Against his own inclinations, a Sacramento judge is likely to find himself on the cutting edge of California case law when he decides whether to admit portions of a suicide note into a local murder trial.
Superior Court Judge Michael W. Sweet said from the bench in the Davis sweethearts murder case that even though "a trial is about the truth, I have to fit it into the legal parameters that already exist not make new law."
But Sweet may have no choice but to establish a new precedent when he rules Jan. 5 on the admissibility of a suicide note written by the brother of defendant Richard Hirschfield.
In it, the late Joseph Hirschfield places himself at the scene of the 1980 stabbing deaths of UC Davis students John Riggins and Sabrina Gonsalves and fingers his brother as their murderer.
Police and prosecutors hope Joseph Hirschfield's presence at the murder scene rubs off on his brother, and Deputy District Attorney Dawn Bladet is fighting to get the note into evidence minus the part where Joseph Hirschfield says his brother murdered the couple, because she knows that portion would never make it into court.
On the defense side, attorneys Linda Parisi and Ken Schaller are battling just as hard to keep the note out on grounds it is inadmissible hearsay.
There's some case law for Sweet to consider before he makes his decision. Two cases arise out of suicides, one in Los Angeles and another in Flint, Mich. Nobody killed themselves in a third case, but it's the big dog on the issue a 2004 U.S. Supreme Court decision in a Washington state murder conviction that now controls the admissibility of hearsay evidence in courthouses from coast to coast.
Throughout a Dec. 9 airing of Joseph Hirschfield's note, Bladet said there is no case law on the issues the letter raises. Parisi argued that the so-called Kincaid civil case out of Los Angeles and the Crawford matter from Washington state both should keep the letter out of the trial. Sweet struggled with the issue and asked both sides to submit briefs on it before they return to his courtroom next month.
UC Davis law professor Miguel A. Mendez, an expert on evidence and criminal law, said Sweet's decision will probably come down to the judge's determination of whether the note represents a declaration by Joseph Hirschfield "against penal interest." That concept is a long-held exception to the hearsay rule that makes some such statements admissible.
In California's evidence code, such statements can be admitted only if the person who made it is unavailable, obviously the case with the late Joseph Hirschfield. The statement also must be "so far contrary to the declarant's pecuniary or proprietary interest" that he could be subject to criminal or civil liability, or make him such "an object of hatred, ridicule or social disgrace" that he would be crazy to lie about it.
Two hours of thrashing argument before Sweet earlier this month suggested there are enough wrinkles in the Joseph Hirschfield note that no matter what the judge does, it will create a precedent.
"There's probably nothing on point," Mendez said, "which is why this is being contested."
DNA hit led to defendant
Riggins and Gonsalves, both 18, were kidnapped in Davis on the foggy night of Dec. 20, 1980, after helping produce a performance of "The Nutcracker." Their bodies were discovered two days later 35 miles to the east, in a ravine near Lake Natoma.
With the case still unsolved, Sacramento County sheriff's detectives got a cold DNA hit in 2002 that directed them to Richard Hirschfield, now 62, who was in prison on a Washington state sex crime. The renewed investigation took them to Joseph Hirschfield, who was living in Beavercreek, Ore.
The day after their Nov. 19, 2002, visit, Joseph Hirschfield hosed exhaust into his car, rolled up the windows and breathed himself to death.
Next to his body, they found a note to his wife in which he said, "I've been living with this horror for 20 years."
After identifying his brother as the "sweethearts" killer, Joseph Hirschfield wrote, "I was there." He said, "I didn't kill anyone, but my DNA is there" and "I'm 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."
It took about two more years for authorities in Sacramento to file the case against Richard Hirschfield. Bogged down by continued delays, the case now appears ready for trial, although a few pretrial motions need to be resolved, including the admissibility of the suicide note.
'Multiple vehicles' in killings?
Prosecutor Bladet said the note is important because Joseph Hirschfield lived in a trailer park not far from where the bodies were found.
At the Dec. 9 hearing, she said, "Indications are that more than one person did it" and that "multiple vehicles" were involved in the killings the victims' van, which was used to take them from Davis to the ravine near Lake Natoma, and a second car that witnesses saw following the van that may have been a getaway vehicle.
Had Joseph Hirschfield not killed himself, "he would have been charged as an aider and abettor," Bladet said. She said exclusion of the "highly relevant" note would be "a miscarriage of justice."
Parisi argued the note is inadmissible because it implicates a "non-declarant" in this case Richard Hirschfield by someone who can't be cross-examined. She contends the killings were carried out by four other people who were charged by the Yolo County District Attorney's Office but later released, when DNA recovered from a semen-stained blanket in the victims' van didn't match those defendants.
She said the Kincaid and Crawford cases should give Sweet all the ammunition he needs to exclude the note. In the first case, California's 2nd District Court of Appeal held the hearsay exception did not apply to a woman's suicide note about a stepfather whom she claimed sexually abused her. The panel found the note made the woman a sympathetic figure and did not cast her in a negative social light.
The federal Crawford case involved a wife who undermined her husband's self-defense claim in a stabbing murder by suggesting the victim was unarmed when he was killed. At trial, she invoked her marital privilege not to testify, but the trial court allowed jurors to hear her statement to police. The U.S. Supreme Court reversed the decision, saying such a "testimonial" statement could not be admitted as a hearsay exception because the woman was available but could not be cross-examined.
A Michigan murder case that came under review on a federal writ in Miller v. Stovall fastened the issue of suicide notes to the Crawford decision. In that one, a man conspired with his lover to murder her husband. When she later broke off her relationship with the killer, he shot himself to death but not before he wrote a suicide note that detailed her role in the conspiracy. The trial court admitted the note and a jury convicted her. But she obtained a federal writ to revisit the note's admissibility, which the 6th Circuit upheld.
Looking at some of these cases and a couple others at the Dec. 9 hearing in the Hirschfield matter, Judge Sweet mused from the bench that it looked like he would decide this one with no precedent to guide him.
When court closes Jan. 5, there might be precedent for the next judge.