Hernandez Judge Garsh’s Confusion

justice weepsI while ago I wrote about the mistake Judge Susan Garsh made in keeping out the most important evidence in the Hernandez case which was the text messages from Odin Llyod to his sister Shaquilla that arrived within minutes of his murder. His text said that he was with “NFL.” That was their name for Aaron Hernandez who he was with along with two other gangster-type friends of Hernandez.

It is difficult to get the full feel of a case if you are not in the courtroom. But from the little I can gather it seems the defense if trying to raise doubt in the minds of the jurors about Hernandez’s whereabouts at the time of the murder. They have questioned the handling of the evidence at the scene of the crime and other matters that point to Hernandez’s presence there. Unless they are asking questions just for the hell of it then one has to assume that there is a purpose behind their cross-examination which is to suggest to the jury there is no showing Hernandez was at the place Llyod was murdered.

If they are pursuing that tactic it will be a shame. It is clear to most who have followed the case is that Hernandez was present with Llyod at the time he was murdered. That is because we have all read about the content of the text Shaquilla’s brother wrote to her moments before his murder. Because the judge won’t let Llyod’s sister testify to the contents of the text the jury will not be privy to that information. It will have to decide the case like the blind man who is asked to describe an elephant after touching its tail.

Last Friday Jude Garsh ruled that not only could Shaquilla not testify to the content of the text messages she could not even say that she got a text from her brother that night. Then the judge came into court on Monday and said she had thought over her ruling over the weekend. She now says that Shaquilla can say she got a text from her brother a few minutes before he was murdered but can’t say what was in the text nor can she say how she felt after receiving the text.

Can you think of a more meaningless ruling than that?  If the jury can’t learn of the contents what good is it telling them that the text exists? How does it add to the jurors ability to come up with  a proper decision?

Judge Garsh is excluding the content because of the hearsay rule. But the hearsay rule concerns the unreliability of out of court statements. Here, there is no question about the text’s reliability.

The problem with Garsh doing this is the Commonwealth has no recourse. If she let it into evidence which she should, then if her ruling is wrong then Hernandez could get another trial if he is convicted. If he is acquitted, the Commonwealth has no right to appeal so the issue of whether Judge Garsh was right in excluding that evidence will never be determined.

There are judges who when uncertain of the rationale behind the admissibility of evidence will always favor a defendant knowing that the ruling will never be an issue.  Fortunately there are enough judges who understand the evidence so they don’t have that fear or go with their gut knowing that in close cases if they make a mistake against a defendant he can have their ruling reviewed and changed but if they go against the Commonwealth that ends the matter.

How can anyone say this is a fair trial. Llyod’s message, at least as far as I interpret it, to his sister meant “look, sis, if something happens to me you’ll know who did it.”  Judge Garsh doesn’t think that is something the jury should know. Do you agree?

To show how absurd Hernandez’s lawyers are here’s what is reported: “Defense lawyer James Sultan objected, arguing that telling jurors the texts were sent without detailing the content “frankly invites the jury to speculate what was in those texts.” While the actual content was “innocuous,” Sultan said, jurors may think Lloyd texted words to the effect of “help. I’m being kidnapped.”  Do you believe Sultan would objecting if the content is as he says innocuous?

If the judge were wise she would have agreed with Lawyer Sultan. She would have said. “I don’t want the jury speculating so I’ll let the text into evidence.”  I’m sure Sultan would have quickly changed his mind on how innocuous the texts were.

Unfortunately the unsteadiness in her rulings has left somewhat of a mess.

6 thoughts on “Hernandez Judge Garsh’s Confusion

  1. Maybe I am missing something here, but why can’t Mr. Lloyd’s texts (and replies) themselves simply be presented into evidence? Is it possible that they did not leave an electronic trail? I would think that the transcript of any communication by a murder victim shortly prior to their demise would be admissible. The recent revelations in the IRS scandal show that virtually any electronic communication made in this day and age is likely recoverable, Every actual conversations perhaps not, but voice and test message it would appear very likely.

    1. Hank:

      There is a clear electronic trail. You are correct in thinking that they should be admissible but the judge decided that she did not think they should come in. I’ve suggested she is wrong in her decision since this evidence is quite critical. I’m at a loss to understand how the jury can make a right decision having had kept from them the victim’s statement within minutes of his death.

  2. In what protective Community was this Judge Garsh a product of ? Today she instructed the jury that someone who has guns under their mattresses , in their stocking draws, in their pants, spent shells found in their rented vans are to deemed not to have any Criminal Propensites. Welcome to the real world! God help us all!

    1. Jim:

      Absolutely right. In her mind if you see a guy walking in a bank with a ski mask on brandishing an AK47 you cannot assume he is going to rob the bank; he might be making a deposit. First of all she shouldn’t be instructing the jury anything about it. It’s up to the jurors to decide what it means that he is carrying all these guns. They shouldn’t be told they can’t infer what you, I and anyone with the slightest bit of life experiences knows. At Whitey’s trial when they dropped a table full of guns in front of the jury if the judge instructed like that she’d have been laughed out of the courtroom. It is up to the lawyer’s to argue the significance of the guns. I’ve written before that the judge is over her head and bending backwards to help Hernandez. It seems she continues to do so because she really has a little grasp of evidence and a jury’s role.

  3. I agree with your analysis, but I think this is better than nothing. The judge no doubt consulted with one or more of her colleagues before changing course. But doing a 180 was just too much for her, evidently.

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