#ToryLanez OMG, Tory Lanez May Have a Chance
This may upset a lot of people, but I call it like I see it. I was not expecting to arrive at this conclusion when I began my review.
This post is not about whether Tory Lanez is innocent or not; it is not about whether Tory Lanez shot Meg or not; and it is not about whether Tory Lanez shot at Meg not. This post is not about what happened between Tory Lanez, Meg, and Ms. Harris that night. I was not there; so, I don't know what happened. This post is about the court proceedings, specifically, the trial.
In my opinion, there were errors made at trial that I find significant. This does not mean that there was a conspiracy, that someone or some people were paid off and all that nonsense. The fact that some errors were made (imho) does not automatically mean that his convictions will be reversed. But I think he has a chance at possibly getting a new trial.
Notable Errors:
1. Playing Ms. Kelsey Harris's out of court statements to the jury. Prior to trial Ms. Harris made out of court statements to the police which were recorded. At trial, Ms. Harris invoked her Fifth Amendment Right against self-incrimination and refused to testify. Legally, her invocation of her Fifth Amendment right rendered her unavailable. Under the Rules of Evidence, the prior statements of a now unavailable witness can be used at trial. However, after pleading the Fifth, the prosecution granted immunity to Ms. Harris, and she testified. The grant of immunity meant that Mr. Harris was no longer unavailable. Therefore, there was no basis under the rules of evidence to play to the jury the prior out of court statements made by Harris. She was available; the statements were not being used to refresh her recollection; the statements were not being used to impeach her on prior inconsistent statements; and the statements were not being used as prior consistent statements to counter an accusation of bias or recent fabrication. As such, in my view, the judge committed an error in permitting the govt to introduce those out of court statements at trial.
*** Note: Ms. Harris testified that she didn't recall a lot of things at trial. Her out of court statements could be used to refresh her recollection – if the proper foundation was laid. I've not read the transcripts to determine whether the proper foundation was laid. Such foundation must include asking the witness (who does not recall) whether anything or a particular thing can refresh her recollection about an event or subject. In this case, Ms. Harris should've been asked whether her previous statements to the police would refresh her recollection about the events. If she said yes, then the statements can be played to her alone. After the statement has been played to her, she must be asked whether her memory has now been refreshed. If she said her memory was not refreshed, then that's the end of that line of inquiry. If she said her memory was refreshed, she can then be questioned about the event (which she didn't previously recall, and about which her memory has now been refreshed). During this questioning, she has to testify from her memory and not from a written or audio statement.
2. Admission of the Instagram reply post. In my opinion, it was an error to admit at trial a post from the Instagram handle
@torylanez. This is hearsay evidence.
The context of the Instagram post is as follows: @LilaJumaDeDaBeat posted: “This goofy a** n**** say he ain’t shoot [Meg] and they literally have matched the bullets from his gun to the ones in her foot.” The posted was reposted by
@theshaderoom. Below the repost,
@spliffkaay commented as follows: “People saying Kelsey shot Meg.” The account
@torylanez responded: “That’s not true.”
The entire thread above was admitted into evidence. None of the individuals operating those accounts testified at trial and their posts were not authenticated. Also, their statements are inadmissible multi-level hearsay.
The govt focused on the statement from the
@torylanez account. As a general matter, all hearsay statements are inadmissible unless they fall under a hearsay exception. Significantly, the burden is on the proponent of the evidence to establish it's admissibility. In this case, the government introduced that post from
@torylanez as implying that the gun belonged to Tory Lanez and that Ms. Harris didn't shoot Meg. The government attributed this post to Tory Lanez. However, Tory Lanez introduced a sworn statement by an individual named Joshua Farias stating that he made the post and did so without consultation or authorization from Tory Lanez. To me, once the defense introduced that sworn statement, the burden shifted back to the govt to show that the post was indeed made by Tory Lanez rather than Mr. Farias. The government can establish this by presenting evidence of Tory Lanez's location, Mr. Farias' location, the phone from which the post was made, etc. In my opinion, the government, as the proponents of this hearsay evidence did not carry their burden of showing that the post was indeed made by Tory Lanez. Thus, that statement should've been inadmissible.
*** Admitting this post into evidence is important because it is deemed an admission of a party opponent. Admissions of a party opponent are so powerful that under the federal rules, for instance, it is classified as nonhearsay. Thus, when evidence was presented showing that Tory Lanez did not make that post, the government needed to do much more to establish it's admissibility as Tory Lanez's statement.
3. Insinuation/Accusation of Bribery. In my opinion, it can be argued that the prosecution, in closing arguments, insinuated that Torey Lanez bribed Ms. Harris and/or Mr. Edison. This arguably constitutes prosecutorial misconduct because no evidence was presented that Tory Lanez actually bribed Ms. Harris, and there was no evidence presented from which an inference of actual bribery can be drawn. The problem for Tory Lanez is that it appears his trial lawyers did not object and may have waived this issue. His lawyers on appeal are arguing that the failure to object constitutes ineffective assistance of counsel. Tough (but not impossible) argument to win. Here is the pertinent portion of the government's closing argument:
“We saw Kelsey in court. And something happened to Kelsey. Obvious, something happened to Kelsey between that September statement in 2022 and her testimony at trial. Something spooked her. Somebody got to her. Maybe somebody -- maybe she took one of those bribes. Something happen to her that compromised her testimony.... We heard Tory Lanez attempted to bribe and silence Kelsey. And we, in fact, saw that Kelsey had been compromised in this very courtroom. Where is Edison (the driver?) You cannot speculate about where he is, okay? That’s
something that I told you you’d hear from that we didn’t deliver on.”
4. The other possible error relates to the admission of Tory Lanez rap lyrics and music videos and tattoos for the truth of the matter asserted. Ironically, a new California law took effect after Tory Lanez's trial and limits the admissibility of artistic expressions at criminal trials. Even though this new law does not apply to Tory Lanez's case, as a matter of legal philosophy I am opposed to the admission of musical lyrics at trial. These lyrics do not have hallmarks of truthfulness or reliability that are associated with other hearsay exceptions such as present sense impression, excited utterance, dying declaration, etc. Musical lyrics are often full of lies, exaggerations and embellishments. With specific reference to rap, if a rapper was involved in a fight, his lyrics would say he kicked someone's a**. If a rapper grew up in the suburbs, had a nanny, a butler, and attended private school, he will rap about street life, gangs, rough upbringing, etc.
In music, the sound, rhythm, cadence, rhyme, keys, are sometimes more important than the truthfulness of what is being said. In short, I don't think musical lyrics, as a category, should be admissible to show truthfulness of the statements. (Unintentional stray shot at Drake: It will be tough to prove that Kendrick Lamar's musical lyrics about “pedophile” was intended as a factual or truthful statement).
Apart from my personal opinion that the lyrics should not have been admitted against Tory Lanez, under the rules of evidence, a good argument could be made that the probative value of the lyrics, music videos, and tattoos was far outweighed by their prejudicial effect. This is a judgment call which can go either way.
*** Important Note: I did not follow or cover the trial closely. I previously thought that Tory Lanez's lawyers called Sean Kelly (the independent witness) to testify at trial. It appears that the government called him.
In my opinion, Mr. Kelly's testimony was crucial in the conviction of Tory Lanez. The defense allege that he changed his testimony. If he did, the defense cross-examined him thoroughly and, apparently, the jury chose to believe his trial testimony. Mr. Kelly previously said a shooter was a female. Mr. Kelly also previously stated that the shorter man ran to the shooter and attempted to take the firearm away. At trial, Mr. Kelly also said that the shorter man also fired the gun four or five times.
To me, this is not a change in his testimony. His previous statement was not that the ONLY the female fired a shot. Thus, his later statement that the shorter man ALSO fired shots is not inconsistent with his prior statement. One can glean from his statements and testimony that the two women were engaged in a fist fight and one of the women fired a shot. Tory Lanez then rushed to the woman who fired the shot, snatched the gun, and fired about four shots. One of these shots could've impacted Meg's foot or feet – either directly or indirectly. That's my own opinion and interpretation of the evidence in light of Mr. Kelly's testimony.