Law Life: YouTube video sinks defense in child murder case

Pat Murphy, The Daily Record Newswire

A Delaware man accused of murdering his infant daughter wanted jurors to believe that he was absolutely devastated by what he claimed was a tragic accident.

Unfortunately, the “grieving” father made the mistake of posting a video on YouTube showing him yukking it up as a participant in a silly radio contest.

This month, the Delaware Supreme Court ruled that prosecutors were entitled to introduce the video at trial to rebut the father’s claim that he was emotionally shattered by the death of his little girl.

Jason R. Gallaway’s journey to a life in prison began on Dec. 2, 2010. At 2:34 p.m., the Seaford Police Department received an emergency call from Gallaway that his three-month-old daughter, Marissa, was not breathing. Emergency responders were able to resuscitate Marissa and she was taken to a hospital to be treated for severe head injuries. Marissa died at the hospital on Dec. 5.

Police arrested Gallaway the same day and he was charged with murder by abuse or neglect.

The medical evidence indicated that Marissa had sustained various injuries, including a skull fracture and bruising to her chin, jaw and forehead. Marissa had also suffered severe brain damage. Further, there was evidence of trauma to the baby’s eyes and abdomen.

Sadder still, Marissa apparently had previously suffered fractures to a rib and shoulder which were in the process of healing at the time of her death.

According to court records, Gallaway told police that Marissa’s fatal head injuries occurred when she fell from his grasp while he was performing back and neck stretching exercises.

A seven-day jury trial was held in Sussex County Superior Court in January 2012. The state presented multiple medical experts. The state’s experts all testified that Marissa’s injuries were not indicative of a short fall and that the little girl had died from non-accidental trauma.

Gallaway testified in his own defense, sticking to his story that he had accidentally dropped Marissa during stretching exercises. Incredibly, Gallaway tried to explain Marissa’s long list of injuries by testifying that he was clumsy and often dropped Marissa or accidentally bumped her into walls.

Critically, Gallaway didn’t have any experts of his own to rebut the prosecution’s medical experts.

In a thinly veiled attempt to garner the sympathy of the jury, during direct examination Gallaway made repeated references to the fact that he was on suicide watch in prison, asserting that he was distraught because he missed his wife and Marissa.

On cross examination, Gallaway proclaimed, “I miss [Marissa] every day. And every day I think about killing myself, but I can’t leave [my wife]. I miss my daughter. You have no idea how much I miss my daughter.”

However, there was a problem with the portrait of the grieving father that Gallaway attempted to paint. Seven months after Marissa’s death and while out on bail awaiting trial, Gallaway participated in a radio contest by filming himself performing a stunt. Gallaway posted the video, titled “When idiots try to win a contest,” on YouTube.

The stupid stunt involved taking a cotton swab and rubbing Listerine in his nostrils. As described by prosecutors, the YouTube video showed Gallaway making several attempts at the stunt, laughing and having a good time. Creepily, Galloway’s wife was laughing in the background.

Prosecutors wanted to introduce the YouTube video at trial to rebut Gallaway’s testimony that he was suicidal and broken up by Marissa’s death.

After viewing the video outside the presence of the jury, the trial judge decided to allow it as evidence. The judge overruled the objections of Gallaway’s lawyer that the YouTube video was not relevant and unfairly prejudicial.

Not surprisingly, after seeing the video and hearing other evidence of guilt, the jury found Gallaway guilty of murder by abuse. The trial judge duly sentenced Gallaway to life imprisonment without the possibility of probation or parole.

Gallaway’s main contention on appeal was that the YouTube video never should have been shown to the jury.

But the Delaware Supreme Court found no reason to disturb either the trial judge’s decision to admit the video or Gallaway’s conviction.

On the issue of relevance, the court had no qualms with the trial judge’s analysis:

The trial judge ruled that when Gallaway testified that he was depressed and suicidal every day, he put the issue of his “post-incident” demeanor at issue. The trial judge watched the video and determined that, even though it was only five minutes long, it would provide the jury with one probative example of Gallaway’s “post-incident” demeanor that was inconsistent with his testimony. Therefore, the trial judge concluded that it was relevant rebuttal evidence.

Likewise, the state high court found that Galloway couldn’t complain of unfair prejudice because he had opened the door to the YouTube evidence through his own testimony.

“Gallaway testified that he was always depressed and suicidal,” the court explained. “The State sought to undermine his credibility on that issue by introducing the YouTube video showing Gallaway laughing and engaging in childish pranks. The trial judge reviewed the video and concluded that its probative value outweighed the danger of unfair prejudice.”

Of course, in upholding Gallaway’s conviction, the court also took into account the overwhelming evidence of guilt.

“The record reflects that the trial judge’s discretionary evidentiary rulings were not clearly erroneous and the uncontroverted expert, medical testimony introduced by the State demonstrates that no substantial rights were adversely impacted by the introduction of the YouTube video,” the court said.

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