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.
The judge ruled that the subjective nature of the text’s cannot be viewed objectively. Text messages do not show emotion nor do they convey properly, the state of mind of the deceased. The jury would be making assumptions based on words and words alone.
Eric:
That’s the jury’s job to make assumptions based on the evidence before it. The words are not alone but are part of the ongoing circumstances involved in the murder.
I’m not quite sure what “subjective nature of the text’s cannot be viewed objectively” is supposed to mean. Don’t we do that in our everyday lives in dealing with people. The judge is not supposed to be the fact finder; that’s the job of the jury. If you’re of the school that a text written by a victim within a handful of minutes before his death has no role in determining what happened to him n a murder prosecution I have to suggest I disagree with you.
Matt, I feel Sam Sutter knows that this trial is not going the way he anticipated. The timeline of the playoffs and hernandez’s trial will make an interesting news saga.
Doubting:
I read about some of the happenings in Fall River and will get out a post on it later today since it is election day there.
“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.”
So, is it right to admit the evidence and favor the prosecution, or not to admit the evidence and favor the defense? Do you really want the trial jury to see questionable evidence and sort it out as they have better judgement in these matters than the judge? Really?
Ed:
Unfortunately for defendants lots of evidence in favor of a prosecutor is admitted into evidence. That’s how they get convictions. No one is suggesting the defense does not have the same opportunity. What we are talking about is not questionable evidence but texts sent by a murder victim immediately before he was murdered. Why would they not be heard by a jury? A trial is a search for the truth. What is questionable about the texts? The judge decided the texts indicate one thing; the jury might believe they indicate another. The jury is the ultimate fact finder in a case that is why it is sitting there. We are talking about material and relevant evidence that bears on the commission of the crime. Of course I want the jury to hear it since there is no reason why it shouldn’t.
What’s the motive here? Did Hernandez and his crew think this guy to be an informer? What I’ve read about motive seems vague and inconsequential , even for these guys.
Dan:
It could have been a minor beef over anything since they seemed to have spent their evening in the company of booze and drugs which means it’d take very little to set them off.
Matt- The city where Hernandez is being prosecuted in Bristol County has some twist to it. The Sutter fella is running for mayor in a recall election, seems to be abandoning his trial of the century, since Lizzie Borden. I would suggest anyone looking for some bizarre circumstances, Google Fall River Mayor Flanagan and Sam Sutter, Recall election. In my opinion Sam Sutter is man abandoning a potentially sinking ship.
Doubting:
It sounds like he’s having trouble adjusting – didn’t he dismiss some charges against some greens and say he was going to NY City for earth day. Whose running the show in the DA’s office if he’s looking to jump may be a good question. Can’t figure out why they weren’t more proactive in the choice of the judge to sit or not appealing some of the evidentiary rulings.
Matt, You are correct about the greenies. Think about this, Sutter is running in a recall election against a man his office is prosecuting for pulling a pistol on a rookie Twenty-something City Councilor for signing the recall petition?? This is a Shit show and I actually think Sutter is going to be the District Attorney for Bristol County while holding office as mayor of Fall River,Ma. The pistol case got farmed out to a “special prosecutor” named Connolly. September 7,2014 and still no results from the investigation…Something stinks in The River and it isn’t The Chourico.
Can’t the prosecution appeal this ruling to the single Justice of the SJC? Isn’t there an exception to the hearsay rule that a declaration of a deceased person made in good faith with personal knowledge of an event is admissible? Text messages even though hearsay of a deceased person stating where he was and who he is with would seem to fall into this category.
NC:
The prosecution can appeal the ruling. It involves a critical piece of evidence. It should have appealed some of the rulings on the searches. I’m not sure why it is sitting on its hands. The texts are important pieces of evidence, too important to lose without a fight I would think.
I suggest what is necessary for a judge to do is to figure out the purpose of the evidence and apply the rules to it. For instance, leading questions are not supposed to be asked on direct testimony but experienced lawyers will let them go to speed up the case if they don’t involve critical issues. So should a judge let them go if they relate to side issues. Some judges don’t recognized this.
Judge Garsh seems to have no idea about hearsay. Hearsay is inadmissible because it is unreliable (except in federal conspiracy cases where it is welcomed as the sun in May) because one person is telling what another told him so his ability to remember and repeat it back accurately may be an issue and there is no opportunity to cross-examine the other person. If I testified you told me that Juliet ran a red light when counsel got up to question me she would not be able to go beyond the statement. She couldn’t ask where you where when you saw her do it, what had you been looking at before, had you been drinking and lots of other questions about your credibility to see whether what you said should be believed.
As you point out there are exceptions to the hearsay rule. Lots of reasons are given to let hearsay statements into evidence such as the item is a business record. Those can come in because there is little question relative to their reliability and even though you can’t cross examine the person who made the entry. That means to me that the judge should look at what is being offered to see if it is reliable and whether what is stated could be substantially changed by a good cross-examination. Here the reliability can’t be questioned nor could cross-examination change what has been said. There really was no reason to keep it out.