In a former blog post, I blogged about how in December the Bristol County Superior Court judge in Aaron Hernandez’s first-degree murder trial ruled that the text messages exchanged between Odin Lloyd and his sister, Shaquilla Thibou, minutes before he was killed cannot be shown to the jury as evidence. Last Friday, February 20th, Judge Garsh ruled that Thibou could not mention the text messages at all if the Commonwealth called her as a witness. Over the weekend, however, Judge Garsh had “given more thought” to the issue and decided Monday, February 23rd, that the text messages could be mentioned to corroborate phone records showing that Lloyd and Thibou had been in contact those early morning hours of Lloyd’s death.
Let me be clear that Judge Garsh’s ruling in December and her ruling Monday are different issues, although they seem very similar. The issue in December was whether the text messages could be shown to the jury as documentary evidence. This requires that the evidence be “authenticated,” which means that the evidence’s proponent must prove that the evidence is what it claims to be. For example, the text messages could be authenticated by Thibou testifying that the messages on her cell phone screen are in fact the messages she exchanged with Lloyd the morning he was killed. The ruling today was that Thibou could orally reference the text messages in her testimony – the text messages will still not be physically shown to the jury.
Judge Garsh limited the purpose for which the text messages could be brought in. Thibou is allowed to reference that she and her brother had been in contact the night of his murder, and that text messages were exchanged between them for the purpose of corroborating phone records that have been already been brought in during this trial. I’m assuming the phone records are just a printed out time stamp showing that between 3:00am – 3:30am text messages were exchanged between Thibou’s cell phone number and her brother’s cell phone number. The content of those messages cannot be referenced. The content is hearsay. Thibou’s emotional reaction to those text messages also cannot be referenced by her when she is on the stand.
Prosecutors theorize that those text messages from Lloyd to his sister were sent in fear when he was trapped in the back seat of Aaron Hernandez’s car minutes before he was shot and killed. Defense counsel argues that telling the jury that texts were exchanged without detailing the content may lead the jurors to speculate about what was in those texts – they may speculate that Lloyd was texting his sister that he was being kidnapped and needed help. It is hard to tell from reading the texts what actually was going on – they aren’t very revealing. Lloyd lets Thibou know he’s with “NFL” (assumed to be Hernandez), and at one point Thibou responds “LOL.” Lloyd and Hernandez were acquaintances, or possibly even friends, at the time of Lloyd’s murder.
It seems that the prosecutors are really off on their theory. Just think about it from a common sense standpoint. If you were being kidnapped by someone, would you send such a casual text to your sister? If it were me, I’d text her more urgently: “I AM BEING KIDNAPPED BY AARON HERNANDEZ! CALL THE POLICE! I’M NEAR NORTH ATTLEBORO INDUSTRIAL PARK.” I would probably text that to everyone in my contacts.
I think defense counsel is right in thinking that the jury will speculate as to the content of those messages. They will definitely have to do some damage control there. If the content of the text messages were revealed, however, I think it would come out as a wash for both sides. The texts’ content shows that Lloyd was with Hernandez that morning, which is damaging for the defense, but I believe it also shows he wasn’t in fear, which is damaging for the prosecution.
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