{"id":5683,"date":"2011-06-23T07:59:11","date_gmt":"2011-06-22T23:06:04","guid":{"rendered":""},"modified":"-0001-11-30T00:00:00","modified_gmt":"2011-06-22T05:46:04","slug":"en-US","status":"publish","type":"post","link":"http:\/\/fourthamendment.com\/?p=5683","title":{"rendered":"In trial next two days"},"content":{"rendered":"

Udpate:<\/strong> Trial one: Criminal case, sexual abuse in the first degree alleging “sexual contact” (touching outside the clothes) between a 28 year old and a 12.9 year old daughter of my guy’s meth supplier. Defense is denial. Never happened, and we have witnesses for 98% of the time it allegedly happened. She had also been told to quit her flirting with my guy by his girlfriend because she was generally inappropriate. In a DHS intake report is a throw away line of the alleged victim’s mother saying she “heard” my guy had a similar complaint involving a 15 year old that never went anywhere. At the Monday pretrial, the trial judge grants my motion in limine they can’t go there: (1) no proof there ever was an investigation, (2) my guy never heard of such an investigation [so he sure couldn’t lie about it], (3) more prejudicial than relevant under 403, and (4) no 404(b) notice of this alleged investigation. State concedes Monday they won’t bring it up.<\/p>\n

Eight questions into cross, the state asks about it. Only once before in my life have I moved for a mistrial [and that was granted]. I come out of my chair shouting and pointing at the state: “I move for a mistrial! This is in bad faith and beyond the pale. You already ruled this out because there is no evidence of it.” My tone of voice, I’m sure, was complete anger, all in front of the jury, and I never get angry in front of a jury. <\/p>\n

The judge told us to approach, and he was staring at the prosecutor with the “if looks could kill” look as we came up. They said my guy opened the door by denying this crime by the way he did it. I said his denial of this crime did not open the door, and even if it did, it still violated the pretrial order because he has no knowledge of an investigation to lie about it and there is no good faith basis to ask and no 404(b) notice because they have no good faith basis. No admonition can cure this taint. <\/p>\n

The jury was sent out, and we listen to the audio of the last five minutes of direct. We make argument again, and I put in the report with the one sentence. Direct violation of the order on the motion in limine; no 404(b) notice, no nothing; more prejudicial than relevant; no cure possible; this was not just negligent because they agreed not to ask about it on the motion in limine, and they had no evidence of such an investigation and no good faith basis for even asking about it because all they would get is a denial, but the taint is there. Most importantly, the prosecutor now concedes defendant did not open the door, and this was just a good faith mistake on his part.<\/p>\n

Mistrial granted at 6:30 pm. When we empaneled the jury, they were warned we’d be there past 8 pm. We were already going to go to 9, probably. And we were doing well in this trial, but getting f’ed over in front of the jury like that was like the 404(b) kiss of death in trial.<\/p>\n

Next will come the motion under Oregon v. Kennedy, actually under the state court opinion on remand<\/a> which is better, that this prosecutor caused mistrial is a double jeopardy bar.<\/p>\n

As I have said before, “A trial is a series of unanticipated events.” <\/p>\n","protected":false},"excerpt":{"rendered":"

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