Grand Jury should indict Darren Wilson because his claim of self-defense is contradicted by autopsy results and all eyewitnesses

August 22, 2014

Friday, August 22, 2014

Good afternoon:

The St. Louis County grand jury should indict Darren Wilson because the results of the independent autopsy and all of the eyewitnesses contradict his reported claim of self-defense and he has asserted his fifth amendment right to remain silent by refusing to fill out an incident report regarding the shooting.

Game within the Game

Darren Wilson has obviously been discussing his legal predicament with an attorney. As a result of that discussion, he decided not to fill out an incident report on the ground that his statement might tend to incriminate him.

That was a smart but risky move.

Smart because he has a fifth amendment right to remain silent and the members of the grand jury cannot assume that his silence is an admission of guilt.

Risky because he is the only witness who would testify that he shot Mike Brown in self-defense. All of the eyewitnesses have described a murder, not a justifiable homicide in self-defense. Therefore, if he does not testify, the grand jury will have little choice except to indict him for murder.

He could go for the brass ring by agreeing to testify before the grand jury, but he would lock himself into a story by doing so and could still be indicted for murder because his story is contradicted by all of the eyewitnesses.

Recall that the grand jury need only find that there is probable cause to believe that he was not in imminent danger of death or serious injury when he shot an unarmed Mike Brown multiple times, including twice in the head, killing him.

Yee olde bum-rush defense ain’t got no legs since none of the eyewitnesses saw Mike Brown rush the officer and his body was found right where he stopped and turned around to face the officer, 35 feet from the police vehicle.

Looks like he has decided to forgo testifying before the grand jury, in essence conceding that he will be indicted.

He’s in a very difficult situation, but I think he made the right choice.

Don’t forget that his lawyer could not be present, if he testified before the grand jury. There’s danger in them thar hills.

Meanwhile, he can derive comfort from the news today that people have contributed more than $225,000 for his defense at his beg-site.

Meanwhile, the racist right-wing-hate-machine marches on engaging in non-stop victim character assassination by lie and constant media repetition of the racist yee olde bum-rush defense in the court of public opinion until everybody forgets that Mike Brown was executed for jaywalking.

Welcome to Zimmerman II.


Police officers go on trial for killing Kelly Thomas two years ago

December 2, 2013

Monday, December 3, 2013

Good evening:

The trial of two City of Fullerton police officers charged with killing Kelly Thomas, 37, more than two years ago finally got underway today with opening statements. Fullerton is located in conservative Orange County, CA, approximately 25 miles southeast of Los Angeles, and this is the first time in the history of the county that a police officer will stand trial for murder.

Officer Manuel Ramos, 39, is charged with second degree murder and involuntary manslaughter. Officer Jay Cicinelli, 42, is charged with involuntary manslaughter and use of excessive force. A third officer, who is also charged with involuntary manslaughter and use of excessive force, will be tried after this trial concludes because his case was severed from the other two defendants.

Some of you may remember this case, especially if you live in California, because of substantial and continuing community outrage about Thomas’s death and the failure of the police department and the district attorney’s office to arrest and prosecute any of the police officers involved. Months of protests finally led to the resignation of the police chief and a recall election.

Let’s take a look at this tragic case because there is much we can learn from it.

Kelly Thomas was mentally disabled by schizophrenia, homeless and unemployable. CBS News reported today,

Thomas, who some called “Crazy Kelly,” was known around town for his disheveled red beard and erratic behavior and was already familiar to police. Ramos himself had been called on seven previous occasions to remove him from private property and Thomas had been written up for trespassing, urinating in a fountain and vandalism, among other things.

The altercation that led to his death started in much the same way, with Ramos rolling up to a police call about a man who was trying to open car doors at Fullerton’s busy transit center. This time, however, things escalated – and much of it was captured on the surveillance tape that promises to be the trial’s centerpiece.

The body microphones that the officers attach to their uniforms were also working.

The district attorney has provided a preview of the State’s case.

District Attorney Tony Rackauckas hassaid investigators overlaid recordings from the officers’ body microphones with the tape, allowing prosecutors to provide a blow-by-blow narrative of an “impending beating by an angry police officer” and verbatim quotes from the officers and Thomas as the scene unfolded.

Initially, Ramos chides Thomas for his evasive answers: “It seems like every day, we have to talk to you about somethin’ … Do you enjoy it?” Ramos asks Thomas, according to a prosecution transcript.

Within minutes, Ramos grows angry as Thomas refuses to cooperate. He snaps on latex gloves, holds his fists in front of Thomas’ face and says, “Now see my fists? They are getting ready to (expletive) you up.”

Thomas stood up and pulled away, prosecutors said, and Ramos chased him down, tackled him and punched him in the ribs as he pinned him down.

Cicinelli, who arrived moments later, is accused of kneeing Thomas twice in the head and using a Taser on him four times before hitting him in the face with the blunt end of the stun gun eight times. The coroner listed the cause of death as mechanical compression of the thorax, which made it impossible for Thomas to breathe normally and deprived his brain of oxygen.

Kelly Thomas called out to his father for help 30 times during the 10-minute beating.

The defense will be asserting the crazy-meth defense, despite an absence of physical resistance to police authority and no meth metabolites, or any other drugs in Kelly’s blood. They will argue that he was not schizophrenic. Instead, they will claim that his psychotic delusions were caused by a long-term addiction to meth. They are going to engage in as much character assassination as the trial court will permit in an effort to portray Kelly Thomas as an unpredictable, dangerous and violent person.

CBS reports,

Defense attorneys, however, portray a very different encounter and are seeking to introduce evidence that Thomas had a history of violence and suffered from psychotic episodes due to prolonged methamphetamine abuse.

The surveillance video doesn’t begin until 25 seconds into the confrontation and doesn’t show, for example, how Thomas reached repeatedly for Cicinelli’s weapon as they struggled, according to defense motions.

In the audio recordings, Cicinelli can be heard telling others that Thomas must be “on something” because it took three officers to get him in handcuffs. Ramos adds that Thomas tried to bite him through his pants.

The judge will allow defense attorneys to tell the jury about Thomas’ prior conviction for assaulting his grandfather with a fireplace poker and about a restraining order that his mother sought against him after he held her by the throat during an argument.

The defense team also plans to present its own expert who will testify that Thomas had an enlarged heart due to chronic methamphetamine abuse, providing an alternate cause of death.

We have discussed schizophrenia and the plight of the mentally ill in this country beginning with Jarrod Loughner and continuing with James Holmes, Aaron Alexis and the woman who was chased and shot to death by police in Washington, D.C. after she collided with a barrier blocking access to a driveway leading to the White House and sped away in the direction of the Capitol ignoring orders to pull over and stop. Little treatment or services are available for the mentally ill in our country. Federal and state governments basically expect them to stay out of sight and fend for themselves. When police encounter them sleeping on park benches or in alleys behind dumpsters or clusters of garbage cans, they roust and order them to move on. If police arrest them for committing crimes, they take them to jail where they will remain until their cases are processed and they finish serving their sentences. The Los Angeles County Jail houses and treats more of the mentally ill than any mental hospital in the nation. Disgraceful is the best word that I can think of to describe how our nation treats the mentally ill.

Not surprisingly, Kelly Thomas had prior contacts with the police.

Finally, the most likely reason that the trial court severed the third defendant from this trial is that the prosecution will be introducing statements by one or both of the two officers that inculpate the third officer. Assuming they decide not to testify, the third defendant would not be able to cross examine them about those statements. That would violate Sixth Amendment right to confront his accusers.

By severing him out of this case and trying him after it’s over, he would be able to call them during the defense case and cross examine them as hostile witnesses, if necessary, since a guilty or not guilty verdict would have ended their legal jeopardy terminating their Fifth Amendment right to remain silent.

I sincerely hope that this case, together with the others I have mentioned, will focus national attention and discussion about the plight of the mentally ill.

We need to create and fund a comprehensive national mental health treatment plan.

The trial is expected to last six weeks.

This is our 780th post.


Will the defendant testify or not testify?

July 6, 2013

Saturday, July 6, 2013

Good afternoon:

I write regarding whether the defendant should testify.

I advised my clients not to testify, unless there was some specific reason why I believed they had to testify. That reason typically would involve testifying about something that the jury would not otherwise know unless the client testifies. This is a common occurrence is self-defense cases and why most lawyers will say that a client must testify in such a case.

As Assistant State Attorney Richard Mantei said yesterday, the use of deadly force in self-defense is unlawful unless the defendant reasonably believed that he was in imminent danger of being killed or suffering serious injury when he used deadly force. The reasonableness requirement means that the defendant’s conduct must be evaluated objectively by comparing his conduct to the conduct of a reasonable person in the same situation.

The jury of 6 women, 5 of whom are mothers, will decide whether the defendant acted reasonably.

The defendant is the only person who can tell them whether he believed he was in such danger when he shot Trayvon Martin. According to various witnesses who have testified, he described a situation to them that, if true, probably would objectively constitute such a danger. For the past year, his lawyer, Mark O’Mara has been aggressively selling the defendant’s story on national television and waiving the two bloody cell phone photographs of the back of the defendant’s head and his face as proof that the defendant acted reasonably. I think the national media has uncritically accepted O’Mara’s sales job and shamelessly promoted it.

The critical question, however, is whether the 6 women, 5 of whom are mothers, believe what the defendant told others. They are not required to believe anything he said. I doubt they will believe him, given his many contradictory statements, implausible claims, and the forensic evidence, particularly the DNA evidence, which proves that Trayvon Martin did not hit him 20-30 times in the face, grab his head and repeatedly slam it into a concrete sidewalk, or attempt to smother him by placing his hands over the defendant’s nose and mouth.

I believe the prosecution has proved beyond a reasonable doubt that the defendant provoked the encounter with Trayvon Martin by following him in a vehicle and then on foot after Trayvon attempted to elude him. He hunted him down and attempted to restrain him contrary to a request by the police dispatcher not to follow him and he never identified himself or explained why he was restraining him. Under these circumstances, Trayvon Martin was entitled to use reasonable force to defend himself, escalating to deadly force when the defendant pulled out his gun. Therefore, Trayvon Martin used lawful force to defend himself and the defendant’s use of force was unlawful.

If he were my client, I would tell him that this is my assessment.

If he responded with, “What about my mother identifying me as the person who screamed?” I would say she did not do so unequivocally. Sybrina Fulton did and she was credible.

I would tell him that he gets to make the call regarding whether to testify. Given my assessment that the jury is going to convict him, I would also tell him that his only chance to avoid conviction would be to testify and persuade those 6 women, 5 of them mothers, that they should not convict him.

I would explain the following information.

The burden of proof in all criminal cases in this country is on the prosecution to prove beyond a reasonable doubt that the defendant committed the crime charged. The defendant is presumed innocent throughout the trial and the jury must find him “not guilty” unless the prosecution overcomes the presumption of innocence by proof beyond a reasonable doubt.

The term “beyond a reasonable doubt” is generally defined as such a doubt as would exist in the mind of a reasonable person after fully and fairly considering all of the evidence or lack of evidence. The prosecution is not required to prove guilt beyond all doubt, just beyond a reasonable doubt. Generally, a reasonable doubt is a doubt for which a reason exists, as opposed to a speculative doubt or a mere suspicion. The Florida instruction states that a person is convinced beyond a reasonable doubt if they have an abiding belief in the truth of the charge. An abiding belief is a long lasting belief. The idea is that a juror is convinced beyond a reasonable doubt if they are sure that they will not change their mind sometime in the future due to some doubt they have about the strength of the evidence.

The definition of reasonable doubt is circular, which frustrates jurors who expect and want reasonable doubt quantified. For example, preponderance of the evidence, which is the burden of proof in a civil case, is defined as proving that a proposition is more likely so than not so or supported by more than 50% of the evidence. There is no equivalent percentage of certainty used to define reasonable doubt. I believe most trial lawyers and judges would agree that it’s possible that different juries hearing the same case could reach different conclusions. This is why attorney voir dire during jury selection and the use of cause and peremptory challenges to select a jury are so critically important.

Our legal system guards and protects the sanctity of the jury room and juror deliberations. A jury is never required to explain or justify its verdict. As a result, a jury actually gets to decide what constitutes reasonable doubt, even though they are never told that they have this power. The jury is a reflection of the community and it acts as the conscience of the community when it decides whether the prosecution has proved the defendant’s guilt beyond a reasonable doubt.

I would tell him that if he can express his humanity and touch their hearts, he has a chance at manslaughter.

I would also tell him that he must tell the truth without any bullshit like he uttered on the Hannity Show.

He must admit when he lied, to whom he lied, and why he lied.

He must convince them that he acted out of fright, not anger.

I think he’s going to testify for all the wrong reasons because he has always been able to lie his way out of trouble.

Ain’t going to work this time.

I have one final reason for believing he will testify. His lawyers did not voir dire the prospective jurors on his right to remain silent and not testify. I always did that in my cases to make sure the jurors understood that they could not use his silence against him by presuming he had something to hide.


Zimmerman: The immunity hearing should not be combined with the trial

April 30, 2013

Tuesday, April 30, 2013

Good evening:

The immunity hearing should not be combined with the trial for the following reasons:

A defendant has a 5th Amendment right to remain silent throughout the trial. If the Court were to combine the trial with an immunity hearing, that would put pressure on the defendant to testify during the defense case.

Depending on how well the prosecution’s case-in-chief might have gone, the defense might be tempted after the prosecution rests to rest and not put on a defense. However, because the burden of proof in the immunity hearing is on the defense, the defendant would have to testify. This is a classic example of compelling a defendant to testify and possibly incriminate himself by doing so. The 5th Amendment expressly prohibits compelling a defendant to incriminate himself.

That would not be the case if the immunity hearing were held before trial. The defendant could testify in the immunity hearing without waiving his right to remain silent at the trial.

Another reason not to combine the two is that the order of presentation differs. The State goes first at trial, but the defense goes first in an immunity hearing. Strategy can change dramatically depending on whether a party has the burden of proof. Whether a party goes first or second will affect the evidence it will present, its choice of witnesses, and the order in which the witnesses will be called.

Finally, the purpose of an immunity hearing is to identify strong self-defense cases early on and to immunize those defendants from criminal and civil liability so that they do not have to endure the psychological and emotional wear and tear of living a life in limbo while possibly in custody for a year or more before trial. Saves the expense too for all concerned. Combining the immunity hearing with the trial cancels out all those advantages.

Finally, just because a defendant has a fundamental right to an immunity hearing does not mean that he cannot waive that right as the defendant did today.

500 people are going to be summoned to court for jury service in this case and it makes no sense to go to the time, trouble and expense to do that just because the defendant wants to wait and see how jury selection and the prosecution’s presentation of its case is going before he decides whether to seek immunity.

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Combining the immunity hearing with the trial in the Zimmerman case is a terrible idea (Part II)

March 8, 2013

Friday, March 8, 2013

Good Afternoon:

I have done more research on the Florida SYG immunity hearing and concluded that the legislature intended that the hearing occur prior to trial. The Florida Supreme Court agrees.

The Florida legislature created confusion when it did not provide a procedure for asserting, litigating and deciding a defendant’s claim of immunity from criminal prosecution and civil liability under the SYG law.

In Dennis v. State, 51 So.3d 456, 462 (2010), the Florida Supreme Court stated,

While Florida law has long recognized that a defendant may argue as an affirmative defense at trial that his or her use of force was legally justified, section 776.032 contemplates that a defendant who establishes entitlement to the statutory immunity will not be subjected to trial. Section 776.032(1) expressly grants defendants a substantive right to not be arrested, detained, charged, or prosecuted as a result of the use of legally justified force. The statute does not merely provide that a defendant cannot be convicted as a result of legally justified force.

(Emphasis supplied)

In Dennis, the Court approved a procedure to conduct SYG immunity hearings developed by the trial court in Peterson v. State, 983 So.2d 27 (Fla. 1st DCA 2008). That procedure requires the defendant to file a motion before trial requesting immunity pursuant to Rule 3.190(b).

In Peterson, the First District Court of Appeals set forth the procedure to be followed after the defendant files the motion to initiate the process. The Court said at pages 29-30:

In the absence of a procedure for handling these matters, we find guidance from the Colorado Supreme Court’s decision in People v. Guenther, 740 P.2d 971 (Colo. 1987). In that case, the court decided that Colorado’s similar immunity statute authorized a trial court to dismiss a criminal prosecution at the pretrial stage and did not merely create an affirmative defense for adjudication at trial. Id. at 976. The court further determined that a defendant raising the immunity would have the burden of establishing the factual prerequisites to the immunity claim by a preponderance of the evidence. Id. at 980. The court imposed the same burden of proof as it would in motions for postconviction relief or motions to suppress. Id.

(Emphasis supplied)

The immunity hearing would resemble a trial with four important exceptions:

(1) The order in which the parties present their respective cases would be reversed with the defendant going first,

(2) Rather than being presumed innocent with the right to remain silent and no obligation to testify, the defendant would have the burden of proof,

(3) The burden of proof would be by a preponderance of the evidence (i.e., more probable than not), and

(4) The judge would be the fact-finder and decide the outcome, instead of a jury.

Judge Nelson told Mark O’Mara that, if the defense wanted an immunity hearing, she wanted to hold it prior to trial sometime during the last two weeks of April. She reserved those two weeks for the hearing and told O’Mara to file an appropriate motion prior to that time, if the defendant decided to ask for one.

At the hearing on Tuesday, she asked him if he still wanted her to reserve those two weeks because she wanted to use that time to schedule other matters, if he did not intend to ask for a hearing, . He responded that he would not be asking for a hearing during those two weeks.

He added that he was not waiving the hearing; rather, he was considering “combining it with the trial.” She acknowledged that she understood he was not waiving the hearing. However, he did not request and she did not agree to combine it with the trial. Whether she will agree to do so has yet to be decided.

O’Mara would have to file a motion to dismiss pursuant to Florida Rule of Criminal Procedure 3.190(b) asking her to combine the immunity hearing with the trial and she would have to grant his motion for that to occur.

I published a post here two days ago in which I explained why combining the two matters could create constitutional error resulting in a reversal and remand for a new trial, if Judge Nelson denies the motion for immunity and the jury convicts the defendant.

There is little point to having an immunity hearing, if it is going to be combined with a trial at the risk of injecting constitutional error into the trial that requires convictions to be reversed and remanded for a new trial.

Finally, please know that I made a mistake in some comments earlier this week when I said Florida has a rule that requires immunity hearings to be held no later than 45 days before trial. Florida does not have such a rule. I recalled Judge Nelson’s statement that she wanted to schedule an immunity hearing not less than 45 days before the June 10 trial date, if the defense decided to request one, and mistakenly assumed there was a 45-day rule. I realized my mistake while researching to write this article. I apologize for any confusion that might have caused.

I note parenthetically that Florida could use such a rule, but it’s up to the Florida Supreme Court to decide whether to promulgate one.

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The Decision From Hell (Part 2)

December 28, 2011

Yesterday, in Part 1 of this post, I critiqued the first part of the Court of Appeals decision affirming the trial court’s denial of her pretrial motion to suppress evidence.

I concluded that the Court of Appeals erred because it improperly relied on evidence (1) obtained after the deputy stopped Crane Station and (2) facts invented by the trial court. The Court of Appeals also (3) erroneously claimed that her appellate lawyer had failed to challenge any of the trial court’s findings of fact. I provided links to the decision by the Court of Appeals and Crane’s Opening Brief on Appeal and her Reply Brief.

In a related post today entitled How Could Judge Taylor Forget Garcia v. Commonwealth, I discussed a decision he wrote reaching the opposite conclusion on a set of materially indistinguishable facts. You may find that to be an interesting and helpful follow-up to Part 1 since he is one the three judges who decided her case. I also referenced Crane’s Petition for Rehearing of the decision by the Court of Appeals just so there is no misunderstanding or confusion regarding whether her lawyer challenged the findings of fact.

This first part of the decision by the Court of Appeals stands for the proposition that a motion to suppress based on an argument that a police officer lacked a reasonable suspicion to stop someone can be decided on the basis of information he acquires after the stop. Likewise an argument that a police officer lacked probable cause to arrest can be decided on the basis of evidence that turns up after the arrest. Both principles are contrary to long established federal and state case law and eviscerate the Fourth Amendment.

Therefore, the Kentucky State Supreme Court must grant discretionary review and reverse the Court of Appeals. If it does not, trial courts across the state will create havoc by following the decision by the Court of Appeals and denying motions to suppress in violation of a long line of state and federal cases. Eventually, the Supreme Court would have to grant review in one of those cases and overrule the Court of Appeals in the Leatherman case.

That is why it is necessary to grant discretionary review.

Today, I will critique that part of the decision that deals with Crane’s statement that her watch had fallen behind the seat during the ride to the hospital and her request for the deputy’s assistance to retrieve her watch for her.

Tomorrow in Part 3, I will deal with the final issue; namely, the decision by the Court of Appeals that the trial court properly denied her motion for a directed verdict of acquittal on the DUI charge. Due to the length of today’s article, I have decided that I should discuss the latter issue in a separate post.

When Deputy McGuire assisted Crane to get out of the back seat of his patrol vehicle at the hospital (because she was handcuffed with her hands behind her back), she told him that her watch had fallen off her wrist and dropped behind the rear seat during the ride. She asked him to please retrieve it for her. That is undisputed.

At the preliminary hearing, McGuire testified that, after they returned to his vehicle following the blood draw, he pulled the seat back, saw the watch and the suspected controlled substance near it, and seized both of them. When her lawyer asked him if he could see the two items before he pulled the seat back, he said. “No.” However, at the suppression hearing, he testified that he saw both items in “plain view” sitting at the top of the seatbelt crack next to where she was sitting when he opened the door to assist her to get out of his vehicle at the hospital.

Those two statements are mutually exclusive. They cannot both be true and there is no question that Crane’s lawyer was entitled to challenge the deputy’s credibility at trial by impeaching him with his prior inconsistent statement under oath at the preliminary hearing. Nevertheless, the trial judge sustained an improper objection by the prosecutor to that line of inquiry preventing him from eliciting the inconsistent statement.

Why did the trial judge do that?

Before jury selection, the trial judge granted the prosecutor’s motion in limine (i.e., at the beginning) for an order preventing the defense from introducing Crane’s statement about her watch and her request for his assistance in retrieving it on the ground that her statement was inadmissible hearsay.

I have addressed this issue previously in Hearsay, Part Deaux.

The judge’s ruling was improper because the statement was not hearsay, since it was not offered to prove the truth of the matter asserted in the statement. It was offered to show that, as a result of something she said (and it really does not matter what it was, which is why it was not offered to prove the truth of the matter asserted), he pulled the seat back to look for her watch and found both the watch and the suspected controlled substance in proximity to each other.

There is nothing misleading or improper about allowing the jury to hear that evidence because that is the way it happened, according to the deputy’s testimony at the preliminary hearing.

Instead, the jury only heard the deputy’s trial version of his discovery, which was that he found her watch and the suspected controlled substance in plain view on top of the rear seat in the seatbelt crack right next to where she was sitting. To make matters worse, in his final summation the prosecutor said the proximity of her watch to the suspected controlled substance in plain view amounted to her “autograph” on the controlled substance and she had not offered any explanation for how they happened to be in plain view together in the seatbelt crack right next to her.

It’s not surprising in the least that the jury found her guilty of possession and evidence tampering for attempting to conceal the rock of crack. Would the jury have convicted her if they knew that the deputy found the rock not in plain view, but under his back seat because she asked him to retrieve her watch from under the seat?

I do not believe the jury would have convicted her because who would ask a police officer to retrieve their watch from under the seat, if they had lost the watch while attempting to slough a controlled substance?

That was her defense, but the trial judge took it away from her with his ruling in limine.

The Court of Appeals did not decide whether her statement about her watch and request for his assistance to find her watch was inadmissible hearsay. Instead, it dodged the issue by saying the error, if any, was harmless because she could have testified about her statement and request. Indeed, the Court of Appeals noted that the trial judge told her that she could testify about it.

Why does this not make any sense?

(1) If the statement were hearsay, it is not admissible, whether or not she testifies. That is the law and the trial judge cannot create an exception that does not exist.

(2) She had a constitutional right under the Fifth Amendment not to testify and a right to have the judge instruct the jury that it cannot hold her silence against her. In other words, silence is not evidence of guilt.

(3) The judge’s unlawful exception was a manipulative and coercive effort to force her to testify against her will in violation of her Fifth Amendment right to remain silent and not have her silence held against her.

(4) If she had testified, the jury would have been presented with a classic he-said-she-said controversy in which he said he found her watch and the rock together in plain view at the top of the seatbelt crack on the seat right next to her, and she said he found it under the seat after she asked him to look for her watch. Not even the longest long shot Louie at Hialeah would put a fin on her fate in such a swearing contest.

(5) Who could deny that the odds on the outcome of that he-said-she-said swearing contest would change dramatically, if the jury found out that the deputy had previously testified under oath at the preliminary hearing, about a week after her arrest, confirming her statement. The suppression hearing was five months after her arrest and the trial was 18 months after her arrest, by the way. There can be little doubt that the jury would have believed her and disbelieved his plain-view testimony. Then their whole case falls apart.

(6) That is why her lawyer’s attempt to cross examine the deputy by impeaching him with his prior inconsistent statement under oath at the preliminary hearing was proper and legitimate.

To call this error harmless is disingenuous and absurd. But guess what? That is not even the right test. Why is it not the right test?

The trial judge’s order in limine and his ruling preventing her lawyer from impeaching the deputy with the deputy’s prior inconsistent statement under oath at the preliminary hearing took away her defense.

A defendant in a criminal case has a constitutional right to put on a defense and her right to do that was denied to her by the trial judge’s rulings and aggravated by the prosecutor’s closing argument in which he commented on her silence, which is forbidden by the Fifth Amendment. He also attempted to switch the burden of proof over to her to prove her innocence, which is a denial of due process of law under the Fifth and Fourteenth Amendments.

When the court and a prosecutor violate a defendant’s constitutional rights, the test presumes the error affected the outcome of the trial and the prosecution must rebut that presumption by proof beyond a reasonable doubt that it did not.That is a far different test from the one employed by the Court of Appeals.

There is no way the prosecution can meet its burden in this case. Therefore, the Court of Appeals must be reversed on this issue.

Until tomorrow . . .


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