’s North Attleborough home in June 2013. Hernandez is serving a life sentence for the slaying.