Legal Questions for Our VERIFIED Lawyers #2

[nums24]

I have a question, the defense's first motion regarding spoliation was this:

09/17/2009 Motion to Dismiss Due to Spoliation of Evidence

Today the defense filed this:

02/10/2011 Motion Amended; for Spoliation of Evidence to Exclude all References to the Smell of the Pontiac Sunfire

My question is, is this even proper? Can they amend a motion to dismiss, to a motion to exclude? Will this be allowed since it is past the original deadline? TIA

 

[AZlawyer]

I have a question, the defense's first motion regarding spoliation was this:

09/17/2009 Motion to Dismiss Due to Spoliation of Evidence

Today the defense filed this:

02/10/2011 Motion Amended; for Spoliation of Evidence to Exclude all References to the Smell of the Pontiac Sunfire

My question is, is this even proper? Can they amend a motion to dismiss, to a motion to exclude? Will this be allowed since it is past the original deadline? TIA

I would really like to see this actual document. IIRC, the first motion to dismiss re: spoliation of evidence wasn't even about the smell at all, was it??

The only thing I can think of--besides a clerk's error in typing the title of the document or JB's error in titling his document--is that the defense has recently tried to have the smell independently tested (by more experienced cadaver dogs? who knows?) but discovered that the State had failed to "preserve" the smell for them. Which would be silly because obviously they knew the smell would not last forever--and surely Henry Lee, who smelled the trunk in November 2008, has experience smelling decomp and could testify about the smell for them? Unless he didn't give them the right answer....:innocent:

 

[nums24]

I would really like to see this actual document. IIRC, the first motion to dismiss re: spoliation of evidence wasn't even about the smell at all, was it??

The only thing I can think of--besides a clerk's error in typing the title of the document or JB's error in titling his document--is that the defense has recently tried to have the smell independently tested (by more experienced cadaver dogs? who knows?) but discovered that the State had failed to "preserve" the smell for them. Which would be silly because obviously they knew the smell would not last forever--and surely Henry Lee, who smelled the trunk in November 2008, has experience smelling decomp and could testify about the smell for them? Unless he didn't give them the right answer....:innocent:

You're memory is correct, the original motion had nothing to do with the smell! Here is the original motion: http://www.wftv.com/pdf/20972702/detail.html

I would love to see the new motion too, I think the defense is trying to "sneak" this in. How likely are they to succeed?

 

[AZlawyer]

You're memory is correct, the original motion had nothing to do with the smell! Here is the original motion: http://www.wftv.com/pdf/20972702/detail.html

I would love to see the new motion too, I think the defense is trying to "sneak" this in. How likely are they to succeed?

No way to tell without reading it. I assume they have some recent facts to discuss--otherwise, how can they explain missing the deadline?

 

[Paintr]

Slightly different topic...


Is likely that the State will question potential jurors about Reich's celebrity during voire dire? i.e. have they read her books? heard of her via tv show Bones?


Is it possible her celebrity might skew jurors into thinking her more expert or believable. But, would state bother with such a question as they vet jurors?


Thank you kindly for your thoughts on this.

 

[nums24]

No way to tell without reading it. I assume they have some recent facts to discuss--otherwise, how can they explain missing the deadline?

No motion yet, but here is a more detailed article:

http://www.clickorlando.com/news/26824075/detail.html

Does this give you enough info?

 

[AZlawyer]

No way to tell without reading it. I assume they have some recent facts to discuss--otherwise, how can they explain missing the deadline?

ETA: Well. I'm still waiting to read it, but after reading the news article I'm pretty sure it's just a late and not-too-likely-to-win motion.

Slightly different topic...


Is likely that the State will question potential jurors about Reich's celebrity during voire dire? i.e. have they read her books? heard of her via tv show Bones?


Is it possible her celebrity might skew jurors into thinking her more expert or believable. But, would state bother with such a question as they vet jurors?


Thank you kindly for your thoughts on this.

I think it's a good idea. Hopefully the SA will read your post!

 

[SWEETSPYRIT]

Will the potential jurors be asked if they know the smell of human decomp? Thanks in advance!

 

[nums24]

Hi AZ, now that we've seen the Amended Motion, the original motion was to dismiss and this motion is to exclude, how does that work, legally speaking?

 

[AZlawyer]

Will the potential jurors be asked if they know the smell of human decomp? Thanks in advance!

Yes, if the defense team decides that they want to strike potential jurors who will know from personal experience that the smell of human decomp and the smell of kitchen trash cannot be confused.

Hi AZ, now that we've seen the Amended Motion, the original motion was to dismiss and this motion is to exclude, how does that work, legally speaking?

How it works is that this is not an amended motion to dismiss at all. It is a brand new motion in limine, based on information that everyone has known about forever. If the deadline for motions in limine has passed (and I think you told me it has), I would expect HHJP to have some very pointed questions about the timing of this motion.

 

[Spangle]

AS far as I know, we have seen only 2 pages out of the diary. JB had admitted to seeing all of it, and didn't like what was in it. (last hearing) Is the whole diary in evidence or are just the 2 pages pictured and shown so far? I mean, can other pages be shown to the jury during the trial?

 

[Snaz]

I asked this on another thread, but AFAIK, did not get a response, so AZ, could you please comment on this?

How can the defense ask for all mention of the smell to be disallowed at trial since HHJP has already ordered the 911 calls can come in? Cindy's "it smells like there's been a dead body in the damn car" is there for all to hear.

Thank you!

 

[AZlawyer]

AS far as I know, we have seen only 2 pages out of the diary. JB had admitted to seeing all of it, and didn't like what was in it. (last hearing) Is the whole diary in evidence or are just the 2 pages pictured and shown so far? I mean, can other pages be shown to the jury during the trial?

JB didn't see he'd seen any more than we had. I took his remark to mean that he had read the 2 readable pages, plus the FBI interpretation of the 2 sets of "invisible" indentations from torn-out pages.

I asked this on another thread, but AFAIK, did not get a response, so AZ, could you please comment on this?

How can the defense ask for all mention of the smell to be disallowed at trial since HHJP has already ordered the 911 calls can come in? Cindy's "it smells like there's been a dead body in the damn car" is there for all to hear.

Thank you!

If the defense were to win on the motion re: the smell (which they won't), then the 911 calls would still come in, except for that part, which would be redacted.

 

[Spangle]

Thanks. However, does it mean that the whole diary can not be used, just the 2 pages?

 

[AZlawyer]

AS far as I know, we have seen only 2 pages out of the diary. JB had admitted to seeing all of it, and didn't like what was in it. (last hearing) Is the whole diary in evidence or are just the 2 pages pictured and shown so far? I mean, can other pages be shown to the jury during the trial?

Thanks. However, does it mean that the whole diary can not be used, just the 2 pages?

BBM

Nothing at all is in evidence so far, because the trial hasn't started. The State can use whatever parts of the diary they've disclosed to the defense, and it sounds like they've disclosed all of it. But as far as we know, "all of it" is (1) the 2 visible pages that were photographed and (2) the 2 "invisible" pages that were imaged. No one has suggested that any of the other pages have writing on them.

 

[Aedrys]

Would Baez have had to ask for the garbage to be sealed and not aired out? Or was he to expect LE to do this anyway? I'm just wondering if this motion is a waste because he didn't ask them to preserve the garbage in the first place. It seems like such a simple explanation...

 

[ZsaZsa]

IIRC it was at the first Bond hearing that Yuri Melich testified to the smell of decomposition in iCA's car. Since that testimony is on the Court record, can JB now ask to exclude that as well? IMO his would be considered something of an expert opinion based on his Homicide experience...

 

[AZlawyer]

Would Baez have had to ask for the garbage to be sealed and not aired out? Or was he to expect LE to do this anyway? I'm just wondering if this motion is a waste because he didn't ask them to preserve the garbage in the first place. It seems like such a simple explanation...

LE is expected to preserve the evidence without being asked, and the SA may not be permitted to use certain evidence if other evidence is not preserved. However, in this case there are some obvious questions, including (1) was the smell of the garbage "evidence" at all, and (2) is it possible to "preserve" a smell anyway? LE trapped and tested the gasses emitting from the trunk liner, and also trapped and tested the air from the trash bag. LE still has the can containing a piece of the trunk liner, but as JB's motion points out, that can doesn't really "smell like the trunk" at this point--it smells like the gasses that have emitted from that little piece of the trunk liner. So LE really didn't, and couldn't, "preserve" the trunk smell. In which case, why would anyone expect LE to "preserve" the trash bag smell?

JB's motion seems to assume that the SA intended to have the jury smell the can containing the bit of trunk liner as "evidence" of the decomp smell. I personally doubt that was the strategy. I suspect that the evidence of the smell was and is going to be the testimony of Yuri, the tow yard guy, Cindy and George. Similarly, all those same people can testify about the smell of the trash.

IIRC it was at the first Bond hearing that Yuri Melich testified to the smell of decomposition in iCA's car. Since that testimony is on the Court record, can JB now ask to exclude that as well? IMO his would be considered something of an expert opinion based on his Homicide experience...

The jury would not get to hear testimony from the bond hearing. Just because something was allowed at the bond hearing does not mean it has to be allowed at trial.

IIRC, JB was asking to exclude ALL references to the smell. I assume that includes Yuri's opinion, expert or not.

 

[ynotdivein]

AZ, if you can put yourself in the defense team's shoes (and I do understand that this is a stretch for you, and not in the right direction)... what do you think are the odds of them presenting no defense? Just cross-examining the State witnesses, and then resting? You know, the old "better to keep your mouth shut and be thought a fool than to open it and be proved one" adage? (Or is it called the Scott Peterson Defense?)

To this layperson it seems that any attempt by the D-team to mount a defense will be absolutely blown up. Just wondering what you think?

 

[AZlawyer]

AZ, if you can put yourself in the defense team's shoes (and I do understand that this is a stretch for you, and not in the right direction)... what do you think are the odds of them presenting no defense? Just cross-examining the State witnesses, and then resting? You know, the old "better to keep your mouth shut and be thought a fool than to open it and be proved one" adage? (Or is it called the Scott Peterson Defense?)

To this layperson it seems that any attempt by the D-team to mount a defense will be absolutely blown up. Just wondering what you think?

I guess I wouldn't call it "no defense" to cross-examine the state's witnesses. I think that's what the defense team ought to be focusing on, "quite frankly" as JB would say. But I know what you mean. At this point, I think it's certain they will have at least a couple of expert witnesses, and I'm sure they'll want to call Lee, Cindy and George to "help" the defense.