I'd love to hear Rovin's take on this as my thought process is a bit convoluted, but here goes.. Is it possible that the prosecution asked for immunity knowing that she's going to take the stand as a witness for the defense, knowing fully that she'll try to commit perjury? And then when she does, they would have some evidence that proves this fact, thus discrediting her entire testimony? That's probably entrapment of some kind.
Aaron Hernandez Trial (Odin Lloyd)
- Thread starter Rovin Romine
- Start date
- Status
lithos2003 said:
At times, "but it's entrapment" seems to be the bane of my existence. Entrapment is the government specifically inducing a person to do a crime *that person otherwise wouldn't have done.* Basically you have to be harassed into doing the crime (or be especially vulnerable and taken advantage of/led by the nose) for anything to be entrapment scenario. Stings, undercover agents, waiting for someone to screw up, waiting for someone to finish committing the crime (even if the government knew and could have intervened in the middle of the events) - these are not entrapment.
What you're proposing isn't entrapment for a number of reasons, mostly because she can simply tell the truth or take the 5th if called. If she lied in the past that's not the government's fault, and they have no special independent duty to let her get away with that. The immunity is to get around her taking the 5th. It probably also shields her from being prosecuted from perjury if her statements at trial contradict previous statements. (Any reasonable deal would include the prosecution to agreeing not to charge her for any prior perjury in this matter, so long as she tells the truth now.)
Also, the 5th isn't something you can turn on or off at will. So you can't testify to X "for" a side, then invoke the 5th if you're crossed on it. Well, you could, but it's complicated. Sometimes the witness can't testify at all if they're going to go down that path because it would allow selective testimony that would taint the jury.
Lastly, if she testifies and lies, the prosecutor will introduce evidence at trial to show she's lying (or has made inconsistent statements in the past). This is totally fair game. Happens in most trials to some degree. It's called "impeaching" a witness. Either side can impeach. Either side also has the ability to put on contrary evidence - say a document/video/recording/witness that shows something other than what the witness said. The trial resolves as it resolves. Then (or concurrently) the prosecution can charge any witness (even their own, but that's rare) with committing perjury - it's an independent crime from the proceeding they were testifying in. Just like if that witness walked into the bathroom mid-trial and stabbed someone.
To prove perjury, you have a separate trial where the prosecution has to prove, beyond a reasonable doubt, that the person lied under oath. Sometimes, while you can show to the original jury you can't trust the person's statement, you can't turn around and prove (beyond a reasonable doubt) that they lied. Plus, perjury, depending where you are, has some specific defenses. One of which is "recantation" - basically the courts hold that it's more important for a person to eventually tell the truth than it is to punish every single violation and thus encourage people to double down on an initial panicked lie. This does not apply to all situations - it's not a license to lie until you're caught.
*Please note, I'm generalizing here - there are a lot of wrinkles and exceptions.
Steve Dillard said:
Depends, depends. We need a MA crim law person to weigh in here. I assume that it's broadly the same as FL and NY (where I practice), but every state has their own version of the bill of rights. While the Fed. bill of rights provides a "floor" or basic level of rights, the states have the ability to convey a greater level of privacy and protection (should they wish). It's possible MA has special proceedings and/or specific caselaw on these issues.
PS - anyone have time to find and post the motions/order? That'd tell us a lot.
PPS - don't bother looking - reports are that the motion and the order are sealed.
Also, if she has immunity, she has to testify or be held in contempt.
If she does not and is held in contempt, that could cause a mistrial/retrial depending on how it plays out. Or the trial could proceed with the prosecutors offering pieces of her prior testimony into evidence. Depends on MA law. Either way, she'll likely sit in jail while in contempt - the path out is for her to actually testify.
Assuming she testifies, sooner or later, she can lie, in which case she faces perjury charges, or she can tell the truth, in which case she avoids liability.
Or at some point she can just flip.
Obviously the State is setting her up for testimony whether she likes it or not. Turning up the heat on her. No way she flips. Continuing to being "in love" with AH is crazy in itself. Can't see her taking him down. She seems to be the martyr type who will go to jail for her man. However, truth is always stranger than fiction; you never know!Rovin Romine said:
So help me with this. If she is held in contempt, she can be jailed only for the duration of the trial, correct?
My recollection is (don't practice in this area) civil contempt can be far worse than criminal, cause there is theoretically no limit to how long you can be jailed for the former.
That sounds right (contempt would last for the duration of the trial). You also don't get full procedural rights in a civil contempt situation, whereas criminal contempt is prosecuted much like other crimes.dcmissle said:
Question about using her prior testimony: if the prosecution puts this in and she continues to refuse to testify at all (supposing AH tries to call her to rebut the prior statement), is there a confrontation clause violation?
Crazy woman...
On Tuesday afternoon, the court released Garsh's decision to grant prosecutors' request for immunity for Jenkins, which could compel her to testify or face time behind bars.
Jenkins appeared in court in her usual spot, sitting behind Hernandez. The two smiled at each other, and Hernandez complimented Jenkins on her new hairstyle then winked at her. She laughed in response.
As Hernandez left court at the end of the session, he whispered, "I love you," to Jenkins.
http://espn.go.com/boston/nfl/story/_/id/12309296/aaron-hernandez-trial-resumes-wednesday
On Tuesday afternoon, the court released Garsh's decision to grant prosecutors' request for immunity for Jenkins, which could compel her to testify or face time behind bars.
Jenkins appeared in court in her usual spot, sitting behind Hernandez. The two smiled at each other, and Hernandez complimented Jenkins on her new hairstyle then winked at her. She laughed in response.
As Hernandez left court at the end of the session, he whispered, "I love you," to Jenkins.
http://espn.go.com/boston/nfl/story/_/id/12309296/aaron-hernandez-trial-resumes-wednesday
Ok, RR
Since she's at the trial, can the prosecutors put her in the stand to test her contempt? I know it's a close call in civil cases whether the invocation of the Fifth can be barred from the jury.
In theory it could be highly prejudicial to Hernandez if they put her on the stand and she refuses to answer any questions about her fiancé.
My guess then is that this doesn't get done before the jury. Too bad.
Since she's at the trial, can the prosecutors put her in the stand to test her contempt? I know it's a close call in civil cases whether the invocation of the Fifth can be barred from the jury.
In theory it could be highly prejudicial to Hernandez if they put her on the stand and she refuses to answer any questions about her fiancé.
My guess then is that this doesn't get done before the jury. Too bad.
Yep. Civil contempt is much worse than criminal contempt.
I'm pretty sure the prosecution can just call her as their own witness. (They can also move to treat her as a hostile witness if necessary.) However, if her attorney indicates she's refusing to testify to *anything* prior to her being called, then it'll probably be first addressed outside the presence of the jury through a hearing. Mostly because courts don't like to put anything that looks like a basis for mistrial in front of a viable jury if there's a chance it can be worked out ahead of time.
Steve Dillard said:
I'm pretty sure the prosecution can just call her as their own witness. (They can also move to treat her as a hostile witness if necessary.) However, if her attorney indicates she's refusing to testify to *anything* prior to her being called, then it'll probably be first addressed outside the presence of the jury through a hearing. Mostly because courts don't like to put anything that looks like a basis for mistrial in front of a viable jury if there's a chance it can be worked out ahead of time.
So not including today's testimony, it's been a slow week.
There was a jury field trip to the various scenes. I'm a little "eh" on the trips. In terms of a soft influence, they probably benefitted the defense in humanizing AH and bolstering the "why would he do it?" defense. I'm not sure how much the trips add to the prosecutions case, when everything has already been so meticulously mapped out. I suppose it brings home to the jury how the prosecution's "timeline" of events works - meaning AH could do all the things done in the time allotted. But it seems a bit redundant.
Today was a lot of testimony on the fact that AH rents cars. Often. (To my mind that does not move the ball up or down the field. It does remove the argument that AH went out of his way to rent a car to kill OL - if the state was going to make that argument, which I kind of doubt.)
The interesting news of the day is that there was some sort of defense motion (oral?) to suppress a video tape of AH. It was denied by the judge, so the video is coming in, at least in part. (I missed the streaming video on that, so I'm reconstructing this from reporting.)
Apparently the prosecution wants to introduce a police-recorded video of AH in the police parking lot after his arrest/detention. On the video AH sits in a car with his attorney. AH takes apart his cell phone and calls Ernest Wallace on another phone. I didn't see the video, but that can't look good under any circumstances. The prosecution will say it shows "guilty mind" an an attempt to destroy evidence. The defense will say it's a cautious citizen who has been railroaded and who wants to protect private information. The jury will see a murder suspect who is stripping down his cellphone in a police parking lot, then using another phone (traceable? not traceable?) to call a fellow murder suspect. The phone call isn't that bad - but in conjunction with the stripping/dismantling of AH's other/standard phone, it looks awful.
While there's usually an expectation of privacy that shields attorney client contact, this took place in a car in plain view in a police parking lot. So the judge let the video in as one does not have a reasonable expectation of privacy just sitting in a car. (i.e., if the police -or anyone- can normally see inside the car with the naked eye, there's no magical constitutional forcefield that prevents them from simply videotaping what they see.)
Apparently the judge is going to have the video edited so that the defense attorney is not shown in the car with AH. Which is a really interesting issue. Absent controlling MA caselaw on the subject, the prosecution could make a very reasonable argument that the defense attorney should be shown as part of the "overall narrative." The judge could then instruct the jury that the presence of the defense attorney cannot be held against AH in any way. Devil's in the details, but man, depending on what's on that tape, it can look completely bad for the defense - no matter what the judge instructs. Juries aren't going to trust a defense attorney attacking the state's credibility if it looks like that defense attorney engaged in some shady and unexplained maneuvers. However, if the attorney was left in the tape, the cellphone destruction could be spun as something a slightly paranoid attorney advised his client to do. That would remove some of the taint from AH. But it would require AH or the attorney to testify.
In my experience attorneys get all kinds of squirrelly if there's even a suggestion they were involved in the developing facts of the case. Sometimes that creates severe conflicts as an attorney cannot usually be a witness and an advocate in the same case. So maybe the choice is between letting AH take the full hit of suspicious behavior (assuming AH does not testify) or losing a defense attorney mid-trial so that attorney can testify as to the car/cellphone event?
(One of my favorite trial moments was listing a prosecutor as an emergency rebuttal witness to impeach one of their own witnesses who had changed their story. It was an above board move on my part, but effectively caused a melt-down of the state's case. The state's case was flawed, but the effect was as if I'd somehow magically suspended the prosecutor over a cauldron of boiling oil - and the prosecutor had done absolutely nothing wrong/unethical at all.)
Here, there's nothing wrong with an attorney advising a client to "shield" information or to talk to a co-defendant. (Although the safer course is to have the attorney talk to a co-defendant.) However, it's a short step from that to having an attorney advise a client to destroy information or conspire with a co-defendant. And that is big big trouble.
There was a jury field trip to the various scenes. I'm a little "eh" on the trips. In terms of a soft influence, they probably benefitted the defense in humanizing AH and bolstering the "why would he do it?" defense. I'm not sure how much the trips add to the prosecutions case, when everything has already been so meticulously mapped out. I suppose it brings home to the jury how the prosecution's "timeline" of events works - meaning AH could do all the things done in the time allotted. But it seems a bit redundant.
Today was a lot of testimony on the fact that AH rents cars. Often. (To my mind that does not move the ball up or down the field. It does remove the argument that AH went out of his way to rent a car to kill OL - if the state was going to make that argument, which I kind of doubt.)
The interesting news of the day is that there was some sort of defense motion (oral?) to suppress a video tape of AH. It was denied by the judge, so the video is coming in, at least in part. (I missed the streaming video on that, so I'm reconstructing this from reporting.)
Apparently the prosecution wants to introduce a police-recorded video of AH in the police parking lot after his arrest/detention. On the video AH sits in a car with his attorney. AH takes apart his cell phone and calls Ernest Wallace on another phone. I didn't see the video, but that can't look good under any circumstances. The prosecution will say it shows "guilty mind" an an attempt to destroy evidence. The defense will say it's a cautious citizen who has been railroaded and who wants to protect private information. The jury will see a murder suspect who is stripping down his cellphone in a police parking lot, then using another phone (traceable? not traceable?) to call a fellow murder suspect. The phone call isn't that bad - but in conjunction with the stripping/dismantling of AH's other/standard phone, it looks awful.
While there's usually an expectation of privacy that shields attorney client contact, this took place in a car in plain view in a police parking lot. So the judge let the video in as one does not have a reasonable expectation of privacy just sitting in a car. (i.e., if the police -or anyone- can normally see inside the car with the naked eye, there's no magical constitutional forcefield that prevents them from simply videotaping what they see.)
Apparently the judge is going to have the video edited so that the defense attorney is not shown in the car with AH. Which is a really interesting issue. Absent controlling MA caselaw on the subject, the prosecution could make a very reasonable argument that the defense attorney should be shown as part of the "overall narrative." The judge could then instruct the jury that the presence of the defense attorney cannot be held against AH in any way. Devil's in the details, but man, depending on what's on that tape, it can look completely bad for the defense - no matter what the judge instructs. Juries aren't going to trust a defense attorney attacking the state's credibility if it looks like that defense attorney engaged in some shady and unexplained maneuvers. However, if the attorney was left in the tape, the cellphone destruction could be spun as something a slightly paranoid attorney advised his client to do. That would remove some of the taint from AH. But it would require AH or the attorney to testify.
In my experience attorneys get all kinds of squirrelly if there's even a suggestion they were involved in the developing facts of the case. Sometimes that creates severe conflicts as an attorney cannot usually be a witness and an advocate in the same case. So maybe the choice is between letting AH take the full hit of suspicious behavior (assuming AH does not testify) or losing a defense attorney mid-trial so that attorney can testify as to the car/cellphone event?
(One of my favorite trial moments was listing a prosecutor as an emergency rebuttal witness to impeach one of their own witnesses who had changed their story. It was an above board move on my part, but effectively caused a melt-down of the state's case. The state's case was flawed, but the effect was as if I'd somehow magically suspended the prosecutor over a cauldron of boiling oil - and the prosecutor had done absolutely nothing wrong/unethical at all.)
Here, there's nothing wrong with an attorney advising a client to "shield" information or to talk to a co-defendant. (Although the safer course is to have the attorney talk to a co-defendant.) However, it's a short step from that to having an attorney advise a client to destroy information or conspire with a co-defendant. And that is big big trouble.
Wait so what you are saying is that taping someone who's standing in public has no expectation of privacy?
I'll point you to NFL v. Belichick from 2007.
I'll point you to NFL v. Belichick from 2007.
NortheasternPJ said:
OTOH, if this "case" were under the jurisdiction of the NFL entirely(no influence by Pats ownership) I have no doubt that initially they would have given him a 2 game suspension, then when tapes became available from his home recording showing the weapon they would push it to a season and launched a public campaign pleading with people to stop shooting each other, all while hiring actors to talk about how they aren't going to shoot people anymore or be the victim of said shooting.
In no means am I trying to belittle domestic violence, the complete "No More" saga has just been such a monumental F-up it's hard to justify.
Its worse than that.Valek123 said:
The actors would be talking about how it's time to "start the conversation about murder". Because no one was talking about murder two years ago, so how could anyone like the NFL or Hernandez know it was wrong to murder someone?
RR: thanks, please keep posting these summaries.
It would be great if Fee stepped down from the case in order to be a witness saying he told Hernandez to take apart his cell phone.
(Does stripping a cellphone here mean anything besides taking out the battery?)
Does the lawyer then bill AH for the time he spends on the stand??
It would be great if Fee stepped down from the case in order to be a witness saying he told Hernandez to take apart his cell phone.
(Does stripping a cellphone here mean anything besides taking out the battery?)
Does the lawyer then bill AH for the time he spends on the stand??
NortheasternPJ said:
Yeah. It's one of those bizarre "legal" concepts.
Next up, "if you choose to tell people about the shit you did, they can tell the jury that you told them about the shit you did."
We can follow that with, "the testimony of those 5 random people who told the jury what they saw you do is, in fact, 'evidence' - and yes, that's all a jury needs to convict you."
crystalline said:
I don't really know what happened to the cellphone, or if the police recovered some or all of the data. I know it was reported on at the time, but I'm not sure of the details. (There was some controversy over a search warrant and whether the defense had to surrender the phone?)
Only "expert" witnesses bill. Garden variety "this is what I saw/heard/smelled/did" witnesses can't bill. (Well, not without huge complications and potential charges being filed.)
Now we're getting some more interesting stuff. Listening to audio in the background and jotting notes.
Direct:
Only caught part of it. A police detective (Arrighi) testified as to the initial contact with AH. Police knocked on door. Basically AH hid in his house, didn't come out, observed police through security system. Eventually AH comes out. Takes about 45 min.? While outside the house AH talks to police, says, "What's up with all the questions?" AH goes inside and says "you're not coming in here."
AH comes out second time in different clothing. Detective and AH and SJ all go down to station. SJ drops AH off at the station (11PM) and drives home. Arrighi pulls SJ over (no criminal reason - just wanted to talk). They talk to SJ. "We were talking with Shayanna Jenkins. She received a call from AH. She immediately stopped cooperating."
**
Cross: The detective keeps giving the "big picture" answer to small specific questions. While this can backfire, Arrighi comes across as wanting to supply full information to the jury without being misleading. He seemed defensive/nervous, but the defense attorney was pressing a bit.
Defense (Sultan) pressed on lack of accurate measurements showing the distance from object to object.
Defense pressed on the detective's lack of specialized training in collecting evidence (sort of red herring.)
He also went after the police's initial interaction with AH; he made it seem like the police were snooping around and weren't obviously police. Probably the most effective piece.
He also tried to suggest the police weren't reasonable in how they tried to get ahold of AH (via cellphone). Pretty sure that failed.
He suggested SJ came back to talk to them voluntarily at some point. Bit vague though.
The cross was pretty good stylistically (and worth watching if you want to see a decent and realistic cross with a somewhat troublesome witness). However, I'm not sure how effective it was overall, if the goal was to show how badly the police handled the investigation and/or handled the crime scene, and/or interacted with AH. Bottom line is that this Det. basically took photos. And the jury can see the photos. So who really cares if he got out the calipers at the crime scene? Or can testify to the exact volume of rainfall in inches? He then went to AH's house and stuck around until AH came out. He then wanted to talk to a witness (SJ). (This is tenacity, not obsession or improper conduct.)
Caveat - again, because my viewing is spotty, I don't know if the defense is developing a theme here, or if their questions tie into previous crosses. If so, the could be ringing the same bell over and over for the jury. As a stand alone, this isn't bad and it's ultimate usefulness is really limited by the facts the defense attorney has to work with.
The detective should have skipped the coffee at lunch though, and should have calmly admitted to doing/not doing whatever the defense attorney was getting at. Sometimes witnesses get rattled and forget they're going to be re-directed (i.e., the attorney that called them will address any problems/incomplete answers after the cross gets finished.) 'Course, nervousness can come across as a product of sincerity. Or guilt. Hard to say what the individual members of the jury will read it as.
Redirect:
SJ's demeanor changed after AH phonecall. A lot of hearsay questions. (Nice "beyond the scope" objection by the defense).
Crime scene questions just sort of going over the idea that he took photos and didn't tamper. **Detective admits to making a mistake in his estimate.** This is fine for the prosecution. Good for him to admit he's not perfect.
At AH's house:
**Keys located on OL's body to a chevy suburban. The chevy was rented by AH.** (Huge!).
Loudly knocking on door, ringing door bell/heard it going off, shining flashlights into house, walking around house.
Said they were looking in the garage for the chevy suburban.
AH said he was watching the police for the whole time they were there before he came out - from 9:40 to 10:30PM.
Prosecution plays video of AH's home surveillance cameras. Basically totally backs up the detective. Plus these guys totally look like cops (flashlights, taking notes) and not some shady folks walking around peering into windows. And it goes on. And on. And on. The "peering" into the garage is about 5 seconds long. (Point not addressed - did AH call 911 if he thought someone who wasn't the police were prowling about?)
I don't know if the prosecution previously played this video to the jury - if not, this is basically a huge sucker punch on redirect. It makes the defense look shady and validates the detective. There's sort of a momentum to that. If the witness is validated on one contested issue (i.e., an issue that has a clear pro-defense or pro-state spin), I subjectively believe that juries often will "give" that witness other contested issues. The thought is that the witness's expression of what happened may not have been perfect, but the neutral video evidence validates the expression. Ergo, other imperfect expressions should be given slack.
This is pretty much a 9 of 10 redirect. Excellent job. You have to see the whole thing play out though. Not quite a stand alone piece.
Recross:
Weak. AH has no duty to answer the door at night.
Direct:
Only caught part of it. A police detective (Arrighi) testified as to the initial contact with AH. Police knocked on door. Basically AH hid in his house, didn't come out, observed police through security system. Eventually AH comes out. Takes about 45 min.? While outside the house AH talks to police, says, "What's up with all the questions?" AH goes inside and says "you're not coming in here."
AH comes out second time in different clothing. Detective and AH and SJ all go down to station. SJ drops AH off at the station (11PM) and drives home. Arrighi pulls SJ over (no criminal reason - just wanted to talk). They talk to SJ. "We were talking with Shayanna Jenkins. She received a call from AH. She immediately stopped cooperating."
**
Cross: The detective keeps giving the "big picture" answer to small specific questions. While this can backfire, Arrighi comes across as wanting to supply full information to the jury without being misleading. He seemed defensive/nervous, but the defense attorney was pressing a bit.
Defense (Sultan) pressed on lack of accurate measurements showing the distance from object to object.
Defense pressed on the detective's lack of specialized training in collecting evidence (sort of red herring.)
He also went after the police's initial interaction with AH; he made it seem like the police were snooping around and weren't obviously police. Probably the most effective piece.
He also tried to suggest the police weren't reasonable in how they tried to get ahold of AH (via cellphone). Pretty sure that failed.
He suggested SJ came back to talk to them voluntarily at some point. Bit vague though.
The cross was pretty good stylistically (and worth watching if you want to see a decent and realistic cross with a somewhat troublesome witness). However, I'm not sure how effective it was overall, if the goal was to show how badly the police handled the investigation and/or handled the crime scene, and/or interacted with AH. Bottom line is that this Det. basically took photos. And the jury can see the photos. So who really cares if he got out the calipers at the crime scene? Or can testify to the exact volume of rainfall in inches? He then went to AH's house and stuck around until AH came out. He then wanted to talk to a witness (SJ). (This is tenacity, not obsession or improper conduct.)
Caveat - again, because my viewing is spotty, I don't know if the defense is developing a theme here, or if their questions tie into previous crosses. If so, the could be ringing the same bell over and over for the jury. As a stand alone, this isn't bad and it's ultimate usefulness is really limited by the facts the defense attorney has to work with.
The detective should have skipped the coffee at lunch though, and should have calmly admitted to doing/not doing whatever the defense attorney was getting at. Sometimes witnesses get rattled and forget they're going to be re-directed (i.e., the attorney that called them will address any problems/incomplete answers after the cross gets finished.) 'Course, nervousness can come across as a product of sincerity. Or guilt. Hard to say what the individual members of the jury will read it as.
Redirect:
SJ's demeanor changed after AH phonecall. A lot of hearsay questions. (Nice "beyond the scope" objection by the defense).
Crime scene questions just sort of going over the idea that he took photos and didn't tamper. **Detective admits to making a mistake in his estimate.** This is fine for the prosecution. Good for him to admit he's not perfect.
At AH's house:
**Keys located on OL's body to a chevy suburban. The chevy was rented by AH.** (Huge!).
Loudly knocking on door, ringing door bell/heard it going off, shining flashlights into house, walking around house.
Said they were looking in the garage for the chevy suburban.
AH said he was watching the police for the whole time they were there before he came out - from 9:40 to 10:30PM.
Prosecution plays video of AH's home surveillance cameras. Basically totally backs up the detective. Plus these guys totally look like cops (flashlights, taking notes) and not some shady folks walking around peering into windows. And it goes on. And on. And on. The "peering" into the garage is about 5 seconds long. (Point not addressed - did AH call 911 if he thought someone who wasn't the police were prowling about?)
I don't know if the prosecution previously played this video to the jury - if not, this is basically a huge sucker punch on redirect. It makes the defense look shady and validates the detective. There's sort of a momentum to that. If the witness is validated on one contested issue (i.e., an issue that has a clear pro-defense or pro-state spin), I subjectively believe that juries often will "give" that witness other contested issues. The thought is that the witness's expression of what happened may not have been perfect, but the neutral video evidence validates the expression. Ergo, other imperfect expressions should be given slack.
This is pretty much a 9 of 10 redirect. Excellent job. You have to see the whole thing play out though. Not quite a stand alone piece.
Recross:
Weak. AH has no duty to answer the door at night.
Just took a quick look at MA's spousal immunity statute. Boy, do MA statutes seem archaic in structure. Anyway, it does not appear under under the statute that spouses must have been married before trial for the statute to apply, as I understand is the case in some other jurisdictions. There may be case law to the contrary, but Hernandez and Jenkins could theoretically at least have a potential trick up their sleeves if they need it.
From twitter reporting, today began with State's witness #24, Mark Archambault, installed/upgraded the video surveillance system in AH's house.
Followed by SW #25, LEO Michael Elliot - more crime scene testimony. This officer collected the white towel found by OL's body.
***
Sometimes much of trial is just establishing facts - but the facts don't have to come out in chronological or logical-predicate order. This can often lead to "boring" patches in the trial - meaning a lot of uncontroverted testimony about "background" stuff.
For example, to show the video evidence of the two officers trying to contact AH at his house, the state needs to introduce facts into evidence that the video actually shows what it purports to show. They can ask the officer on the video if it's accurate, but there are further issues of where the video came from, if the time stamp is accurate, how the video collection system works, which the officer can't testify to. Some of these facts are "predicate facts" - meaning one hasto have this information in front of the jury for the video itself to be a valid piece of evidence. Some of these facts are introduced to preclude obvious defenses/arguments (e.g., "the police doctored the tape," or "the video was taken on another day"). (Don't laugh, I won a "video case" largely because the state couldn't show the video was taken on the day of the burglary in question.)
While all the necessary facts need to be in before the end of the trial, there's some flexibly in how one is allowed to introduce them. The Court can allow evidence in "subject to linking up" (as it's often said). This means one can show the video and ask the officer on it what happened, then later one can establish how the video was made, how it was collected into evidence, how it wasn't tapered with, etc.
There's a real storytelling type skill involved - if you have to include A, B, C, D and E pieces of information through 3 witnesses, and C and D are boring, while E is exciting, how you do it? In what order do you call the witnesses? Do you try to do it all in a chunk or do you spread it out? What if "E" is part of another, more important narrative? How long can you defer C and D to deal with that more important narrative?
***
Another caution about trial watching from afar: I haven't watched this day to day. I guess I've seen parts of 7-10 witnesses testify - and we're up to 25 now. While we have a broad idea of what occurred, the jury is actually sitting there making notes about all 25 witnesses and all items in evidence. While I still think this is a very strong case against AH, it's always difficult to put one's self in the shoes of the collective jury. Part time pundits, unless they're watching the whole trial (and watching jury reactions) have a limited window into a trial.
Was there a juicy pro-state or pro-defense nugget in SW #24's testimony? Probably not. But if there was, it could be missed by nearly everyone except for the jury. Perhaps that theoretical juicy nugget is only significant because it builds on an equally obscure piece of testimony (or unanswered question) by another witness.
Post-trial, if the jury consents to explain its thinking, it's not entirely unusual for all the attorneys to be surprised at the significance the jury assigns to one particular thing or another. At the end of the day, the jury weighs the evidence itself, decides what the facts are, and applies those facts to the law. Theoretically, the attorneys don't need to make any arguments at all. They do of course, but it's not unusual for a jury to come up with its own independent theory of "what happened" - or to accept or discount testimony that everyone else considered to be a no-brainer. This can cut both ways - a jury can acquit in a way that's surprising to anyone not on the jury, but they can also convict.
Followed by SW #25, LEO Michael Elliot - more crime scene testimony. This officer collected the white towel found by OL's body.
***
Sometimes much of trial is just establishing facts - but the facts don't have to come out in chronological or logical-predicate order. This can often lead to "boring" patches in the trial - meaning a lot of uncontroverted testimony about "background" stuff.
For example, to show the video evidence of the two officers trying to contact AH at his house, the state needs to introduce facts into evidence that the video actually shows what it purports to show. They can ask the officer on the video if it's accurate, but there are further issues of where the video came from, if the time stamp is accurate, how the video collection system works, which the officer can't testify to. Some of these facts are "predicate facts" - meaning one hasto have this information in front of the jury for the video itself to be a valid piece of evidence. Some of these facts are introduced to preclude obvious defenses/arguments (e.g., "the police doctored the tape," or "the video was taken on another day"). (Don't laugh, I won a "video case" largely because the state couldn't show the video was taken on the day of the burglary in question.)
While all the necessary facts need to be in before the end of the trial, there's some flexibly in how one is allowed to introduce them. The Court can allow evidence in "subject to linking up" (as it's often said). This means one can show the video and ask the officer on it what happened, then later one can establish how the video was made, how it was collected into evidence, how it wasn't tapered with, etc.
There's a real storytelling type skill involved - if you have to include A, B, C, D and E pieces of information through 3 witnesses, and C and D are boring, while E is exciting, how you do it? In what order do you call the witnesses? Do you try to do it all in a chunk or do you spread it out? What if "E" is part of another, more important narrative? How long can you defer C and D to deal with that more important narrative?
***
Another caution about trial watching from afar: I haven't watched this day to day. I guess I've seen parts of 7-10 witnesses testify - and we're up to 25 now. While we have a broad idea of what occurred, the jury is actually sitting there making notes about all 25 witnesses and all items in evidence. While I still think this is a very strong case against AH, it's always difficult to put one's self in the shoes of the collective jury. Part time pundits, unless they're watching the whole trial (and watching jury reactions) have a limited window into a trial.
Was there a juicy pro-state or pro-defense nugget in SW #24's testimony? Probably not. But if there was, it could be missed by nearly everyone except for the jury. Perhaps that theoretical juicy nugget is only significant because it builds on an equally obscure piece of testimony (or unanswered question) by another witness.
Post-trial, if the jury consents to explain its thinking, it's not entirely unusual for all the attorneys to be surprised at the significance the jury assigns to one particular thing or another. At the end of the day, the jury weighs the evidence itself, decides what the facts are, and applies those facts to the law. Theoretically, the attorneys don't need to make any arguments at all. They do of course, but it's not unusual for a jury to come up with its own independent theory of "what happened" - or to accept or discount testimony that everyone else considered to be a no-brainer. This can cut both ways - a jury can acquit in a way that's surprising to anyone not on the jury, but they can also convict.
DennyDoyle'sBoil said:
I've been waiting for this to pop up. From what I can see MA law has two spousal based evidentiary issues:
1) One spouse can refuse to testify when the other is a defendant in a criminal proceeding ("spousal privilege"). Must be invoked by the spouse seeking not to testify. The parties must be married at the time of trial, but there's no rule that they have to be married at the time of the incident. Com. v. Szerlong, 457 Mass. 858, 865 (2010).
However, Com suggests that if a marriage is made partially for the reason of making a witness unavailable to testify, the Court can rule that the spousal privilege is forfeit:
2) A spouses testimony about confidential conversations *during the marriage* can be excluded. Either party can seek this. Obviously, this does not apply here.
As always, Rovin, your commentary is excellent. Did you ever consider becoming a law professor?Rovin Romine said:
On the issue of forfeiture by wrongdoing potentially overcoming the spousal testimonial privilege, doesn't there need to be wrongdoing? Getting married is something that the spouses-to-be have a fundamental constitutional right to do. It looks like the discussion in Com was dicta anyway, but the forfeiture by wrongdoing cases I remember usually involved something clearly wrong (kidnapping or murder) perpetrated to keep a witness off the stand, which was cited by the judge as a basis for overruling a hearsay and/or confrontation clause objection. It is also similar to the crime/fraud exception to attorney-client privilege: you need ongoing bad stuff as a basis for overruling the objection.
Rovin Romine said:
Good stuff. Seems like a bit of a weird one -- probably a bit hard for the prosecution to meet its burden if the spouses can come up with a good enough story about timing. I suppose that the timing, at this point, would probably go a long way to carrying the prosecutor's burden here given that they haven't been married yet, but I would think this is much harder than a case where a marriage occurs sort of out of the blue and there isn't even an engagement until it becomes an issue. You know, if they can come up with a credible story about why they picked a particular date -- "always wanted to get married on the same day my grandmother did" -- then it might sell or at least be hard for the prosecution to meet its burden.
It would definitely be an interesting sideshow -- I would imagine the judge probably has to hold an evidentiary hearing outside the presence of the jury, and one could imagine it getting a bit down in the weeds. ("He asked me to be his best man two months ago.") I would think Hernandez probably has to testify, and I guess there's some risk to the defense of letting that happen, even outside the presence of the jury.
Kevin Youkulele said:
I'm not deeply versed on the issue. I do know that the intention of the immunity is to protect the sanctity of marriage - the idea being that one's confidences in one's spouse are similar to one's confidences in a priest or doctor. However, the exact form of immunity is statutory, albeit based on common law originally. Also, keep in mind that spousal immunity (so far as I know) predates the concept of "no fault" divorce. Meaning that the testimony of one spouse against another had completely different implications vis a vis the marriage.
***
Here's a link to a blog discussing a recent MA case on spousal immunity/forfeiture: http://lawprofessors.typepad.com/evidenceprof/2010/09/804b06-com-v-szerlong-ne2d-2010-wl-3530019mass2010.html
***
I think, after reading the case linked there, the equity argument is going to be that since spousal immunity historically exists to protect an existing marriage, one cannot "take advantage" of that - i.e., marry with the intent to invoke spousal immunity in a pending matter. That makes sense to me. Or to limit it further, perhaps one shouldn't be allowed to invoke if one marries after an indictment. Or further, after if one marries trial has commenced. Whatever the practical rule is, there seems to be a reasonable limitation of the privilege to be found. The question is when do we allow a spouse not to testify against their spouse? (This isn't strictly a confrontation clause/hearsay issue, given that immunity has been granted.)
Right now, if MA law holds, one cannot invoke if one marries with the intent to invoke - which is a sort of case by case knowledge based standard. (And yes, we'd need an evidentiary hearing.)
To take the absurdist position of unlimited/unreviewable immunity, a defendant could marry (and subsequently divorce) a key witnesses; get a decent pre-nup and one could essentially buy witnesses who would invoke spousal immunity. It looks like gender won't be a barrier to that in the near future. (I'm not making a slippery slope argument, but just pointing out that this is a limited privilege to begin with - for good reason.)
Also, despite immunity, it's not like Jenkins has clean hands in this matter. She's potentially an accessory after the fact to murder.
While there's a Constitutional right to marry, there's no Constitutional right to invoking spousal privilege. Perhaps AH and SJ didn't get married because they know the privilege wasn't going to work - and it may have created additional civil liability for her. (Just shooting in the dark on that last one.)
Edit - sorry for the ton of edits on this one.
Thanks for the discussion. The blogger whose post you linked seemed to have the same concern I did--that it isn't actually "wrongdoing"--but the forfeiture by wrongdoing doctrine in MA seems to cover any act with the intent and effect of procuring a witness's unavailability. Your reductio ad absurdum also illustrates that there must be some limitation on the privilege to prevent abuse (at least under the assumption that the extreme serial monogamy you envisage would otherwise be possible and effective).Rovin Romine said:
I missed a big chunk of recent testimony.
It seems like the state has introduced evidence that AH's DNA was on a bullet casing recovered from the rental car. However, the casing was touching a piece of gum chewed by AH. So there's a real question as to whether the DNA was originally on the casing, or was transferred from the gum got on the casing.
This is an interesting quasi-red herring issue. Clearly, it's possible that all this shows is that gum AH chewed touched the empty casing. The gum could pre or post date the shooting. In isolation that's sort of a victory for the defense and they should play up the fact that there's no DNA evidence directly tying AH to the casing itself - and especially that there's no evidence he handled the bullet (before it was shot) or the casing (after it was shot). Or that even knew the casing was in the car.
However, it's yet another nail in the coffin. The reason why is that the DNA evidence isn't *inconsistent* with the theory that AH orchestrated or oversaw the shooting. Nor is it inconsistent with the theory that AH owned a .45, shot OL with it, left a casing in the car, and later had his GF dispose of the gun. (Though I'm sure there will be some question as to how the casing got from the shooting area (where other casings were found) into the car itself.)
I'm sure there's going to be some argument about the malleability of gum, when and where the gum was found, whether the chewed gum could have been left in the car earlier/later that day by AH, etc. Again though, that sort of runs aground on the rocks of the state's video showing AH in the car/coming home with an object in his hands.
The defense will certainly throw the opening statements back at the prosecution (I believe the prosecutor said DNA was found on the casing) - "How misleading!" will be the cry. And in that sense the prosecutor made a mistake - you never want to over reach or insult the jury's intelligence by making "sneaky" conclusions for them. (If the prosecutor's smart, he'll own that misstatement (if there was one) in his opening, robbing the defense of any thunder on the issue.) So, it's a quasi-red herring, but one the defense can still try to parley into reasonable doubt.
This trial is really an excellent example of how many small pieces of circumstantial evidence can be used to build a case.
It seems like the state has introduced evidence that AH's DNA was on a bullet casing recovered from the rental car. However, the casing was touching a piece of gum chewed by AH. So there's a real question as to whether the DNA was originally on the casing, or was transferred from the gum got on the casing.
This is an interesting quasi-red herring issue. Clearly, it's possible that all this shows is that gum AH chewed touched the empty casing. The gum could pre or post date the shooting. In isolation that's sort of a victory for the defense and they should play up the fact that there's no DNA evidence directly tying AH to the casing itself - and especially that there's no evidence he handled the bullet (before it was shot) or the casing (after it was shot). Or that even knew the casing was in the car.
However, it's yet another nail in the coffin. The reason why is that the DNA evidence isn't *inconsistent* with the theory that AH orchestrated or oversaw the shooting. Nor is it inconsistent with the theory that AH owned a .45, shot OL with it, left a casing in the car, and later had his GF dispose of the gun. (Though I'm sure there will be some question as to how the casing got from the shooting area (where other casings were found) into the car itself.)
I'm sure there's going to be some argument about the malleability of gum, when and where the gum was found, whether the chewed gum could have been left in the car earlier/later that day by AH, etc. Again though, that sort of runs aground on the rocks of the state's video showing AH in the car/coming home with an object in his hands.
The defense will certainly throw the opening statements back at the prosecution (I believe the prosecutor said DNA was found on the casing) - "How misleading!" will be the cry. And in that sense the prosecutor made a mistake - you never want to over reach or insult the jury's intelligence by making "sneaky" conclusions for them. (If the prosecutor's smart, he'll own that misstatement (if there was one) in his opening, robbing the defense of any thunder on the issue.) So, it's a quasi-red herring, but one the defense can still try to parley into reasonable doubt.
This trial is really an excellent example of how many small pieces of circumstantial evidence can be used to build a case.
Kevin Youkulele said:
I think it would be better for society if there was some kind of routine legislative codification/clarification of judicial precedents. Right now we've got judges making very good calls on legitimate issues - but they sometimes have to do so under odd language or through seemingly unrelated doctrines. Some of those calls get incorporated by legislatures into the status themselves. Some of them just kind of moulder in judicial reporters, leaving the now inaccurate "plain language" statutes sitting on the books. (Sort of talking "past" you to a general audience - apologies.)
Witness currently testifying (Timothy Woods) to how lab tests for MJ is performed. Could be interesting to some if you want to tune in or check it out in the video archives.
Also, the defense cross is nice. Woods was very professional and together. So the defense used him as an example of what one should do when collecting evidence - they'll obviously contrast him with a more incompetent (and important) witness in closing.
Also, the defense cross is nice. Woods was very professional and together. So the defense used him as an example of what one should do when collecting evidence - they'll obviously contrast him with a more incompetent (and important) witness in closing.
Rovin Romine said:
Definitely the best(?) witness to date, at least from a viewer's standpoint. Very smart, well prepared, and professional. I was hoping the defense was going to try to go toe to toe with him over something, anything (saw it for a brief second with how much weed could fit in a bowl). He seemed to have all of his ducks in a row.
DaughtersofDougMirabelli said:
Operating on the assumption that not all SOSH members are equally. . .hmm. . .sophisticated(?), I was trying to find a picture that shows common MJ weights/volumes. I had very good one awhile ago that used quarters next to actual MJ to show the difference between a gram, a half-ounce, an ounce, etc. Can't find it now, and my google-fu sucks on this.
Can any of our sleuths help out?
An ounce of marijuana would fit into a gallon bag, maybe 2/3 full.
Half ounce would fill a sandwich baggie.
An eighth could probably fit into your cupped hand.
A gram is pretty small, a good sized blunt fits about a gram.
Half ounce would fill a sandwich baggie.
An eighth could probably fit into your cupped hand.
A gram is pretty small, a good sized blunt fits about a gram.
Don't forget about bud density, and its absorption or loss of water depending on the humidty of the air around it. Budghazi baby!
DegenerateSoxFan said:
This. That half looks light as fuck to me, but I suppose it's just dense.
Today - State's Witness, Farhan.
He's a recent US citizen who was working as a clerk in the convenience store AH bought gas, gum and a black and mild cigar.
It's worth watching the archived video insofar as it shows the danger of calling a witness without prepping that witness. There was a bog-down over Farhan identifying what kind of gum was purchased by AH. Basically the prosecutor wanted to use a document to refresh Farhan's memory, but Farhan had no idea what was going on. The defense attorney jumped in and the judge started sustaining leading/non-responsive question objections. (The prosecutors in this case lead all the time - sometimes that's good, sometimes that's bad.) I'm pretty sure every thing got in that the prosecution wanted to get in. There's also pretty much no reason why that stuff couldn't come in.
Also, the defense then went into issues on cross (AH's demeanor) that they objected to on direct.
It's sort of textbook "How to Wast the Jury's Time."
***
Also, this proceeding is excessively hearsay-shy. There's a lot of questions that dance around the idea that one police officer called another, and in response that officer a) drove to the scene, b) made another phone-call, etc. This sort of thing isn't exactly hearsay since one officer speaking to another generally falls under the "fellow officer rule" *and* there's an exception - the information communicated between the officers isn't offered for the truth of that information, but merely to show that after Officer A told Officer B "Hey, there's a dead body here," that information caused Officer B to drive down and look at the body. While there are some statements between officers that can be grossly prejudicial (causing a mistrial), I'm still a bit surprised at how much the prosecution dances around in soliciting testimony.
Usually what I see is - "Officer, who are you? Who do you work for? Do you know why you're here today? Without going into too much detail, when and how did you get involved in the case? What are your general responsibilities for this type of case? What did you do first? Why did you do that? What did you see when you got there? When you say "officers" - how many were there? OK - then what did you do? Why? OK, what did you do next? Could you explain that to the jury? etc. etc."
Here we have, "Did someone call you? Who was it? As a result of that call, what did you do? Was there a blue tent erected on the scene toward the rear corner of the lot? (leading) etc. etc. "
He's a recent US citizen who was working as a clerk in the convenience store AH bought gas, gum and a black and mild cigar.
It's worth watching the archived video insofar as it shows the danger of calling a witness without prepping that witness. There was a bog-down over Farhan identifying what kind of gum was purchased by AH. Basically the prosecutor wanted to use a document to refresh Farhan's memory, but Farhan had no idea what was going on. The defense attorney jumped in and the judge started sustaining leading/non-responsive question objections. (The prosecutors in this case lead all the time - sometimes that's good, sometimes that's bad.) I'm pretty sure every thing got in that the prosecution wanted to get in. There's also pretty much no reason why that stuff couldn't come in.
Also, the defense then went into issues on cross (AH's demeanor) that they objected to on direct.
It's sort of textbook "How to Wast the Jury's Time."
***
Also, this proceeding is excessively hearsay-shy. There's a lot of questions that dance around the idea that one police officer called another, and in response that officer a) drove to the scene, b) made another phone-call, etc. This sort of thing isn't exactly hearsay since one officer speaking to another generally falls under the "fellow officer rule" *and* there's an exception - the information communicated between the officers isn't offered for the truth of that information, but merely to show that after Officer A told Officer B "Hey, there's a dead body here," that information caused Officer B to drive down and look at the body. While there are some statements between officers that can be grossly prejudicial (causing a mistrial), I'm still a bit surprised at how much the prosecution dances around in soliciting testimony.
Usually what I see is - "Officer, who are you? Who do you work for? Do you know why you're here today? Without going into too much detail, when and how did you get involved in the case? What are your general responsibilities for this type of case? What did you do first? Why did you do that? What did you see when you got there? When you say "officers" - how many were there? OK - then what did you do? Why? OK, what did you do next? Could you explain that to the jury? etc. etc."
Here we have, "Did someone call you? Who was it? As a result of that call, what did you do? Was there a blue tent erected on the scene toward the rear corner of the lot? (leading) etc. etc. "
DegenerateSoxFan said:
Until the state started using hermetically sealed storage, it used to be very popular to move to reweigh the MJ in trafficking cases - you'd often get a significant shrinkage from prolonged storage in air-conditioned evidence lockers.
Defense is now crossing the detective who pulled evidence from the enterprise rent a car dumpster.
The issue is whether the evidence was properly collected. This is sort of a hard and soft issue. The hard issue is whether improper collection taints the evidence physically to the point where it's unreliable as evidence (or whether the evidence is potentially inadmissible due to a procedural meltdown - but that's usually addressed via motion prior to trial). The soft issue is that, if the evidence itself is good, whether the police violated internal policy/best practices (i.e., are clownish) and whether those violations amount to something that might contribute to "reasonable doubt" that the defendant committed the crime. In a case with one or two pieces of key evidence, the "soft" issue carries some weight. In a case with many pieces of evidence, any particular screw up (unless it's egregious) won't carry as much weight.
***
Also, the defense attorney (Sultan) just stepped in it. The detective works for the state police and is assigned to the Bristol County's DA's office. Sultan asked the usual questions about the witness working with the prosecutors. He should have left it at that. Instead, he went further and asked the detective if "it was fair to say he was part of the prosecution team?" To which the detective respectfully/somewhat confusedly responded that he was part of the "law enforcement team." When Sultan pursued this, and asked if he "was part of the law enforcement team that's assisting the prosecution in this case," the detective clarified that "they" prosecute and his job was to supply evidence. The detective then forthrightly admitted that he does work with them and that he spoke with the DA "countless" times about the case (which makes sense.) Ouch. It wasn't painfully drawn out but still, ouch.
You can't ask the jury to trust you (that there's more-or-less a conspiracy to prosecute your client) and then give one of the prime detectives you're going after an open-ended softball like that. Plus it makes you look as though you're not really clear about who does what. (You can't effectively suggest the prosecution dropped the ball unless you can convince the jury you know the rules of the game and who should be doing what.) Plus it makes the detective look very reasonable - and if the detective refuses to overreach in his subsequent testimony, your "police are biased" argument goes "pffffsstt."
Perhaps the post-lunch continuation of the cross will be better. But the break for lunch sort of cements the impression of this witness.
So, if you want to see a witness manhandle a defense attorney/torpedo the defense argument (not as dramatic in the moment as it sounds) check out the first 2 minutes of cross.
Again, who knows what the Jury thinks of Sultan/the defense at this point? Also, this is just one witness. So we shouldn't read too much into this. Still, with the caveat that everyone screws up at some point, I'd be kicking myself for weeks if I did something like that.
The issue is whether the evidence was properly collected. This is sort of a hard and soft issue. The hard issue is whether improper collection taints the evidence physically to the point where it's unreliable as evidence (or whether the evidence is potentially inadmissible due to a procedural meltdown - but that's usually addressed via motion prior to trial). The soft issue is that, if the evidence itself is good, whether the police violated internal policy/best practices (i.e., are clownish) and whether those violations amount to something that might contribute to "reasonable doubt" that the defendant committed the crime. In a case with one or two pieces of key evidence, the "soft" issue carries some weight. In a case with many pieces of evidence, any particular screw up (unless it's egregious) won't carry as much weight.
***
Also, the defense attorney (Sultan) just stepped in it. The detective works for the state police and is assigned to the Bristol County's DA's office. Sultan asked the usual questions about the witness working with the prosecutors. He should have left it at that. Instead, he went further and asked the detective if "it was fair to say he was part of the prosecution team?" To which the detective respectfully/somewhat confusedly responded that he was part of the "law enforcement team." When Sultan pursued this, and asked if he "was part of the law enforcement team that's assisting the prosecution in this case," the detective clarified that "they" prosecute and his job was to supply evidence. The detective then forthrightly admitted that he does work with them and that he spoke with the DA "countless" times about the case (which makes sense.) Ouch. It wasn't painfully drawn out but still, ouch.
You can't ask the jury to trust you (that there's more-or-less a conspiracy to prosecute your client) and then give one of the prime detectives you're going after an open-ended softball like that. Plus it makes you look as though you're not really clear about who does what. (You can't effectively suggest the prosecution dropped the ball unless you can convince the jury you know the rules of the game and who should be doing what.) Plus it makes the detective look very reasonable - and if the detective refuses to overreach in his subsequent testimony, your "police are biased" argument goes "pffffsstt."
Perhaps the post-lunch continuation of the cross will be better. But the break for lunch sort of cements the impression of this witness.
So, if you want to see a witness manhandle a defense attorney/torpedo the defense argument (not as dramatic in the moment as it sounds) check out the first 2 minutes of cross.
Again, who knows what the Jury thinks of Sultan/the defense at this point? Also, this is just one witness. So we shouldn't read too much into this. Still, with the caveat that everyone screws up at some point, I'd be kicking myself for weeks if I did something like that.
Huh. Not lunch.
Apparently defense attorney Rankin represented one of the state witnesses four years ago. AH waives any conflict and the trial continues.
Apparently defense attorney Rankin represented one of the state witnesses four years ago. AH waives any conflict and the trial continues.
It looks like Sultan's having a bad time. I don't know if he's asking these questions because he's sitting on contradictory pieces of information, but there wasn't any direct impeachment of the witness.
The witness is doing a nice job of not overreaching and being appropriately vague on particulars - which makes Sultan looks like kind of a clown. No one likes a defense attorney who tries to badger a witnesses with "what color were his shoelaces?" type nitpicking questions.
Sultan got obliquely burned on the cell-phone question. (Detective pointed out that people lie about where evidence is.)
Sultan got some traction on the extent of the search in the house - the videotaping of all rooms, photographing the house. The suggestion is that the police exceeded the scope of the warrant. (But that issue shouldn't really be in front of the jury - the admissibility of evidence is a question of law for the judge.)
Sultan did a decent job on the whole "bed of the pickup truck" v. "evidence bag" issue. But the bottom line is that the detective took garbage from the dumpster and temporarily moved it to the bed of his pickup truck, then put it into an evidence bag - but there's no indication that harmed the evidence in any way. Or, as the detective said: "I didn't realize there was an accepted practice to recovering evidence from a dumpster. It's a dumpster."
Sultan seems a bit tired - he's not asking followup questions that illustrate the significance of his line of questioning.
***
Redirect:
The dumpster picking crew wore gloves.
Dumpster isn't a sterile environment to begin with.
***
Also, the State needs to learn how to object on the basis of relevance.
The witness is doing a nice job of not overreaching and being appropriately vague on particulars - which makes Sultan looks like kind of a clown. No one likes a defense attorney who tries to badger a witnesses with "what color were his shoelaces?" type nitpicking questions.
Sultan got obliquely burned on the cell-phone question. (Detective pointed out that people lie about where evidence is.)
Sultan got some traction on the extent of the search in the house - the videotaping of all rooms, photographing the house. The suggestion is that the police exceeded the scope of the warrant. (But that issue shouldn't really be in front of the jury - the admissibility of evidence is a question of law for the judge.)
Sultan did a decent job on the whole "bed of the pickup truck" v. "evidence bag" issue. But the bottom line is that the detective took garbage from the dumpster and temporarily moved it to the bed of his pickup truck, then put it into an evidence bag - but there's no indication that harmed the evidence in any way. Or, as the detective said: "I didn't realize there was an accepted practice to recovering evidence from a dumpster. It's a dumpster."
Sultan seems a bit tired - he's not asking followup questions that illustrate the significance of his line of questioning.
***
Redirect:
The dumpster picking crew wore gloves.
Dumpster isn't a sterile environment to begin with.
***
Also, the State needs to learn how to object on the basis of relevance.
joe dokes said:
That's a good rule. I was specifically thinking about Sultan asking 5-6 questions in a row about if anyone in the police leaked information to the press. It's not relevant. Sometimes it's good to point that out to the jury at the moment.
So HRB last page deemed the prosecutors inept and the defense great and AH should be ready to sign with the Ravens in time for training camp.
Seems based upon your recent posts that may not be the case.
What's your opinion now of the two legal teams?
Seems based upon your recent posts that may not be the case.
What's your opinion now of the two legal teams?
NortheasternPJ said:
With the caveat I have only watched spottily, I can say that neither side seems to have distinguished itself as "great." I'd say, overall, that they both seem "solid enough" with what they have to work with. Pros and Cons.
(Also, my personal preferences on how to do things certainly aren't all attorneys would do things - how they would "play to their own strengths.")
Right now the facts seem to strongly favor the prosecution. In a case with a wide array of evidence, the prosecution diminishes the risks of flaws in any one piece of evidence or one witness. So, while key witnesses could still implode and lose the case (for either side), we don't seem to be in a position where a single brilliant cross or impeachment or argument is going to radically shift the momentum of the trial.
Every trial is unique. Every trial carries the possibility for a lucky and skilled advocate to significantly affect the jury's deliberations. However, trials are not equal playing fields where the isolated skill of the defense is pitted against the isolated skill of the prosecution. Trials are bound by random facts most often given through somewhat randomly selected human witnesses, decided upon by a jury who may or may not harbor secret biases.
Prosecution just introduced home surveillance video of OL getting into AH's Altima an hour before the shooting. It's from a neighbor across the street.
There are multiple cameras recording the same event. They're black and white, and kind of grainy and distant though. (But again, cellphone records, etc. bolster this.)
It's certainly a light colored car. Probably an Altima (but I'm not a good car model spotter). There's a driver and a front passenger, but no facial details available.
There are multiple cameras recording the same event. They're black and white, and kind of grainy and distant though. (But again, cellphone records, etc. bolster this.)
It's certainly a light colored car. Probably an Altima (but I'm not a good car model spotter). There's a driver and a front passenger, but no facial details available.
Looks like there's some fireworks between the judge and the prosecution re: introducing OL's phone texts, or letting OL's sister testify that she sent or received texts from OL.
While we don't know what happened at sidebar, I had mentioned earlier in the case that while OL's texts were presumptively out, there was always a chance they could be coming in later. Also, that their associated data (the texting sans the language of the texts themselves) could/should probably come in.
We do know that after the sidebar, the defense was apparently willing to stipulate that OL was alive up to the point that he sent his last text (3:30 AM). The state didn't want to stipulate to that without considering the issue.
Hard to say how important this is without knowing the alternative to the stipulation. However, since the stipulation is favored by the defense, one can assume that a) the state can introduce the stipulated information anyway, and b) the way that they'd introduce that is potentially more damaging than the stipulation itself.
While we don't know what happened at sidebar, I had mentioned earlier in the case that while OL's texts were presumptively out, there was always a chance they could be coming in later. Also, that their associated data (the texting sans the language of the texts themselves) could/should probably come in.
We do know that after the sidebar, the defense was apparently willing to stipulate that OL was alive up to the point that he sent his last text (3:30 AM). The state didn't want to stipulate to that without considering the issue.
Hard to say how important this is without knowing the alternative to the stipulation. However, since the stipulation is favored by the defense, one can assume that a) the state can introduce the stipulated information anyway, and b) the way that they'd introduce that is potentially more damaging than the stipulation itself.
As RR says, sounds like the prosecution wanted to introduce the texts not as hearsay (for the truth of the matter asserted in the texts), but as an "act" that is proof of an independent fact -- that OL was alive until he got in the car. The Defense wants to avoid the words themselves "with NFL" so they are willing to stipulate OL was alive as of 3;30 a.m.
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