“Stop,” Judge Saul said. “Counselor, are you planning to try to enter Mrs. Simmons’s petition as an exhibit with this witness on the stand?”
“Yes, Your Honor.”
“He can’t,” I said. “That petition is filled with hearsay.”
“Court proceedings are an exception to the hearsay rule,” Cutler said.
“And you cannot try to shroud Erin Luke’s statements as an exception to the rule simply because they were written on a bogus petition filed for the sole purpose of trying to get around the hearsay rule. It’s ridiculous.”
“Here’s what I’m going to do,” Judge Saul said. “We’re not going to get into the status of this other legal proceeding. If you want to call Erin Luke …”
“Erin Simmons, Your Honor,” Cutler interjected.
“Fine,” she said. “Erin Simmons. If you want to put her on the stand and ask her about her relationship with her daughter, you certainly can. But I agree with Ms. Brent that you can’t try to recharacterize her statements as non-hearsay because of the format they’re in.”
Judge Saul made a shooing gesture, directing us back to our ready positions. I went to my table. Cutler went back to the lectern. It took him a moment to regroup as the judge asked the jury to disregard Cutler’s last question.
“Ms. Simmons,” he said. “I’d like to ask you some questions about your online activity. Can you remind me when you first joined the cold case crime forum you described on direct?”
“It was about a year ago, now.”
“You claim you were just researching information about your aunt’s alleged murder case?”
“That’s correct.”
“You understand that your phone records, computer usage, and online activity were submitted to me during the discovery phase of this trial?”
“I know I gave the police access to all of that,” she said.
“I’d like to direct your attention to some screenshots, if I may.” Cutler marked a series of screenshots from the cold case forum for identification. I’d already stipulated to the entry of many of them.
“Ms. Simmons, I just want to make sure I’m being accurate. Which of these posts are yours?”
Hayden pointed to a post on the screen. Cutler highlighted it.
“For the record,” he said. “You’re pointing to an entry authored by a Shimmer417. Is that your handle on the forum?”
“Yes.”
“I’m curious. What’s the significance of Shimmer417?”
“It’s just … Shimmer is kind of a mashup of my name. H for Hayden. Simmer is kind of like Simmons.”
“And the number?”
“April 17th was my aunt’s birthday.”
“Got it. Clever. Do you recall how many times you logged on to this forum after you joined it last year?”
“Not off the top of my head, no.”
“Well, do you at least recall how frequently you logged on once you found it?”
“I don’t know specifically. I know it was a lot. Especially in the beginning.”
“It was every day, multiple times a day, wasn’t it?”
“Yes.”
