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Reversed child molest case for violation of right to cross: 5yo c/w refuses to answer questions

18 Mar

Wow.  5 year old child molest complaining witness refuses to answer over 150 defense questions which the Court of Appeal held to be “substantive.”  Conviction reversed (D sentenced to 15-life.).  Important case on the right to confront and cross witnesses under  novel circumstances, with few cases on point, as noted in the opinion.  And, a shout out to a kind defense attorney.

The Court:

“Here, daughter refused to answer hundreds of questions, of which approximately 150 were substantive. And nothing about her lack of cooperation can be attributed to the trial court, prosecutor, or defense counsel, all of whom took laudable measures to try to make it easier for her to testify. These measures included having daughter testify by closed-circuit television, taking frequent recesses during daughter’s testimony and breaking early, allowing daughter to move about, draw, and eat while testifying, and questioning daughter gently and at length on safe but irrelevant topics. The trial court and defense counsel also both encouraged the prosecutor’s efforts in urging daughter to cooperate, and defense counsel tried to build rapport with daughter rather than to antagonize her.”

On the OJ knife

4 Mar

 

Apparently a cop was give a knife unearthed by a construction worker that was buried at the OJ estate.  The cop purportedly kept the knife as a trophy and did nothing to have authorities investigate whether it was the murder weapon.  When he finally told another cop to–get this–find out OJ’s case number to add to the frame he intended to use to encase the knife, it is now being analyzed for fingerprints, DNA, etc.  WOW.  Question: can OJ be prosecuted for destruction of evidence? Answer: probably not. Statute of limitations.  But how would concealing the weapon play out in that circumstance? As far as I know the tolling of a statute of limitations to allow for a prosecution to occur after the statute expires applies to fraud.  Is this a crime of fraud?  Is there a Kellet/Double Jeopardy even though the prosecutors were not aware of the location of the knife?  That probably does not save them because given the fact that they did not have the knife they conceivably knew that it had been concealed/destroyed. VERDICT: another NG for OJ.

BREAKING NEWS: SCC Deputies held to answer for murder of Tyree

3 Mar

Per Mercury News Reporter’s live twitter feed.

the good news and the bad news

29 Feb

Great opinion last week.  Terrible opinion last week.

Good news first:

Reversible error to admit coppy “use of force” expert in PC 69 case because it was not the proper subject of expert testimony, cop misstated the law when leaving out certain factors from the Supreme Court case on use of force, and the testimony was only “marginally relevant.”

Bad news:

The Fourth District COA held last week–get this–that Miller does not require a remand to the trial court for consideration of the mitigating factors to decide if an LWOP juvenile sentence is appropriate because 1170(d)(2)(A)(i) allows a juvenile to PETITION for a parole hearing where those factors will be considered.

The Court relied on the 2016 Supreme Court Case Montgomery v. Louisiana which stated: “The procedure Miller prescribes is no different. A hearing where ‘youth and its attendant characteristics’ are considered as sentencing factors is necessary to separate those juveniles who may be sentenced to life without parole from those who may not. [Citation.] The hearing does not replace but rather gives effect to Miller’s substantive holding that life without parole is an excessive sentence for children whose crimes reflect transient immaturity.” (136 S.Ct. 718).  

Here are my problems with this case which I have not thoroughly researched:

(1) is the standard at a parole hearing (assuming the minor gets past the petition for a hearing stage) the same standard that would at a sentencing hearing on juvenile LWOP reconsideration? The Court did not mention this point.

(2) 1170 DOES NOT provide that a juvenile is entitled to a hearing on whether LWOP is appropriate under its enumerated factors; he is entitled only to have his petition for a hearing considered.  Therefore the petition could be denied without any Due Process attendant to a sentencing hearing.  This is an inadequate remedy considering Montgomery explicitly contemplated a hearing, not a chance for a hearing (see quote above).    The COA recognized this point but essentially said a petition for a hearing and a hearing are the same thing because the factors in Graham are considered in the petition.

(3)  1170 puts the burden of persuasion for a hearing on the minor in that the court must find that the assertions in his petition for eligibility are true by a preponderance of the evidence. But, Miller held that a juvenile LWOP sentence is presumptively invalid–putting the burden on the prosecution to prove it is justified. The COA said as long as the burden is on the prosecution the procedure in 1170 is fine, without explaining how 1170 places the burden on the prosecution or stating that the court was effectively amending the statute.  Maybe I’m misinterpreting the statute or holding?

(4) a juvenile is eligible for parole only after 15 years in custody and if denied a new hearing must way 5 more years for another hearing.  If denied again he has to wait 4 more years.  This may or may not be a problem because Miller/Graham does not say when a juvenile is entitled to a hearing and there is not a problem with a juvenile spending 15 years in prison, only with spending life in prison (and even then there is no problem so long as he is found to be incorrigible).  I am somewhat unclear but I think if the is denied after his third petition he cannot apply again:  “… If recall and resentencing is not granted under [the 3rd] petition, the defendant may file another petition after having served 24 years. The final petition may be submitted, and the response to that petition shall be determined, during the 25th year of the defendant’s sentence.”  Is the denial of the first petition all that is required because Miller/Graham only require one consideration of resentencing?  Probably.

In short this is a terrible, ridiculous case.  There are probably many other problems with it that I do not understand.

gratuitous corgi photo

21 Feb

#really?!

As a passerby-er once said about Jane Doe: Look at that little dog with dem stumpy ass legs!

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Best. Speidi. Article. Ever.

19 Feb

Came across this article making headlines because Spencer Pratt of the Hills stated that the cancelling of the Hills was like 9/11.  Of course, consistent with Spencer Pratt’s admitted MO, the statement was for attention–and it worked.  But, the interview itself is pretty interesting.  Nothing new really–they created their villain personas for ratings and for money.  They blew all their money on clothes, crystals, make up artists, and other extravagances.   And, they are living in his parents’ beach home rent free.  Eesh.   Good read.

Book Reviews

17 Feb

Just finished these 3 books and here are my reviews.

Sue Klebold, A Mother’s Reckoning.  Long story short: The mother of Dylan Klebold aka the Columbine shooter, writes a memoir that will break your heart.  I think people will have a hard time believing her: they were a normal family, they were good parents, they did not have weapons in the home, they were part Jewish how was he saying nazi-ish shit?, he seemed withdrawn but there were no overt signs that he was about go on a murder rampage.  Verdict: GUILTY of being a great read.  And GUILTY of being depressing as shit.

Teresa Giudici: Turning Tables.  Long Story Short: The world’s biggest victim loses a part of her soul (her words) when she trades her go-to black velour outfit for prison garbs.  My first piece of advice for reading this is DO NOT do the auidobook.  I made that mistake.  Sample here.  The entire thing is disturbing in a way which is hard to pinpoint so you have to read for yourself.  Highlights off the top of my head: it is “such a small world” that she bought wet n wild make up in high school and that they only sell wet n wild make up in prison; she could live with the fact that hair dye was back ordered but HOW could she live without raisins in her oatmeal (they do not sell them in the commissary so she bought them off market); woe is me that people wanted to sell pictures of her in prison; there is so much drama and lesbian sex in prison (but don’t worry, she is not homophobic because she thought Kaitlyn Jenner looked beautiful on vogue and at the espys); she told her youngest daughters she was writing a book about prison and that is why she was living there which is an interesting way to explain it.  Verdict: NOT GUILTY of being a good book.

I was more disturbed by her appearance on WWHL when she seemed to think that the reason why the public was upset about her the Lexus she received went she got out was that it had a red bow on it, and that she still explains her criminal conduct as “signing things without reading them.”  I do believe she signed mortgage and bankruptcy docs without reading them.  But, at least if you believe the indictment, she apparently testified at a bankruptcy hearing that her business was created after the bk filing, which was contradicted by records cited in the indictment, and she apparently testified that they had no rental income, which was contradicted by same.  That being said, I would not find it totally shocking that she committed mortgage/bankruptcy fraud because she was duped.  She really is not that sophisticated, even to wonder how it was that they had businesses and income but were declaring bankruptcy.  Besides saying that she did not deserve to be in prison, she never talks about the merits of the case in the book.

I read Faye’s book after watching the People v. Oj.  Man. Talk about exploiting the death of a “best friend.”  Salacious after salacious detail about Nicole Brown.  Frankly, I’m not going to repeat the accusations here because it is really low to make these kinds of reputation assassinations of a murder victim who has no way to defend herself.  I read it in a few hours and it was a good read.  Ghost written by someone from the National Enquirer, that’s probably all you need to know.  Verdict: GUILTY of a good read, but as NOT GUILTY as OJ in terms of being the worst. exploit. ever.

On Scalia

17 Feb

Anyone reading this knows that Scalia died.  My entire weekend consisted of checking #scalia on twitter every minute. Interestingly, in the first 48 hours of his death, there were few #scalia conspiracy theory tweets. Now they’re all up in there.  Those folks are a little slow.

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It was a battle to “respect” the dead for those of us who felt as if Scalia actually murdered our best friend (the constitution) when comparing gay people to murderers, said that there was no constitutional problem with executing innocent people, and that black people should stay in slower track schools where they do well, (yes he said all these things and more). There were many people who probably felt the same way about Scalia’s legal opinions but nevertheless stated that they respected his scholarly mind and his ability to write biting dissents.    I do not, and I will never, get it. Yes, we should respect people with different opinions from ours. Yes, we should not demonize people.  But, when someone uses his position of power to further entrench racism and homophobia in our society, instead of to dismantle it, no, I will not agree to disagree with him.  And, I will never be “entertained by” or “love to read” quippy language used to denigrate an entire group of people or a constitutional right.  In fact, I find it all the more offensive that a person would use his “brilliant legal scholar[ly]” mind and his power to move mountains with his words to oppress other people.  When a man has the power to write racism into law, and he does so (or attempts to do so) with eloquence, we should all be horrified.  There is no room for admiration.

There is this added wrinkle to my reaction which is that Scalia has been known to come out on the right side of SOME criminal law matters (but let’s not forget that he thinks it’s ok to execute intellectually disabled folks or juveniles, or that pretext detentions are a-ok).  My only response to that is: reading the constitution fairly sometimes will not temper my rage for reading racism and homophobia into the constitution other times.

I do not revel in the death of the man– I take no joy in his family’s loss. I revel in the death of his message and of his voice.  I felt joy when hearing the news only because it meant that a powerful racist and homophobic voice is now gone.  1 down, millions to go.

Finally, here is all I have say about what the republicans are doing:
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kanye west

16 Feb

 

is having a britney-spearsamanda-bynes moment for sure.  Yes, everything he is tweeting is sooo Kanye which coincides with symptoms of bipolar–grandiose, inflated sense of self, impulsive, stream of consciousness thoughts.  And, yes, he is new to twitter so this could just be how he always us but now we know it.  But, I’m going with my gut, this is going no where good fast. and it is really really sad.

 

 

LWOP reversed!!

9 Jan

Cop promised leniency for a confession.  Pretty blatant: if you tell the truth we won’t charge you.  No no.  AG conceded if the confession should be suppressed they had to reverse.  yes yes.  Reversed.  Also, the court said there was insufficient evidence of robbery special circumstances (noteI previously mistakenly said lying in wait) therefore he could not be retried on that count.  Victory!