GUILTY IL - Yingying Zhang, 26, Urbana, 9 June 2017 #10 *Still Missing*

Discussion in 'Trials' started by liltexans, Jul 2, 2017.

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  1. Webthrush

    Webthrush Ohhh, and one more thing...

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    sheeeesh... if you wrote all this into a novel or a Law And Order episode no one would find it believable!
     
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  2. kittythehare

    kittythehare Well-Known Member

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    Good, good , good.
    She needs to be less vehement, perhaps.
    Last thing the Zhang family needed was the hassle of having to respond to this so close to the trial.
    She has clearly become obsessed with her protege and is behaving in a similar fashion on the verbal sphere.

    She seriously needs to redeem herself by showing respect to young YingYing.
     
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  3. kittythehare

    kittythehare Well-Known Member

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  4. trunkizback

    trunkizback Well-Known Member

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    Ok. Onea you legal eagle types, help me out here. I thought one of the tenets of having the trial was to introduce evidence . so if during the trial the vigil tape was shown. His voice and text messages were heard. How does the defense even begin to ask that these be excluded??
     
  5. kittythehare

    kittythehare Well-Known Member

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    Fairly good explanation in this from prosecution today.
    It's a different case, different aspects need to be proved
    Response to Motion – #423 in United States v. Christensen (C.D. Ill., 2:17-cr-20037) – CourtListener.com
     
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  6. lynneboh

    lynneboh Well-Known Member

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    Last edited: Jun 28, 2019
  7. kittythehare

    kittythehare Well-Known Member

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    wow,he must have been pretty blatant when the judge actually pulled him on it.
    NO REMORSE.
     
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  8. Raptors001

    Raptors001 Well-Known Member

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    I know what blatant means, but what do you mean 'pulled him on it ' ?
     
  9. kittythehare

    kittythehare Well-Known Member

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    I meant. judge confronted him on it.
     
  10. tresir2012

    tresir2012 Oh! What a tangled web we weave....

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    So judge will allow the plea deal details at the sentencing discussions. Do we think this will dissuade the jury from choosing DP?
     
  11. tresir2012

    tresir2012 Oh! What a tangled web we weave....

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    Not such an "all star" after all then. Rookies make mistakes like that, I am very surprised.
     
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  12. kittythehare

    kittythehare Well-Known Member

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    The Prosecution accused her in a sealed document of doing it deliberately.
    I believe that to be a real possibility.
     
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  13. tresir2012

    tresir2012 Oh! What a tangled web we weave....

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    2:17-cr-20037-JES-JEH # 423 Page 1 of 8 E-FILED
    Thursday, 27 June, 2019 10:25:23 AM
    Clerk, U.S. District Court, ILCD

    UNITED STATES DISTRICT COURT
    CENTRAL DISTRICT OF ILLINOIS
    URBANA DIVISION

    UNITED STATES OF AMERICA )
    )
    Plaintiff, )
    )
    v. ) Case No. 17-20037
    )
    BRENDT A. CHRISTENSEN, )
    )
    Defendant. )

    UNITED STATES OF AMERICA’S RESPONSE IN OPPOSITION TO
    DEFENDANT’S MOTION IN LIMINE TO PRECLUDE THE GOVERNMENT
    FROM REPLAYING THE RECORDINGS FROM THE VIGIL WALK IN PENALTY

    COMES NOW the United States of America, by John C. Milhiser, United States

    Attorney for the Central District of Illinois, and Eugene L. Miller and Bryan D. Freres,

    Assistant United States Attorneys, and James B. Nelson, Department of Justice Trial

    Attorney, and hereby offers its response to the defendant’s Motion in Limine to Preclude

    the Government From Replaying the Recordings from the Vigil Walk in Penalty

    [Phase]. (R.409) For the reasons stated herein, defendant’s motion should be denied.

    BACKGROUND

    On October 3, 2017, the grand jury returned a superseding indictment charging

    the defendant with kidnapping resulting in Ms. Zhang’s death, and two counts alleging

    that he made false statements to FBI agents investigating her kidnapping. (R.26) The

    superseding indictment also alleged four threshold intent factors, and three statutory

    aggravating factors. (R.26) The statutory aggravating factors alleged therein include that



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    2:17-cr-20037-JES-JEH # 423 Page 2 of 8



    Yingying Zhang’s death occurred during the commission of kidnapping; that the

    defendant committed the offense in an especially heinous, cruel or depraved manner, in

    that it involved torture or serious physical abuse to the victim; and the defendant

    committed the offense after substantial planning and premeditation. (R.26)

    On January 19, 2018, the United States filed its notice of intent to seek the death

    penalty (hereinafter “NOI”). (R.54) In addition to the threshold intent factors and

    statutory aggravating factors contained in the superseding indictment, the NOI also

    alleged multiple non-statutory aggravating factors. (R.54) Five of the alleged non-

    statutory aggravating factors are still at issue: (1) victim impact evidence; (2) future

    dangerousness of the defendant; (3) lack of remorse; (4) vulnerability of the victim; and

    (5) obstruction. (R.54)

    The defendant’s trial started on June 3, 2019. (d/e 06/03/2019) On June 24, 2019,

    the jury found the defendant guilty on all three counts of the superseding indictment.

    (d/e/ 06/24/2019) Following the verdict, the Court delayed the penalty phase for two

    weeks, to July 8, 2019, over the United States’ objection.

    ANALYSIS

    In his motion, the defendant seeks to prevent the United States from playing the

    Memorial Walk recording (Exhibit 29) during the penalty phase. The defendant argues

    playing the recording during the penalty phase would be “more prejudicial than

    probative.” The recording has already been admitted into evidence and published

    without objection. For the reasons discussed herein, the defendant’s motion should be

    denied.

    2
    2:17-cr-20037-JES-JEH # 423 Page 3 of 8



    Once a defendant charged with a capital crime is found guilty in the initial guilt-

    determination phase, capital cases proceed to a penalty phase. The Federal Death

    Penalty Act’s (hereinafter “FDPA”) penalty phase process requires the jury to first

    determine the defendant’s eligibility for a death sentence and then select the

    appropriate sentence. See Jones v. United States, 527 U.S. 373, 376-79 (1999) (summarizing

    FDPA sentencing process); United States v. Runyon, 707 F.3d 475, 486-87 (4th Cir. 2013)

    (same). The eligibility determination involves finding at least one threshold intent

    factor set forth in 18 U.S.C. § 3591(a)(2), and at least one of the sixteen statutory

    aggravating factors enumerated in 18 U.S.C. § 3592(c). These factors render a defendant

    eligible to receive a greater sentence than the jury’s guilty verdict alone would permit.

    As such, they are functionally equivalent to elements of an offense, and they must be

    both presented to the grand jury for inclusion in the indictment, and found by the petit

    jury unanimously and beyond a reasonable doubt. United States v. Higgs, 353 F.3d at

    281, 298 (4th Cir. 2003).

    The United States has alleged three statutory aggravating factors, and five non-

    statutory aggravating factors. As noted, the United States must prove all of those factors

    beyond a reasonable doubt during the penalty phase. Exhibit 29 relates, in some fashion

    or another, to all of the aggravating factors the United States must prove. While the

    recording was played in its entirety at trial on June 14, and then parts were replayed

    using limited clips with a witness to clarify that witness’s understanding and

    observations of the statements, the issues in the penalty phase are different from the

    guilt phase.

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    For example, the United States was required to prove certain elements during the

    guilt phase in order to satisfy the elements of Count One, namely that the defendant

    held the victim and that the kidnapping resulted in her death. During the penalty

    phase, the United States will be required to prove beyond a reasonable doubt that the

    crime was committed in a heinous, cruel, or depraved manner, that the defendant lacks

    remorse, that the defendant poses a risk of future dangerousness, and that the

    defendant obstructed the investigation. On other words, Exhibit 29 is important in each

    phase for different reasons, and the manner in which the parties will address and argue

    the recording will be different.

    The defendant also objected to the jury reviewing the recordings or the

    transcripts during deliberations. After the verdict was returned, the Court delayed the

    penalty phase for two weeks at the defendant’s request and over the United States’

    objection. By the time the penalty phase begins on July 8, 2019, it will have been over

    three weeks since the jury heard Exhibit 29 in its entirety. Forcing the jury to rely

    entirely on their memory for the nuances of an approximately 90-minute recording

    would limit their ability to meaningfully consider the evidence. See Runyon, 707 F.3d at

    491 (noting that while a defendant in a capital case “may wish to severely cabin the

    jury’s sentencing discretion by restricting the evidence it may hear and the inferences it

    may draw, the FDPA anticipates that the jury will confront a broad array of information

    and enjoy considerable leeway in assessing it.”).

    Limiting the presentation of evidence would also prejudice the United States in

    its ability to prove the statutory and non-statutory aggravating factors. Id. at 492

    4
    2:17-cr-20037-JES-JEH # 423 Page 5 of 8



    (noting courts “must avoid constraining unduly the prosecutor’s ability to paint a

    complete picture of the defendant’s crime and character, less the jury be less than fully

    and amply informed.”).

    Exhibit 29 has already been admitted into evidence. The defendant did not object

    to its admission or publication during the guilt phase. Any argument that the recording

    constitutes unfair prejudice is without merit or support. While evidence of the torture

    inflicted by the defendant on the victim is prejudicial, it is not unfairly so – the United

    States is required to prove the heinous and cruel nature of the defendant’s crime

    beyond a reasonable doubt. See Brogdon v. Butler, 824 F.2d 338, 342 (5th Cir. 1987)

    (rejecting argument that admission of graphic photos in both guilt and penalty phases

    prejudiced defendant because the photos were relevant to heinousness aggravating

    factor, and “f such photographs were concededly relevant and properly admitted at

    the guilt phase of petitioner’s trial, then we cannot find that those and other similar

    photographs were improperly admitted at the sentencing phase[.]”).

    The defendant cites an unpublished decision from United States v. Con-ui for the

    proposition that the United States should not be allowed to play a graphic recording in

    both the guilt and penalty phases. 1 In Con-ui, the video recording in question showed


    1
    Without analysis or discussion, the defendant also cites United States v. Bailey, 840 F.3d
    99, 121-22 (3d Cir. 2016). Bailey is distinguishable from the facts of this case. In Bailey, the
    defendant was charged with a non-capital drug conspiracy, and the court excluded a
    graphic murder video where an individual shot someone in the head and casually rode
    away while a child left a building and saw the person dying. The Bailey court concluded
    the government had “introduced abundant evidence to prove the James murder and its
    relationship to the charged drug conspiracy” without the video. Id. at 122. In other
    words, “[t]he government had alternate, less prejudicial ways of presenting the James

    5
    2:17-cr-20037-JES-JEH # 423 Page 6 of 8



    Con-ui stabbing a prison guard approximately 200 times. While the defendant cites Con-

    ui as support for his request, his description of the case is incomplete. In Con-ui, the

    court allowed the government to play the graphic video in its entirety in the guilt phase,

    and to present clipped photographs from the video during the penalty phase in order to

    prove specific aggravating factors. See United States v. Con-ui, No. 3:13-CR-123, 2017 WL

    783437, at *6 (M.D. Pa. Mar. 1, 2017) (noting a district court “is not required to scrub the

    trial clean of all evidence that may have an emotional impact[,]” and that the

    photographs “have particular probative value in light of the aggravating factors[.]”).

    While the United States does not agree with the Con-ui ruling, even Con-ui does not

    support the defendant’s extreme request. The Con-ui court recognized the United States

    must be allowed to present evidence of its aggravators. In this case, the recording at

    issue includes a verbal description of the murder. This is less prejudicial, per se, than a

    video recording of the murder itself. Further, unlike a video recording, there is no way

    to present the evidence is a less graphic way.

    Moreover, the United States does not intend to play Exhibit 29 in its entirety

    during the penalty phase. Instead, like in Con-ui, the United States intends to play clips

    that relate specifically to aggravating factors that the United States must prove beyond a

    reasonable doubt. The United States also will not play all of the clips that were played




    murder[,]” which “reduced the probative value” of the video. Id. Not only does Bailey,
    as a non-capital case, not address the current situation, it does not support the
    defendant’s argument. There is no “alternate, less prejudicial way[]” of understanding
    the full nature of the defendant’s actions in this case without Exhibit 29, as the
    defendant’s statements provide the context for the remainder of the evidence.

    6
    2:17-cr-20037-JES-JEH # 423 Page 7 of 8



    with Ms. Bullis, and those that would be replayed have been shortened to relate

    specifically to the issues for the penalty phase.

    WHEREFORE, the United States respectfully requests that the Court deny

    Defendant Brendt Christensen’s Motion in Limine to Preclude the Government From

    Replaying the Recordings from the Vigil Walk in Penalty [Phase]. (R.409)


    Respectfully submitted,

    JOHN C. MILHISER
    UNITED STATES ATTORNEY

    /s/Eugene L. Miller /s/ James B. Nelson
    Eugene L. Miller James B. Nelson
    Assistant United States Attorney Trial Attorney
    201 S. Vine St., Suite 226 Capital Case Section
    Urbana, IL 61802 United States Department of Justice
    Phone: 217/373-5875 1331 F. Street NW, Room 625
    Fax: 217/373-5891 Washington, DC 20004
    eugene.miller@usdoj.gov Phone: 202/598-2972
    james.nelson@usdoj.gov

    /s/Bryan D. Freres
    Bryan D. Freres
    Assistant United States Attorney
    201 S. Vine St., Suite 226
    Urbana, IL 61802
    Phone: 217/373-5875
    Fax: 217/373-5891
    bryan.freres@usdoj.gov




    7
    2:17-cr-20037-JES-JEH # 423 Page 8 of 8



    CERTIFICATE OF SERVICE

    I hereby certify that on June 27, 2019, I electronically filed the foregoing with the

    Clerk of the Court using the CM/ECF system, which will send notification of such filing

    to counsel of record.


    /s/Bryan D. Freres
    Bryan D. Freres
    Assistant United States Attorney
    201 S. Vine St., Suite 226
    Urbana, IL 61802
    Phone: 217/373-5875
    Fax: 217/373-5891
    bryan.freres@usdoj.gov




    8
     
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  14. kittythehare

    kittythehare Well-Known Member

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    It depends entirely upon the wording and how the prosecution explain their reasons for declining what appears to be a tepid attempt to avoid the DP.
     
  15. tresir2012

    tresir2012 Oh! What a tangled web we weave....

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    What? Another sealed document released "accidentally " ? Have you posted that one already?
     
  16. kittythehare

    kittythehare Well-Known Member

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    No, source is Ben's tweet which @DM copy/pasted yesterday.
    edit to add direct link
    Ben Zigterman on Twitter
     
    Last edited: Jun 28, 2019
  17. tresir2012

    tresir2012 Oh! What a tangled web we weave....

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    They will obviously say there was no guarantee and maybe disclose what the family responded. I know they were hoping she was still alive somewhere at that stage. It will just go to further show lack of remorse to the jury by the ***. Doesn't the guilty party need to show remorse to get LWOP? The snickering and his whole attitude doesn't show much remorse.
     
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  18. kittythehare

    kittythehare Well-Known Member

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    There is so much we do not know about this dude, it's impossible to assess.
    We'll be treated to his first baby-steps, his first nappy- change and so much more padding next week as his defense reconstruct him and add a few essential personality traits that he probably does not actually have...
    I doubt we will be any the wiser.
    It's quite possible that the sniggering in court was an effort to advance his insanity plea. He'll probably do cartwheels in court next week to the extent that the court will have no option but to declare him insane.
    He waived his right to an insanity plea when he refused to be examined by the state's psychiatric examiners.
    But he had learnt all the symptoms he would need to be manifesting to fulfil quite a large mixture of psychiatric diseases.
    (he just got them all in the wrong order and mixed them up quite a lot, and so did his defense lawyers.

    They have been edging it into evidence ever since.
     
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  19. kittythehare

    kittythehare Well-Known Member

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    Judge: If Christensen's lawyers bring up plea offer, prosecution gets to weigh in

    But if they do, federal prosecutors will be able to put it in context, Shadid said at a pre-sentencing hearing in Peoria.

    Prosecutors haven’t publicly said why they rejected the offer, but Shadid’s order said that the “United States contends that the circumstances of the plea negotiations show that defendant did not accept responsibility.”

    The plea offer was revealed Tuesday evening in a motion that was accidentally filed publicly, Assistant Federal Defender Elisabeth Pollock said, rebutting claims by the prosecution that it was released intentionally.

    Pollock said she proofread the document for spelling and filed the document for Brain.

    But he said the expert could also be asked during cross-examination about the future dangerousness of white 30-year-olds convicted of kidnapping.

    At some point during this, Christensen started to laugh or smirk, which prompted Shadid to ask, “Is there something funny about all this, Mr. Christensen?”

    “No, I’m sorry,” Christensen responded, one of the few times he has spoken in open court
     
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  20. tresir2012

    tresir2012 Oh! What a tangled web we weave....

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    U of I killer Brendt Christensen would join exclusive federal death penalty fraternity

    The last Illinois inmate to be executed by the United States was on July 14, 1938.


    Right now just one federal inmate in Illinois is on death row: Ronald Mikos was sentenced in 2005. Mikos was an MD who murdered one of his patients, a disabled church employee who was to testify against him in a million dollar Medicare fraud case.

    "The U.S. Attorney's office considering asking for death penalty they did consult with the family" said Zhi Dong Wang, an attorney for the parents of Yingying Zhang. "The family's input was a consideration. The family did ask the prosecutors to consider and to request for death penalty."

    While the Justice Department tagged Christensen's case as a death penalty prosecution, data show he is more likely to receive a life sentence once the decision comes down. According to statistics collected by the Death Penalty Information Center, juries select life in prison in about 70% of all capital cases.

    If a jury votes for execution, in federal cases the trial judge may overrule the decision and convert the sentence to life behind bars.

    In Christensen's case, the prospect of being executed weighed on him even before he was arrested. On FBI undercover recordings of conversations that he had with his girlfriend, Christensen is heard saying that he could be killed for his conduct.
     
    Last edited: Jun 28, 2019
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