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Wow Tom Jackman in 1988-
Victim's Words May Be Used in Murder
Trial
Diary Depicts Trouble With Suspect -- Her Brother
By Tom Jackman
Washington Post Staff Writer
Monday, November 23, 1998; Page B01
In hundreds of journal entries, Anne Harper recorded the details of her life
as a Fairfax County high school student. At the time, her candid
observations about her friends, her classes and her family were meant to
be as private as those in any teenager's diary.
But six years later, Harper's writings may become pivotal in the trial of the
man charged with killing her -- her younger brother, Matthew. He is
accused of stabbing her to death at the family's home on Thanksgiving in
1995 and setting the house on fire to try to cover up the crime. Her diary
portrays Matthew Harper as a volatile youth who had bitter, sometimes
violent arguments with her and their mother.
"Matt and I had a major fight -- one of the biggest in years," Anne Harper
wrote in one entry. "He's been so damn aggressive toward me lately," she
wrote on another date. "Why? I haven't done anything."
Fairfax Deputy Commonwealth's Attorney Raymond F. Morrogh declined
to comment on the diary last week. But the writings appear in court
records because he has provided a copy of the journal to defense
attorneys, an indication that he probably will try to use it at Matthew
Harper's trial, which is set for Jan. 25.
Arthur M. Schwartzstein, Harper's attorney, also declined to comment,
saying he could not discuss a pending case. He said his client and other
family members also would not comment.
Courts typically have ruled that the diary of a murder victim is inadmissible
because of the prohibition against hearsay testimony -- a witness testifying
about what someone else said. But in several high-profile cases across the
country, prosecutors have persuaded judges to bend that rule.
Such diaries often produce emotional courtroom moments, evoking both
the humanity and the vulnerability of the trial's absent victim. But the
journals usually prove very little about the crime and serve more to inflame
the jury than inform it, many defense lawyers contend.
In the O.J. Simpson murder trial, Judge Lance Ito prohibited the use of
Nicole Brown Simpson's diaries of alleged abuse, prompting the California
legislature to craft an exception to the hearsay rules after O.J. Simpson's
acquittal. Her journal was then admitted into evidence at his civil trial, a
factor that some legal observers cited in explaining why the jury in that case
ruled against him.
Anne Harper, who was 20 when she died, was found by firefighters who
responded to the blaze at the family's house in the 10900 block of Ryers
Place, just south of Fairfax City. Her body was discovered on the first
floor, and an autopsy later revealed that she suffered a deep stab wound in
the back.
Matthew Harper, then 18, was a suspect from the start, but not until three
years later did investigators believe they had enough evidence to charge
him. At the time of his sister's death, he denied any involvement and told
investigators he had been sleeping at a girlfriend's home when the fire
started.
When detectives asked him whether there were any problems in his family,
Harper said, according to police: "No, no fighting, no arguing. I have never
met a brother and sister that don't fight every now and then. On the whole,
the three of us [he, his sister and his mother] are a lot closer than almost
any family I have ever known, especially my sister and I."
But Anne Harper's diary, much of it written in 1992, paints a different
picture.
In February 1992, after her parents had separated, Anne wrote: "Mom
and Matt raised voices 'cause he wants to stay with Dad. . . . Matt
punched a hole in the wall and cracked a door. Scary."
In another set of entries, which have month and date headings but no year,
Anne Harper wrote: "Mom and Matt got into an awful fight today. . . . It
got physical. Mom has an awful red mark on her R eye, and for a while her
lower face (R) was swollen."
Such diaries "generally would not be recognized or admitted" at a trial, said
Marvin D. Miller, an Alexandria lawyer and director of the National
Association of Criminal Defense Lawyers. An obvious problem, he said, is
that the defense attorney can't cross-examine the author.
William B. Moffitt, a defense lawyer in the District and vice president of
the defense lawyers' association, said the truth of such journals is always in
doubt. "There's no way to establish that the diary is a reliable reporting of
events," Moffitt said. "I am certain that it's not admissible in a Virginia
court."
Court records indicate that the diary is far from the only evidence
prosecutors will seek to present. Analysis of a bloodstain on Matthew
Harper's jeans indicated a DNA match with a blood sample taken from
Anne Harper's body, and a firefighter reportedly saw soot on Matthew
Harper's face consistent with being present at a fire, the court records say.
Using a victim's diary backfired on prosecutors in a 1986 trial in Prince
William County. Kristi Kauffmann, 14, committed suicide by throwing
herself in front of a train in Manassas. Her father, Paul James Kauffmann
Jr., was later charged with aggravated sexual battery on his daughter.
In her diary, Kristi Kauffmann wrote that her father was an "incestive
molesting jerk." She also made comments to a friend about her father.
Both the diary entry and the comments were admitted as evidence, with
prosecutors arguing that they showed her state of mind at the time of the
crime.
But the Virginia Court of Appeals said her state of mind was irrelevant and
reversed her father's conviction. Kauffmann was not retried.
Other prosecutors have had more success. Experts said California is
believed to be the first state to specifically allow hearsay evidence in cases
of domestic violence, such as the Simpson case.
But in Texas, prosecutors recently used a much older law to introduce the
diaries of an 11-year-old murder victim in the trials of her mother and the
mother's boyfriend.
Bobby Wayne Woods was charged with killing Sarah Patterson in April
1997, and Sarah's mother was charged with child neglect. In both trials,
Hood County District Attorney Richard Hattox had witnesses read from
Sarah's diary, in which she described her dislike for Woods. Both trials
resulted in convictions.
A long-standing Texas law allows both the state and the defendant in
murder trials "to offer testimony as to all relevant facts and circumstances
surrounding the killing and the previous relationship existing between the
accused and the deceased." Hattox noted that defense lawyers could turn
the law to their advantage by trying to show a loving relationship between
suspect and victim.
And this month in a Wilmington, Del., courtroom, jurors are hearing
excerpts from the diaries of Anne Marie Fahey, a 30-year-old secretary to
Delaware Gov. Thomas R. Carper (D). Fahey was killed two years ago,
and her boyfriend, prominent Philadelphia lawyer Thomas J. Capano, is
charged with her slaying.
The diaries describe Fahey's loving feelings about the relationship, and later
her disgust. "What a controlling, manipulative, insecure, jealous maniac,"
she wrote in her final entry.
When prosecutors suggested using the diaries, defense lawyers didn't
object. Instead, at the start of the trial, the defense revealed a surprising
new theory: that Capano disposed of Fahey's body but didn't kill her.
"The diaries help both sides," said Eugene J. Maurer Jr., one of Capano's
attorneys. "Due to our defense, her state of mind is relevant. We did not
object to the [diaries'] admissibility."
Capano's attorneys have not revealed their theory of how Fahey died.
© Copyright 1998 The Washington Post Company