Key rulings due in UCD ‘sweethearts’ murder case
SACRAMENTO — Pretrial hearings in the UC Davis “sweethearts” murder case continue this week with a judge’s much-anticipated ruling on whether to admit what could be a crucial piece of evidence: a suicide note penned by the defendant’s own brother.
Joseph Hirschfield took his own life on Nov. 20, 2002, a day after Sacramento County sheriff’s detectives confronted him with the news that his brother Richard allegedly had been linked by DNA to the December 1980 kidnap-murders of UCD students John Riggins and Sabrina Gonsalves.
“I have been living with this horror for 20 years,” Joseph Hirschfield wrote in a two-page note to his wife, Lana, as he breathed in carbon monoxide fumes in a car near his Oregon home. “Richard did commit those murders but I was there and I didn’t kill anyone but my DNA is still there.”
“I am still just as guilty and the cops are looking for the second person involved and it won’t take long for them to be back,” the note says.
Joseph Hirschfield was living in Rancho Cordova at the time of the murders, not far from the ravine where Riggins and Gonsalves’ bodies were found.
His note was the subject of intense debate last month in a Sacramento courtroom, where the prosecuting attorney in the Hirschfield case is fighting to get its contents into the jury’s hands. Hirschfield’s lawyers say the note is inadmissible hearsay and should be excluded, since its author can’t be called as a witness.
From the bench, Sacramento Superior Court Judge Michael W. Sweet said the note “probably” is not admissible as either a dying declaration or as a declaration against penal interest, both of which would lend an element of credibility to Joseph Hirschfield’s words.
Sweet then asked the attorneys to submit additional briefs on a related but lesser-known portion of the California evidence code relating to declarations against social interest. Arguments and a ruling are slated for Monday.
The obscure law sidesteps the hearsay rule “if the declarant is unavailable as a witness and the statement, when made … created such a risk of making him an object of hatred, ridicule or social disgrace in the community, that a reasonable man in his position would not have made the statement unless he believed it to be true,” the code states.
The Legislature “obviously intended it to have the same force as the other parts of that statute,” Sweet said at the Dec. 9 court hearing.
“It’s a really interesting issue,” said Edward Imwinkelried, a professor at UC Davis’ King Hall School of Law, who in a 1996 Southern California Law Review article called the social interest exception “the most neglected hearsay exception in modern hearsay law.”
“The statute is constantly overlooked,” Imwinkelried said in an interview last week, noting that California is one of only 11 states that recognizes social interest in its evidence code.
When making his decision on Monday, Sweet will have to perform a two-step analysis, Imwinkelried said. First, he must reconstruct the declarant’s — Joseph Hirschfield’s — state of mind when he penned the suicide note, as well as the interests that were both served and disserved by its statements.
Secondly, Sweet must make “a very evaluative judgment” whether a reasonable person in the declarant’s position would have made the statement unless he believed it to be true.
And that’s one of many issues on which attorneys in the Richard Hirschfield case disagree.
In court documents, Deputy District Attorney Dawn Bladet argues that the suicide note not only qualifies for the social interest exception, but also allows for the admission of the note in its entirety — not just those portions pertaining to Joseph Hirschfield alone.
“The words he wrote identify him to his wife as a participant in a brutal sexually motivated double murder and kidnap,” Bladet wrote. “This is not the kind of revelation one would make to his wife and child and have his lasting legacy to them, his family and his community be one of infamy for his role in this horrific crime.”
The fact that Joseph Hirschfield killed himself a day after his meeting with Sacramento homicide detectives weigh in favor of the note’s truthfulness and admissibility, Bladet added.
Not so, say Richard Hirschfield’s defense attorneys, who argue that Joseph Hirschfield self-servingly pinned the murders on his brother by minimizing his own role in the crimes.
“The note was written to paint the declarant in the most favorable light and shift the blame to his estranged brother,” lawyers Linda Parisi and Assistant Public Defender Ken Schaller wrote in their motion to exclude the note.
They also say that Sweet need only look at prior case law to make his decision — namely, Kincaid v. Kincaid, a wrongful-death case in which a California appellate court ruled that a suicide note containing allegations that the victim’s stepfather had raped her produced no evidence of social disgrace, and rather painted her in a sympathetic light.
“The appellate courts have concluded that declarations against penal interest and social interests … die with the person,” the defense wrote.
Jury selection in the “sweethearts” trial is tentatively set for late March. By then, nearly eight years will have passed since Hirschfield, now 62, was formally charged with the Riggins/Gonsalves murders.
— Reach Lauren Keene at lkeene@davisenterprise.net or (530) 747-8048. Follow her on Twitter @laurenkeene
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Posted by Lauren Keene
on Jan 21 2012.
Last Login: Mon 21 May 2012 04:26:23 PM PDT
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