If he still prays I’m sure Aaron Hernandez is thanking God for his good fortune in having Judge E. Susan Garsh sitting on his trial. After the most recent hearing if you could have gotten close enough to him you would have heard him singing: “Zip-a-dee-doo-dah, zip-a-dee-ay My, oh my, what a wonderful day. Plenty of sunshine headin’ my way, Zip-a-dee-doo-dah, zip-a-dee-ay.”
The sunshine Aaron is singing about is his freedom which seems close at hand because Judge Garsh’s propensity to agree with his lawyers on matters in dispute. Her reputation is that like the Tower of Pisa she leans. In her case it is toward the defendants. Her rulings in Aaron’s case the other day sure won’t make a dent in that reputation.
That augurs poorly for the prosecutors. They’ll be facing the same type rulings during trial. It’s hard enough to try a high publicity murder case without seeing the judge and the defense lawyers wearing the same team jerseys.
I’ve stated having Judge Garsh sit on this case is a bad idea. She has a history of open disputes with the Bristol County prosecutors. Defense counsel being clever are playing this to their advantage.
An example of her bent away from the prosecution are her rulings keeping out evidence of Aaron’s involvement in prior shootings; keeping out the text statements from the victim of the murder; and not letting a picture of Aaron holding a gun into evidence. The important things she gives to the defense, the unimportant matters to the prosecutors.
Judge Garsh’s decision to keep out of evidence the two text messages Odin Lloyd sent to his sister, one just before he was murdered wrongly denies a big chunk of the evidence of Aaron’s guilt to the prosecutor. They are ““U see who I’m with?” and later “NFL, just so you know.””
There is no doubt the statements are material and relevant to the case. The jury should know who was with the victim just before he was murdered. The jury should also know what was on the victim’s mind to weigh those statements in light of all the other circumstance. The jury must be given the opportunity to figure out why he was so interested that his sister know who he was with.
Such statements are governed by the hearsay rule which provides that out of court statements of persons offered for the truth of a matter are not admissible. That rule was created because of the inherent unreliability of someone telling what someone else said and the inability to cross-examine the declarant as to the circumstances behind his making the statements.
But that isn’t the case here. These aren’t verbal statements being repeated by someone else.They are text messages that contains the actual words of the victim. They are reliable records of the event themselves. Their reliability cannot be questioned. Cross-examination would have no effect on them.
Judge Garsh said those will not be allowed into evidence because “the texts did not suggest any hostility and that prosecutors didn’t meet the burden to prove Lloyd felt he was at an “imminent death.” Those may have been the standards used if someone tried to get verbal statements of someone else into evidence. That should not be the standard when its the words of the victim.
Odin Lloyd wanted to make a record of his whereabouts it with his sister. Otherwise, the messages make no sense. He’s texting as far as I interpret them saying “in case something happens to me you know who did it.” You see how I come down with a totally different view of the evidence than Judge Garsh. The fact finder, the jury, should decide what they implied in light of all the evidence.
There’s a good discussion of this by a law professor. He recognizes the hearsay issue but states: “The evidence is here, and courts do not have the tools they
need to analyze its admissibility in a way that meaningfully separates statements that should be admitted from those that should not.”
Judge Garsh should have let this critical evidence into trial. She should have looked at the materiality, relevance and reliability of it. Clearly it is critical evidence. She should have recognized the rules of evidence were written many years prior to the existence of text messaging and modern communication. Evidentiary rules must keep up with the times.
Her bent to help defense counsel accounts for the ruling. If she let it into evidence and it was error Aaron could get another bite of the apple. By keeping this critical evidence out and if Aaron is acquitted it can never be reviewed. How will the public ever believe justice was done when the text messages of the victim sent immediately before his murder are not allowed to be seen by a jury? Odin Lloyd’s mother left the courtroom in distress after hearing it. Aaron kept smiling and singing Zip-a-dee-doo-dah, zip-a-dee-ay.
PS: I’m not alone in scratching my head see here.