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That was Ohio Wudge..did you read my link abouthow Wisconsin is about to take on a similiar case?

I saw this story on the CNN page today too.

"MILWAUKEE, Wisconsin (AP) -- Julie Jensen will essentially testify from the grave when her husband's murder trial begins this week....."

http://www.cnn.com/2008/CRIME/01/02/poisoned.wife.ap/index.html

DeltaDawn said:

I am going to try to link to an article I read this morning abt a case in WIS where they are using other people's testimony of the wife saying that her husband was trying to murder her. She was poisoned, they have her body, but trying to prove who poisoned her is similiar to Drew's case with both Kathleen and Stacy. Infact he even had a girlfriend waiting in the wings that is the new Mrs. Sound familiar..
http://www6.comcast.net/news/articles/national/2008/01/02/Poisoning.Death/

It has a great discussion about hearsay and circumstantial evidence..which there is alot of involving Kathleen's and Stacy's cases/

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Wudge said:

I will dramatically net. The case is Crawford v. Washington, 541 U.S. 36 (2004). The ruling in Crawford supplanted the prior controlling standard covering unavailable witnesses and their testimonial statements. That prior standard being Ohio v. Roberts, 448 U.S. 56 (1980).

In "Crawford", the Supreme Court gave resolution favor to the Confrontation Clause in the 6th amendment, which gives the accused the right to confront witnesses against him. This tightened the standard held in "Ohio", which required an adequate indicia of reliability (famous guideline) along with a firmly rooted hearsay exception or, on another possible path, it looked for particular guarantees of trustworthiness.

Bottom line, the ruling in "Crawford" narrowed the hearsay exception standard as regards unavailable witnesses and their testimonial statements.

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The Wis. case is the one I was referring to Wudge. And your explanation is dramatically different from what the media is explaining. According to what the media is saying, the US Supreme court seems to have allowed more leeway in the hearsay exceptions and the state courts are following up by reflecting that in their case law. You might want to read the articles quoted by DeltaDawn and Barfield.

DeltaDawn said:

I am going to try to link to an article I read this morning abt a case in WIS where they are using other people's testimony of the wife saying that her husband was trying to murder her. She was poisoned, they have her body, but trying to prove who poisoned her is similiar to Drew's case with both Kathleen and Stacy. Infact he even had a girlfriend waiting in the wings that is the new Mrs. Sound familiar..
http://www6.comcast.net/news/articles/national/2008/01/02/Poisoning.Death/

It has a great discussion about hearsay and circumstantial evidence..which there is alot of involving Kathleen's and Stacy's cases/

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I had not clicked on the link and read the case until you asked. I can see it becoming a classic upon appeal.

Facts of the case.

Along with other statements expressing concern, a wife leaves an accusatory letter with a neighbor. The wife dies. Her husband is charged with murdering (poisoning) her. The husband claims his wife killed herself so as to exact revenge for his affair.

The Judge rules on admitting the letter and other statements as evidence at trial. He rules against the prosecution and for the defense.

Prosecutors appeal the Judge's ruling. Wisconsin's Supreme Court says: "if the defendant's actions prevented the witness from testifying", then the Judge can allow the letter et al into evidence.

The Judge reconsiders, after which he reverses himself and rules for the prosecution. He notes that it is reasonable to "believe" the husband prevented his wife from testifying.

Necessarily, the impartial Judge (13th juror) has pre-judged the defendant to be guilty.

Assume the husband is found guilty. He will appeal the Judge's revised ruling claiming his rights were violated, sc., 6th amendment (fair trial) and 14th amendment (due process).

If SCOTUS hears the case, look for Justice Scalia to lead the case for reversal based on due process and fair trial violations. He wrote the majority opinion in Crawford.

Note: In "Crawford", the Supreme Court did not define what constitutes "testimonial statements".

(Thanks for pointing the case out to me.)

mysteriew said:

The Wis. case is the one I was referring to Wudge. And your explanation is dramatically different from what the media is explaining. According to what the media is saying, the US Supreme court seems to have allowed more leeway in the hearsay exceptions and the state courts are following up by reflecting that in their case law. You might want to read the articles quoted by DeltaDawn and Barfield.

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I just finished reading and summarizing that case. It reads like a great law school hypo.

I don't know how the media is interpreting and reporting on "Crawford" nowadays. I have heard absolutely nothing on it recently.

Please understand that "Crawford" favored the Constitution's Confrontation Clause whereas "Ohio" did not. I can say with near certainty that after Crawford became the controlling case, a lot of prosecutors were necessarily faced with trying to figure out how to do under "Crawford" what would have been easier under "Ohio".

HTH

This is the part that I am having difficulty reconciling with your statement:

Until recent years, using such evidence in court was virtually unheard of because of constitutional guarantees that give criminal defendants the right to confront their accusers.

But the Wisconsin Supreme Court created new rules, prompted by a U.S. Supreme Court decision that laid the groundwork for her accusatory letter and statements to police to be used as evidence in the trial.

and...

In March 2004, the U.S. Supreme Court overturned a 1980 case that laid out complex rules about when statements can be used without the opportunity for cross-examination.

http://www.cnn.com/2008/CRIME/01/02/poisoned.wife.ap/index.html

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And the result was that when the Wisc. Judge refused to allow the evidence into admission the prosection did appeal- and won the appeal with the state State Supreme court saying that if the judge believed that the actions of the defendant "prevented the testimony of the witness" not killed the witness the evidence had to be allowed into evidence.

The way I am reading it, this could possibly also apply if a witness talks about a crime, then refuses to testify because of threats or intimidation from the defendant and that intimidation action could be proved.

mysteriew said:

This is the part that I am having difficulty reconciling with your statement:



And the result was that when the Wisc. Judge refused to allow the evidence into admission the prosection did appeal- and won the appeal with the state State Supreme court saying that if the judge believed that the actions of the defendant "prevented the testimony of the witness" not killed the witness the evidence had to be allowed into evidence.

The way I am reading it, this could possibly also apply if a witness talks about a crime, then refuses to testify because of threats or intimidation from the defendant and that intimidation action could be proved.

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"Until recent years............"

To me, that statement in the article is misleading. It gives the impression that Crawford v. Washington is generally more favorable to prosecutors than the previous controlling standard, which was Ohio v. Roberts. I doubt most prosecutors would see it that way.

Measuring your possible application example to Wisconsin, I would say it would be "possible" too.

As a footnote, it appears to me that Wisconsin desires to return to the Ohio v. Roberts standard, and they are trying to figure out how to say "reliable" in another way.

Here's a decent reference link.

http://www.law.harvard.edu/students/orgs/crcl/vol40_1/shin.php

LOL, I can never understand the legal gobbledegook of those legal decisions, but my understanding of that document is that the Court overturned their previous stand and pretty much is leaving the decision of whether or not hearsay evidence can be admitted in trial up to the lower courts. Which means that each state's legal decision to exceptions of hearsay could be different. And that Harvard is disapproving of the Court's decision. Of course this clears the way for any decision of the court for or against the hearsay evidence, to be appealed because they didn't provide guidelines.

The document does clear up one thing for me though. When Brodsky made the insinuation that Stacy was having an affair with the pastor, it seems that he may have been trying to prevent the pastor's testimony in court by saying that his testimony would not be reliable. Of course by making that info public, Brodsky probably thought that by starting the rumor he would be helping the unreliability factor along. But in actuality what he did was to raise defense of the pastor and to provide the prosecution advance knowlege of the strategy.

mysteriew said:

LOL, I can never understand the legal gobbledegook of those legal decisions, but my understanding of that document is that the Court overturned their previous stand and pretty much is leaving the decision of whether or not hearsay evidence can be admitted in trial up to the lower courts. Which means that each state's legal decision to exceptions of hearsay could be different. And that Harvard is disapproving of the Court's decision. Of course this clears the way for any decision of the court for or against the hearsay evidence, to be appealed because they didn't provide guidelines.

The document does clear up one thing for me though. When Brodsky made the insinuation that Stacy was having an affair with the pastor, it seems that he may have been trying to prevent the pastor's testimony in court by saying that his testimony would not be reliable. Of course by making that info public, Brodsky probably thought that by starting the rumor he would be helping the unreliability factor along. But in actuality what he did was to raise defense of the pastor and to provide the prosecution advance knowlege of the strategy.

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Once a case becomes high-profile, a suspect or suspects should be represented by an attorney. Part of what the attorney should do is prudently defend the suspect or suspects in the media. That's what Brodsky was attempting to do. He's Drew's advocate. That's not to suggest that I think he's well suited to handle the PR role, or that I think he is highly accomplished.

Hmmm...I have to agree on the suggestion Brodsky might not be particularly accomplished or well suited to the role of media savy PR man! He did come into this case because DP begged for representation during an interview and this is who the station supposedly hooked him up with. (Maybe Brodsky was the only one who called in with an offer to take the case?) I guess the old addage, "You get what you pay for.", isn't far off in this instance.

LOL SS you are completely right there..one does get what they pay for..Drew got exactly what he deserved for free..someone that thinks and acts like him..but is probably not his best representative in this case.

Someone here asked whether hearsay is still hearsay if there is evidence (some sort of record) to back it up. Yes, it would still be hearsay. The records themselves would be hearsay as well. Hearsay is, simply, an out of court statement offered to prove the truth of the matter asserted. For example, one cannot say during testimony, "Jason hit Amanda. I know this because Amanda told me." What Amanda told the speaker is a hearsay statement because it was made out of court and the speaker is offering it during testimony to prove the truth of the matter asserted - the truth of what Amanda said, that Jason hit her. A record or document is also hearsay because it is a "statement" made out of court, if it is offered to prove the truth of the matter the document asserts. So phone records are hearsay because they document certain calls made at certain times. That a certain call was made, according to the document, is the "statement" for purposes of the hearsay rule. The document was created out of the courtroom, so it is an out of court statement. If the party offering the records is trying to offer the phone records in court in order to show that a certain call was made, then the record is an out of court statement "offered to prove the truth of the matter asserted". Now, if someone was offering the records to show why they reacted a certain way, then the records are not hearsay. For example, if John presents the records in court to show that he found these records and based on the records, believed a certain call had been made, and so he did something, then the records may not be hearsay. As some have posted, there are many exceptions to the hearsay rule and tons of ways to get by the hearsay rule. Simplified, generally an out of court statement made by a party opponent is aot hearsay because it is considered an admission. I did not read the cases cited above, but in general, if a person is determined to be dead, then he or she becomes an unavailable witness whose statements can be offered to the court. That is an hearsay exception. Thus, if it is shown that Stacy is dead, her statements to the pastor can likely come in to court. I hope that all makes sense.

As to the defamation argument, I was very troubled to read all the posts warning about being sued for defamation and I was even more troubled to see the effect it had on posters on the Stacy Peterson site. I get the sense that the defamation posts were made to scare and possibly to stifle speech, rather than in an effort to protect the posters (Sorry Wudge, that's my opinion!) The statements that there are tons of defamation suits across the country seems misleading. There are tons of all sorts of suits across the country. That does not mean they have merit. As someone posted here, it is very hard to prove a defamation suit. A guy like DP is unlikely to ever file such a suit against on-line posters because he must first prove that what they wrote is a lie and if successful, he must then prove that the statement damaged his reputation is a quanitfiable way. How the heck can he prove that such a statement damaged him instead of his own conduct? He cannot. I sincerely hope posters will not allow themselves to be intimidated further by these kinds of posts. This is a sleuthing site in which people post opinions, brainstorm and vent. And in doing so, they are chipping away at the evil that skulks through this world, and helping to make this world a safer, better place, one post at a time. I wish more people would speak out against inhumanity and work to end it by solving and exploring cases the way the posters here do. This is an intelligent bunch that I think slows the spread of violence. As a mostly lurker, I am often astounded by the passion, hardwork and creativity of the posters. Do not let someone who may have an ulterior motive or other negative agenda stifle you!
P.S. This is not meant to be legal advice.

gitana1 said:

As to the defamation argument, I was very troubled to read all the posts warning about being sued for defamation and I was even more troubled to see the effect it had on posters on the Stacy Peterson site. I get the sense that the defamation posts were made to scare and possibly to stifle speech, rather than in an effort to protect the posters (Sorry Wudge, that's my opinion!) The statements that there are tons of defamation suits across the country seems misleading. There are tons of all sorts of suits across the country. That does not mean they have merit. As someone posted here, it is very hard to prove a defamation suit. A guy like DP is unlikely to ever file such a suit against on-line posters because he must first prove that what they wrote is a lie and if successful, he must then prove that the statement damaged his reputation is a quanitfiable way. How the heck can he prove that such a statement damaged him instead of his own conduct? He cannot. I sincerely hope posters will not allow themselves to be intimidated further by these kinds of posts. This is a sleuthing site in which people post opinions, brainstorm and vent. And in doing so, they are chipping away at the evil that skulks through this world, and helping to make this world a safer, better place, one post at a time. I wish more people would speak out against inhumanity and work to end it by solving and exploring cases the way the posters here do. As a mostly lurker, I am often astounded by the passion, hardwork and creativity of the posters. Do not let someone who may have an ulterior motive or other negative agenda stifle you!
P.S. This is not meant to be legal advice.

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Oh, I like this person! Thank You! I was one of those honestly worried about everything I ever said...even if I did try to be cautious. I almost stopped posting here or anywhere! I was terrified! (People have been nice enough to point out the realistic points already!)

Brainstorm. It IS what we try to do. Put many people together that try to think in a situation and then into what I call a "think tank". The police are not able to to spend all of the time and money doing what we do. We spend days and weeks going over material they might have overlooked or skimmed. If we can find ONE thing that could help...isn't it what we are there for?! The truth IS why we are here. We want justice for women like Stacy, Lisa, and so many more. (We could be such a compliment to LE's own taskforce...and someday they will appreciate us.)

"This is an intelligent bunch that I think slows the spread of violence." Gitana 1

I like the way you think and you have the knowledge to back it up. Thank you for taking the time to post your thoughts. It means a lot to people like me.

Gitana1, thank you so much. We were all trying to say that but you did it so well and said it much clearer.

Thank you Gitana1 ! You have helped to light the darkness on the issues of slander and on the hearsay testimony. Hope you'll stay aboard for our lively discussions.

I have a question about the Will Coounty Grand Jury in relation to this case.

Will the same jurors continue on this GJ until they come to a decision? I read at the Will CO GJ site and Ill GJ site that Will CO requires a GJ juror
to meet once a week for 4 months once they are called to serve. Does this mean that they will soon have to recruit new jurors..or will they require that the same jurors continue to serve? And what if someone says I cannot because I have travel plans or an opertion scheduled during that time due to not being able to do so in the past 4 months? Or if they start the next sessions with new jurors how to they get them up to speed so speak on what has transpired in the GJ so far? I just don't think that would be possible given a four month period with so many witnesses already called. The new jurors would possibly have different questions for the witnesses and I could see this going on and on every 4 months if that was so.

Thoughts....knowledge anyone?

DeltaDawn said:

I have a question about the Will Coounty Grand Jury in relation to this case.

Will the same jurors continue on this GJ until they come to a decision? I read at the Will CO GJ site and Ill GJ site that Will CO requires a GJ juror
to meet once a week for 4 months once they are called to serve. Does this mean that they will soon have to recruit new jurors..or will they require that the same jurors continue to serve? And what if someone says I cannot because I have travel plans or an opertion scheduled during that time due to not being able to do so in the past 4 months? Or if they start the next sessions with new jurors how to they get them up to speed so speak on what has transpired in the GJ so far? I just don't think that would be possible given a four month period with so many witnesses already called. The new jurors would possibly have different questions for the witnesses and I could see this going on and on every 4 months if that was so.

Thoughts....knowledge anyone?

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Normally, jurors would serve until the county discharges them. Though local procedures might differ.

Grand Juries are a dying institution. Almost half the states have abandoned Grand Juries in favor of preliminary hearings, which I strongly favor.

chicoliving said:

ENOUGH of the singling out of members. The next post that is about another poster I will be arranging some vacations from the board. Either edit your posts yourself or I will be deleting them.

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Thank YOU......:blowkiss:

DeltaDawn said:

I have a question about the Will Coounty Grand Jury in relation to this case.

Will the same jurors continue on this GJ until they come to a decision? I read at the Will CO GJ site and Ill GJ site that Will CO requires a GJ juror
to meet once a week for 4 months once they are called to serve. Does this mean that they will soon have to recruit new jurors..or will they require that the same jurors continue to serve? And what if someone says I cannot because I have travel plans or an opertion scheduled during that time due to not being able to do so in the past 4 months? Or if they start the next sessions with new jurors how to they get them up to speed so speak on what has transpired in the GJ so far? I just don't think that would be possible given a four month period with so many witnesses already called. The new jurors would possibly have different questions for the witnesses and I could see this going on and on every 4 months if that was so.

Thoughts....knowledge anyone?

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If I remember correctly, this grand jury began their task the week after or two weeks after Stacy disappeared. I agree that it would be difficult to bring in new jurors at this juncture as there's been so many witnesses that have already testified. It would be difficult to bring new grand jurors up to speed.

I wonder if the grand jury includes alternates, who have been there and listened to all the witness testimony, and who could be seated as a grand juror if someone on the grand jury can't continue for another four months. In the time since this grand jury began meeting, it's very possible for a juror to become ill or for some reason is unable to attend a session or two of the proceedings, so there must be something in place to cover this possibility.