Turtle and Tourist Photos Were Insufficient to Authenticate Texts in Criminal Case

The Maryland Daily Record reports that prosecutors have been barred from using texts and other messages sent by defendant’s spouse in a case alleging fraud and embezzlement.  Bryan R. Sears, McGrath fraud case: Prosecutors can’t use alleged vacation texts, judge rules (thedailyrecord.com)(Oct. 11, 2022).

The paper reports that the trial judge had “serious questions about the trustworthiness of messages sent back and forth to the father of Laura Bruner, McGrath’s wife, during alleged vacations to Italy and Florida.”

“Do you have anything to tell me or any proof of her relationship with her father?” Boardman asked prosecutors. “Whether or not it was so inherently close that she would never fib or stretch the truth in these text messages to him?”

Assistant U.S Attorney Joyce McDonald said the texts were sent and photos taken while on vacations rather than working. Included in those messages are a number of photos of turtles in Florida, as well as at various tourist sites in Italy.

“Turtles are interesting to everyone,” Boardman deadpanned in a moment of levity. “I don’t understand why that’s peculiar.”

The article continues:

Prosecutors seized the messages from [defendant’s wife] Bruner during the investigation into McGrath. The messages are time stamped and corroborated by photographs that “L.B.” — later identified as Laura Bruner — took during the vacations, according to a motion.

Joseph Murtha, McGrath’s attorney, argued that allowing the texts and photos to be introduced without the benefit of Bruner’s testimony would put pressure on McGrath to take the stand to explain. He said computers and phones taken from McGrath by prosecutors during the investigation should offer much of the same proof.

The judge agreed with defense counsel, “saying that without the benefit of cross examination it would be difficult to know if Bruner was lying to her father or attempting to hide, as an example, that McGrath was a ‘workaholic.’”  The judge is reported to have said:

“Essentially the government is seeking to admit them to show that Mr. McGrath and his then-girlfriend, now wife, were busy vacationing and doing touristy things such as going to the Vatican, the Colosseum, the Spanish Steps, looking at turtles, as opposed to him working,” Boardman said, adding that the government has other evidence to possibly prove its case.

“More importantly, I am required to ensure that there are circumstantial guarantees of trustworthiness, and I think that’s where this evidence falters,” she said.

This blog is based on The Daily Record article.[1]

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[1] The Court’s decision is not available on Westlaw.  Docket entry 58 on Pacer states: “PAPERLESS ORDER granting in part and denying in part consistent with the discussion on the record in court today 35 Motion in Limine as to Roy C. McGrath (1); granting as unopposed 36 Motion in Limine as to Roy C. McGrath (1); denying 42 Motion in Limine as to Roy C. McGrath (1) for the reasons stated on the record in open court today; and granting as unopposed 44 Motion in Limine as to Roy C. McGrath (1). ECF 46 remains pending. Signed by Judge Deborah L. Boardman on 10/11/2022. (lmys, Chambers) (Entered: 10/11/2022).”