Matthew Farwell goes to trial on October 5 for the murder of Sandra Birchmore. The rulings that will shape that trial were issued on September 17, and the most consequential one is built on a proposition that sounds circular until you see how the judge handled it: Sandra Birchmore’s own words come in against Farwell because the government says he killed her to stop her from talking.
We pulled the docket in United States v. Farwell, No. 1:24-cr-10259 (D. Mass.), and read Chief Judge Denise J. Casper’s electronic orders. What follows is from those orders and from the clerk’s notes of the final pretrial conference, not from a summary of them. Farwell has pleaded not guilty and is presumed innocent.
The ruling that matters: forfeiture by wrongdoing
The government moved to admit Birchmore’s out-of-court statements under Federal Rule of Evidence 804(b)(6). Farwell opposed. On September 17, Casper allowed the motion.
Rule 804(b)(6) is the hearsay exception for a party who “wrongfully caused (or acquiesced in wrongfully causing) the declarant’s unavailability as a witness and did so intending that result.” As Casper put it, quoting the Eighth Circuit in United States v. Emery, 186 F.3d 921, 926 (1999), the rule “establishes the general proposition that a defendant may not benefit from his or her wrongful prevention of future testimony for a witness or potential witness.”
The confrontation problem is handled by treating it as a waiver rather than an exception. Casper cited Giles v. California, 554 U.S. 353, 367, 377 (2008): the rule is not an exception to the Sixth Amendment right of confrontation, but a waiver of it by a defendant “who had in mind the particular purpose of making the witness unavailable.”
Two details in the order matter enormously for how the trial will actually run.
The government does not have to prove that silencing her was the only motive. Casper wrote that the “government is not required to show that a defendant’s sole purpose was to silence a declarant,” citing United States v. Cazares, 788 F.3d 956, 974 (9th Cir. 2015), and the First Circuit’s decision in United States v. Houlihan, 92 F.3d 1271, 1279 (1996). The evidence “may show a defendant had multiple purposes for murdering the declarant, but one must be to prevent her availability for testimony at trial.” Houlihan also extends the doctrine to potential witnesses, not only actual ones.
The admission is conditional, and the findings come at the end. This is the part that will not be obvious to anyone watching the trial. Casper is admitting Birchmore’s statements the way a court conditionally admits co-conspirator statements, and will make her findings “at the end of the evidence in this case as it would with co-conspirator statements under Petrozziello.” Houlihan supplies the logic: “proving the conditions precedent to the applicability of the coconspirator exception is analytically and functionally identical to proving that a defendant’s wrongdoing waives his rights under the Confrontation Clause.”
So the jury will hear Birchmore’s journals, texts and statements for weeks before the judge decides whether the government carried its burden to admit them. Casper addressed the defense’s objection to that risk directly, noting she retains the ability to strike evidence, give curative instructions, and, if the government’s failure leaves “a dearth of evidence from which no reasonable jury could find guilt,” to grant a Rule 29 motion.
What the defense lost
The clerk’s notes from the September 17 final pretrial conference read as a near sweep. The defense asked the court to note its objection to each denied motion, and the court preserved them.
- D. 181, a Rule 702 challenge to the testimony of Dr. Michael Baden: denied, objection preserved.
- D. 188, a motion to limit the testimony of Dr. Rocchio: denied, though the court reserved on the scope of that testimony.
- D. 192, a motion to preclude opinion testimony by Birchmore’s treatment providers: denied.
- D. 193, a motion to preclude lay opinion about her cause of death: denied.
- D. 195, a motion to exclude death scene and autopsy photographs: denied without prejudice, subject to notice if the defense presses an objection to particular exhibits.
- D. 207, a sealed motion: denied.
The state-of-mind ruling, and why it is cleverer than it looks
The two denials worth reading closely are D. 192 and D. 193, because they turn on the same move.
The witnesses at issue are Birchmore’s licensed mental health counselor and her OB/GYN, both of whom treated her for years and were treating her when she died, plus family and friends. The defense did not object to their describing her demeanor, her treatment, or the presence or absence of risk factors. What it wanted excluded was their testimony that they were surprised by her alleged suicide.
Casper held that this is not opinion testimony at all. “A witness’s testimony about his own state of mind is not opinion testimony,” she wrote, quoting United States v. Morton, 391 F.3d 274, 277 (D.C. Cir. 2004). The surprise is offered to explain the actions these witnesses took or did not take, including that several of them contacted state law enforcement to ask that the death be investigated as a homicide. That is evidence about why an investigation happened, not an opinion about how she died.
The government expressly disclaimed the further step, telling the court it “does not intend to use the term ‘expert’ in connection with either of these witnesses at trial” because they “are percipient fact witnesses who happen to be experts in their fields,” and that it will not elicit any opinion from them about cause of death. Casper noted that if the defense wants a contemporaneous limiting instruction, it may ask for one.
She also rejected the defense’s argument that a treating physician has a self-interested reason to express surprise at a current patient’s suicide. That argument, she wrote, “does not support a motion to exclude as opposed to providing fodder for cross examination.”
What the defense won
One thing, and it is not trivial. On D. 220, Farwell moved to preclude the FBI from narrating text messages in audio form. The government responded with a sample audio file. Casper allowed the defense motion under Federal Rule of Evidence 611(a), the rule giving a court control over the mode of presenting evidence.
The jury will read the messages rather than hear an agent perform them. In a case where the texts are central, tone is worth fighting over.
Still unresolved, with deadlines
- D. 265, the government’s second motion to exclude the expert testimony of Daniel Loper, remains under advisement. Counsel were ordered to confer and file a supplement narrowing the dispute by September 28.
- A revised disputed exhibit list reflecting the court’s rulings is due September 30. Three exhibits were missing and are to be provided to the court as soon as practicable.
- Witness lists were filed by both sides and overlap. Neither side anticipated filing a revised list.
- On September 21, Casper allowed two assented-to motions to seal, one of them a defense request relating to a Rule 17(c) subpoena. Rule 17(c) is the criminal subpoena for documents and objects. The substance is sealed and we are not going to speculate about it.
Who is trying the case
For the government: Brian Alexander Fogerty, Elizabeth Riley and Torey B. Cummings. For Farwell: Kimberly C. Stevens, Joanne M. Daley, Tara Allen and Julia Lagerholm. Chief Judge Denise J. Casper presides. Magistrate Judge M. Page Kelley is the referred judge. The indictment was returned August 27, 2024, and the docket now runs past 320 entries.
What to watch on October 5
The shape of the trial is now set. The government will put on Birchmore’s own words and the people who knew her, and will argue that the reason her words are admissible is the same reason Farwell is guilty. The defense will argue suicide, will cross-examine the treatment providers on exactly the point Casper flagged, and will be building a record of preserved objections for appeal on the 804(b)(6) ruling.
The one thing to listen for at the close of evidence is Casper’s findings on whether the government proved the 804(b)(6) elements by a preponderance. That ruling gets very little attention in the moment and is usually the one that matters on appeal.
When does the Matthew Farwell trial start?
October 5, 2026, before Chief Judge Denise J. Casper in U.S. District Court in Boston. He has pleaded not guilty.
What is forfeiture by wrongdoing?
Federal Rule of Evidence 804(b)(6) allows statements by an unavailable declarant to be used against a party who wrongfully caused that unavailability intending that result. Giles v. California treats it as a waiver of the defendant’s confrontation right rather than an exception to it.
Will Sandra Birchmore’s journals be read to the jury?
Casper allowed the government’s 804(b)(6) motion, so her statements are conditionally admitted. The judge will make findings on whether the government proved the required elements at the close of the evidence.
Did Farwell win any pretrial motions?
One. The court barred the FBI from presenting text messages as audio narration, under Rule 611(a). The court denied his motions on Dr. Baden, Dr. Rocchio, the treatment providers, lay opinion on cause of death, and autopsy photographs.
Can the treating providers say they were surprised she died by suicide?
Yes. Casper held that testimony about a witness’s own state of mind is not opinion testimony, and that the surprise explains the actions those witnesses took, including contacting law enforcement.
What is still undecided before trial?
A motion to exclude the expert testimony of Daniel Loper, with a supplement due September 28, and a revised disputed exhibit list due September 30.
All rulings, quotations, deadlines, counsel names and docket numbers taken directly from the docket in United States v. Farwell, No. 1:24-cr-10259 (D. Mass.), including the electronic orders entered September 17, 2026 at entries 266, 267, 268 and 272, the clerk’s notes of the September 17 final pretrial conference at entry 273, and the September 21 sealing orders at entries 274 through 277. Citations verified on CourtListener: Giles v. California, 554 U.S. 353 (2008); United States v. Houlihan, 92 F.3d 1271 (1st Cir. 1996); United States v. Emery, 186 F.3d 921 (8th Cir. 1999); United States v. Morton, 391 F.3d 274 (D.C. Cir. 2004); United States v. Cazares, 788 F.3d 956 (9th Cir. 2015); United States v. Flores-De-Jesus, 569 F.3d 8 (1st Cir. 2009); United States v. Rodriguez-Adorno, 695 F.3d 32 (1st Cir. 2012). The contents of the sealed filings are not public and we have not seen them. Matthew Farwell has pleaded not guilty and is presumed innocent of every charge. General information about federal practice, not legal advice.