The hearing began on August 15, two months before the trial was to begin, and it would concern the admissibility of some of the most damaging evidence against Hemy.
The stakes were high for both sides. Rusty’s father and brother, who flew in from Cleveland, sat in the audience section of the courtroom. They had not seen Hemy since the shiva at Rusty’s home after the funeral when he was just another face in the crowd. “We wanted to be here for Rusty,” said Steven Sneiderman. Andrea did not attend, represented again by her lawyer.
Waiting in the wings to testify was Ariela Neuman.
Hemy’s lawyers sought to throw out almost everything police had collected under a search warrant from Hemy’s house and office, including his computer, as well as records for his cell phone and email accounts. The searches, the defense claimed, produced evidence tainted by “defective warrants, issued based upon affidavits that failed to establish probable cause or that provided stale information.” Hemy’s lawyers also wanted Judge Gregory Adams to bar most of what Hemy said during his police interview on the grounds he was not properly informed of his rights. And the defense wanted to control the verbiage at trial, seeking to bar the DA from saying things like “murder” and “malice murder,” and “possession of a firearm during the commission of a crime.”
The hearing put the Dunwoody Police Department under the microscope. Called to testify, Detective Andrew Thompson acknowledged that the Sneiderman killing was his first murder case and had to answer for what some had argued was deferential treatment of Andrea. Thompson revealed publicly for the first time that he didn’t talk to her until the day after the shooting and that “she did mention that Hemy was her supervisor at that point, and that he did make an advancement toward her,” he said. Addressing why the department didn’t go after Hemy sooner, Thompson said Andrea “seriously minimized the encounter and said that was a onetime incident. Nothing ever came of that.” Therefore, he said, “That information about Hemy was not shared. We were being driven toward other avenues of investigation by the family … by Andrea’s parents, by Andrea herself.”
Sergeant Gary Cortellino also testified, telling the judge that investigators had “yet to compare notes” before talking to Hemy and that only later did they obtain the search warrants for phone records and texts and emails between Hemy and Andrea.
“So when you decided to arrest Mr. Neuman, you had the same information essentially as you had when you began this videotaped interview?” asked defense attorney Bob Rubin.
“Right,” said Cortellino.
That made Hemy’s interrogation—and all the information gleaned from it—the basis for most of what evidence later was collected. The defense attacked the tactics of Cortellino and Barnes, suggesting they ran roughshod over Hemy’s constitutional rights. Cortellino said that Hemy only waived his Miranda rights about an hour into the interview and even then after a back-and-forth between him and the detectives over the subject of an attorney.
“He asked me, he said, ‘Do I need a lawyer?’ and I told him, ‘I don’t know, do you need one?’” said Cortellino (the recording and transcript of the interview had not yet been released publicly).
“Mr. Neuman says, ‘I’m not waiving my rights,’ correct?” asked Rubin.
“I’m not waiving my rights, but I do want to talk,” corrected Cortellino.
“At that point, did you stop questioning him?” asked Rubin.
“When he said that I didn’t know exactly what he meant,” said Cortellino, who then went on to continue questioning him. “I had no inkling of his role in any of this. So there was no need to Miranda as far as I’m concerned because he wasn’t a suspect. He was just somebody that was in the circle knowing the family.”
Of course, the detectives had more than an inkling—they had Hemy’s name on a rental form for the van most likely used in the murder, and they knew that Hemy was Andrea’s boss. In his questions to the detective, DA Robert James ticked off the many things that went right in the interview, noting that Hemy never was in custody, legally speaking, before he was Mirandized. He also said that Hemy voluntarily rode with detectives to the police station—he was not arrested or handcuffed. Nor was he ever denied the chance when he got to the interview room to call a lawyer or even get up and leave, even though he had a good excuse to because of the doctor’s appointment.
James noted, “At no time did Neuman say I need for this to end,” and argued that a “reasonable person would not feel he was in custody and was going to be in jail that night.” In the end, James said, a DVD of the interview would speak for itself, showing that Hemy “did indeed waive his rights” and that the information provided was “freely given and not given in custody.”
After a week-and-a-half break, the suppression hearing resumed August 24. The focus now was on the search of Hemy’s house the day he was arrested. For this, the DA had a star witness.
Ariela Neuman had shoulder-length blond hair with bangs and glasses and wore a white blouse with a necklace. She took the stand and gave her name for the record. Asked what her relationship was to the defendant, she answered, “I am his wife.”
The first time the public saw Hemy’s estranged wife made for a dramatic day in court. The Atlanta Journal-Constitution observed, “Neuman seemed taken aback by the presence of his wife of 22 years.” Channel 2’s reporter said Neuman “appeared surprised.” The Dunwoody Crier said Ariela “avoided eye contact” during her brief testimony. The only thing that would have heightened the tension was a face-off with Andrea Sneiderman, but she once again did not come to court.
Answering questions from Chief Assistant District Attorney Don Geary, Ariela said that at the time of his arrest Hemy had not been living with her for months but had access to the house. “He came back and forth,” she said. “He had the keys. He had the [garage door opener] to come into the house, and he was there, definitely.” When police initially arrived, they told her that her husband had been arrested—it was the first time she’d heard about that—and that they wanted to search the house.
“I gave them permission to take everything they want,” she testified. Police stood by awaiting a warrant. Only when it arrived, she said, did the officers take the home computer and two storage drives, even though her husband was no longer living there.
Her testimony was a blow to Hemy—his attorneys had claimed she was coerced by police into the search. “She chose to help because she’s always cooperated with law enforcement,” said her attorney Esther Panitch. “She has always claimed there was an affair. And at the beginning she couldn’t believe that her husband would be tied to a murder.” The case had placed Ariela “in a very unfortunate position,” said Panitch. “We are hopeful that she will not need to appear again as she tries to move forward with her life in the wake of this devastating trauma related to the outcome of an affair between her husband and Andrea Sneiderman.”
On September 8, Judge Adams issued a written ruling. “The defendant voluntarily accompanied officers to the Dunwoody Police Department,” the judge wrote. “The defendant spoke to and gave a video recorded statement to officers of the Dunwoody Police Department. During the defendant’s statement there was no coercive police or government activity [and] during defendant’s statement there were no improper threats or promises.” The tactics by Cortellino and Barnes, from haranguing Hemy to crowding him in the small interview room, passed legal muster, the judge found. What’s more, the judge said, “During defendant’s statement the defendant did not exercise his Constitutional right to remain silent nor did defendant make an unambiguous or unequivocal request for counsel, and … the defendant was not in custody until informed that he was under arrest at the completion of the recorded statement.” Signing the rights waiver, even so far into the interview, meant just what it said it would: Everything Hemy said could be used against him.
The judge refused to dismiss the search warrants and refused to toss out Hemy’s statements to police, before and after his Miranda warning. The DA scored a slam-dunk victory. All of the evidence amassed against Hemy Neuman could be used at trial.
What’s more, as part of the ruling, the search warrants were released to the media, laying it all out for every potential juror to see: the van rental; the purchase of a Bersa handgun for $375—the same day Hemy withdrew $400 from an ATM; the gun seller picking Hemy out of a lineup; the iPhone and iPad records; and more allegations about Hemy’s relationship with Andrea.
“Investigation revealed that the defendant and Andrea Sneiderman were spending an inordinate amount of time together, and frequently made overnight trips away from the Atlanta area,” the search warrant said. “It is probable that the defendant may have made some statement and/or admission to Andrea Sneiderman regarding his involvement in the murder of the victim, which may have been conveyed by electronic communication.”
Soon more revelations would reach the media, including details of the email Hemy had sent to Andrea with the Bruno Mars gift song after the murder. Then another search warrant affidavit stated in the strongest terms yet the official theory for why Rusty was murdered: “Law enforcement has cause to believe that an extramarital affair between the defendant and … Andrea Sneiderman in large part provided motive to murder Russell Sneiderman.”
Suffering a major pretrial defeat and the daily drumbeat of negative publicity, Hemy’s lawyers caucused. With a mountain of evidence against their client, a traditional reasonable-doubt defense was an option. But they had another choice, one born out of developments behind the scenes that the public—and prosecutors—didn’t yet know about that opened the door for a bold legal gambit. It was legal strategy rooted in an obscure nineteenth-century event, one that has frequently failed and now promised to subject Hemy to nationwide ridicule. But it appeared to be his last best hope.
“We don’t pick the defense,” his attorney Doug Peters later said. “The defense picks us.”