Re: Toad is the Epitome of Stink Bombs


"Ken Smith" <forget@xxxxxx> wrote in message news:43FB323B.7020003@xxxxxxxxx
Dane wrote:
"RetzQ" <lorettas2@xxxxxxx> wrote in message
news:1140485640.293697.267560@xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx
Theodore A. Kaldis wrote:
Lowrenta wrote:


[blah, blah, blah ... a bunch of UNFOUNDED speculation]


No, Ted, deductive legal reasoning. You could use some study on it,
yourself.

Read the following papers, then get back to me.

http://io.uwinnipeg.ca/~walton/p_and_p.htm


You have ABSOLUTELY no idea what you are talking about. There are
things going on under the surface of this case that I haven't talked
about (and WON'T) that you can't possibly imagine. This trial won't
look ANYTHING like what you describe -- things will come up that will
be a TOTAL surprise to you. More than that I will not say.

The question is, if this so called evidence actally exists, will it be
admissable?

For a good general background on crininal law, see:

Criminal Law and its Processes, Kadish and Schulhofer 7th

http://www.ilrg.com/students/outlines/download/crim2.doc






You didn't even read what I wrote. Figures.

I was writing about defense strategy, and it will follow that
boilerplate. Wait and see.

The only person who is going to be surprised around here is you - when
the jury comes back with a verdict of GUILTY.

Check out the similarity of the following case:
http://lwb.lawnet.com.sg/legal/lgl/rss/supremecourt/49725.html

BRILLIANT, Dane!!! This is almost precisely how Cam's case will go.
The facts are remarkably similar.
_____________________________________________________________________

Some pertinent excerpts [my observations in brackets]:

"Dr Tay testifies that the trajectory of Sindee?s fall could be
resolved into two components ? the vertical component that resulted from
the force of gravity and the horizontal component that resulted from the
horizontal force to which she must have been subjected, just prior to
plummeting from the Block. This force could have come from an external
party or conceivably even from Sindee herself. He emphasises that each
component of force was independent of the other. The horizontal
component would determine the horizontal distance measured from the edge
of the Block to the point at which Sindee ultimately landed."

[This is particularly problematic, given Lauren's injuries. The only
question in this case is whether she could have REASONABLY received them
on account of a simple slip-and-fall, as I explained to Ted roughly two
years ago. If the answer is no, Cam *will* be convicted. If the answer
is yes, he should be acquitted. It's not "junk-science," as Ted falsely
claims. It's accepted in any court, and actual on-site experiments need
not be done, as the laws of physics are generally the same in Oregon.]

"It is extraordinary that the accused should have brought Sindee so
dangerously close to the railing."

[A STRONG negative inference will be drawn from Lauren's presence
near the cliff; the judge's reaction mirrors mine, Larry's, and pretty
much everyone else's. Add to that the astonishingly unlikely chain of
events you would need have happen to even *get* Lauren there, and the
inference of guilt is pretty haunting. Add that to Cam's reported
demeanor at the site, and you can see why the State has a pretty good
case.]

"The accused has been consistently able to furnish a fairly
comprehensive narrative of events...."

"For the accused?s assertions to bear even a modicum of
credibility...."

[Cam's statements will be used against him, just as Ted's have been
used against him.]

"The question may be asked what was the reason or motive for the
killing. The prosecution had not expressly suggested any motive and it
was not necessary to do so. Its only burden was to show that the
appellant intended to inflict the injuries caused, and this burden it
had discharged beyond a reasonable doubt. [emphasis added in original]
[quoting another case]"

[While this case is from Singapore (a common-law jurisdiction, with
many of the same rules of evidence as our own), the fact remains that no
motive need be proven by the prosecution, and circumstantial evidence
may be used to prove guilt. The court goes on to explain that]

"The law on circumstantial evidence in England is defined and
described in Blackstone?s Criminal Practice 2004 (Oxford University
Press, 2004) pp 1998?1999 in the following terms:

Circumstantial evidence ?works by cumulatively, in geometrical
progression, eliminating other possibilities? (DPP v Kilbourne
[1973] AC 729, per Lord Simon at p.758). Pollock CB, likening
circumstantial evidence to a rope comprised of several cords,
said:

One strand of the cord might be insufficient to sustain the
weight, but three stranded together may be quite of sufficient
strength.

Thus it may be in circumstantial evidence ? there may be a combination
of circumstances, no one of which would raise a reasonable conviction,
or more than a mere suspicion; but the whole, taken together, may
create a strong conclusion of guilt, that is, with as much certainty
as human affairs can require or admit of. (Exall (1866) 4 F & F 922,
at p.929)"

"I also find interesting the observations of the editors of The Penal
Law of India (Law Publishers (India) Pvt Ltd, 11th Ed, 2000) vol 3, at p
2664 that:

[I]n a case where the various links have been satisfactorily made out
and the circumstances point to the accused as the probable assailant,
with reasonable definiteness and in proximity to the deceased as
regards time and situation and he offers no explanation which if
accepted, though not proved, would afford a reasonable basis for a
conclusion on the entire case consistent with his innocence, such
absence of explanation or false explanation would itself be an
additional link which completes the chain. [emphasis added in
original]"

"The effect of an adverse inference against an accused person is that
once it is drawn it can be employed to support or corroborate aspects of
the Prosecution?s case."

"In essence, a lie told by an accused can only strengthen or support
evidence if it is clear that (a) the lie was deliberate, (b) it relates
to a material issue and (c) there is no innocent explanation for it:
Archbold, Criminal Pleading, Evidence and Practice 2005 (Sweet &
Maxwell, 2005) at para 4-402."

"Once the reasonable possibility of an accident having occurred is
eliminated...."

"The circumstantial evidence against the accused is compelling."
____________________________________________________________


----------------------------------------------------------------------------
-------

Here is The California Jury Instructions on circumstantial evidence:

[The following Quote is pasted by myself from the referenced site]

____________________________________________________

California's circumstantial evidence rule reads as follows: [Note:
copied, i.e. quoting, from Peo. v. Towle (1982) 31 C3 105. See CALJIC 2.01,
current edition, which memory says remains the same, but I don't have the
volume at hand to confirm.

"The current version of CALJIC [California Jury Instructions, Criminal]
No. 2.01 reads in relevant part:

"... [A] finding of guilt as to any crime may not be based on
circumstantial evidence

unless the proved circumstances are not only

(1) consistent with the theory that the defendant is guilty of the crime,
but

(2) cannot be reconciled with any other rational conclusion. ...

[I]f the circumstantial evidence is su[s]ceptible of two reasonable
interpretations, one of which points to the defendant's guilt and the other
to his innocence, it is your duty to adopt that interpretation which points
to the defendant's innocence, and reject that interpretation which points to
his guilt.

If, on the other hand, one interpretation of such evidence appears to you
to be reasonable and the other interpretation to be unreasonable, it would
be your duty to accept the reasonable interpretation and to reject the
unreasonable."

***

Here's the current version [ December 2004] of CALJIC 2.01, from Lexis:

2.01 SUFFICIENCY OF CIRCUMSTANTIAL EVIDENCE -- GENERALLY



However, a finding of guilt as to any crime may not be based on
circumstantial evidence unless the proved circumstances are not only (1)
consistent with the theory that the defendant is guilty of the crime, but
(2) cannot be reconciled with any other rational conclusion.


Further, each fact which is essential to complete a set of circumstances
necessary to establish the defendant's guilt must be proved beyond a
reasonable doubt. In other words, before an inference essential to establish
guilt may be found to have been proved beyond a reasonable doubt, each fact
or circumstance on which the inference necessarily rests must be proved
beyond a reasonable doubt.


Also, if the circumstantial evidence [as to any particular count]
permits two reasonable interpretations, one of which points to the
defendant's guilt and the other to [his] [her] innocence, you must adopt
that interpretation that points to the defendant's innocence, and reject
that interpretation that points to [his] [her] guilt.


If, on the other hand, one interpretation of this evidence appears to
you to be reasonable and the other interpretation to be unreasonable, you
must accept the reasonable interpretation and reject the unreasonable.

There's a subsequent version called "Sufficiency of Circumstantial
Evidence to Prove Intent," to similar effect, 2.02, I believe.


http://sheridan_conlaw.typepad.com/sheridan_conlaw/circumstantial_evidence_r
ule/

_________________________________________________

For most of the revised California Jury Instructions on evidence, go here:

http://www.languageandlaw.org/JURYINST/COMPARE.HTM

I have said from the beginning that this case is going to be a fairly
close call, and this case largely confirms that. Certainly (especially
in light of Ted's admission that everyone was just doing their jobs), it
is beyond cavil that the D.A. had probable cause to charge Cam. Beyond
that, it is a question of the difference between "more likely than not"
and "beyond a reasonable doubt."
_______________________________________________________

The standards for initial review of the trial court as to sufficiency of
evidence in motion for new trial

______________________________________________________

TRIAL - NEW TRIAL - INSUFFICIENCY OF THE EVIDENCE

People v. Dickens (2005) Cal.App.4th , 05 C.D.O.S. 5925 (Fourth Dist.,
7/5/05, E036144)

Penal Code section 1181(6) permits defendant to move for new trial on ground
that the verdict is contrary to the evidence. Trial court's duty is to
review the evidence independently and satisfy itself that the evidence as a
whole is sufficient to sustain the verdict. (People v. Robarge (1953) 41
Cal.2d 628, 633.) Court may not arbitrarily reject a verdict supported by
substantial evidence, but is not bound by jury's credibility determinations
or weight to be accorded the evidence. If court finds evidence not
sufficiently probative to sustain verdict, it must order a new trial.
(People v. Knutte (1896) 111 Cal. 453, 455.) Reviewing court determines
whether trial court's ruling is supported by substantial evidence, and it is
irrelevant that trial court did not articulate reasons. Disagrees with
People v. Taylor (1993) 19 Cal.App.4th 836.


______________________________________________________________

The standards for case filing by the Los Angeles County District Attorney?s
Office are set forth in its Legal Policies Manual at 1-1. Generally, those
standards require that:

* The available facts must satisfy the prosecutor that the accused is
actually guilty;

* There must be legally sufficient admissible proof apart from the accused?
s statements to establish that the crime occurred;

* There must be legally sufficient admissible proof of the accused?s
identity as the perpetrator; and

* A reasonable and objective fact finder would convict after considering the
admissible evidence and the foreseeable defenses.

________________________________________________________



There's a reason why Geragos is playing his cards the way he is, and
I think he's doing everything right. He didn't really think that the
995 motion had a snowball's chance in hell, but he wanted to make the
Court think about his objections.



Could be. What really suprised me is that Hum never even filed any type of
brief of state arguing against that Defense Motion.

On the other hand...If the Defense somehow doesn't fully understand the
scientific principals involved with the experiments and subsequent
determinations of Hayes' Report, then I can understand why the Prosecutor
would not wish to explain those circumstances fully, as any failure by the
defense to comprehend it fully could only serve to be a very real tactical
advantage for Hum:

Though Geragos and his expert could try to attack the Scientific Evidence
being used against Cam, such attack would fail before the jury when Hayes
would then fully explain the validity of his Report to them, and the
Defense, understanding now for the first time the exact nature of that
evidence, could be completely taken unawares and find themselves at a loss
to argue effectively against it.



Last night I read on what looked to be a legitimate legal resource on the
net the following nugget:

The Plaintiff on a civil case usually gets ruled against by the courts so
that they may not rely upon an expert scientific opinion.

However, a Defendant in a criminal matter rarely succesfully objects to
same, so that such opinion goes before the jury.

More tidbits:

_________________________________________________
EVIDENCE - DEFENDANT'S POVERTY

People v. Harris (2005) Cal.4th , 05 C.D.O.S. 7772 (Cal. Supreme Court,
8/29/05, S058092)

Although evidence of defendant's poverty generally is inadmissible because
it is deemed unfair, here it was rendered relevant by defendant's testimony
that he did not need to commit robbery because he had money.

_____________________________________________

FINANCIAL STATUS - EVIDENCE OF

People v. Cornwell (2005) Cal.4th , 05 C.D.O.S. 7378 (Cal. Supreme Court,
8/18/05, S046176)

Evidence of defendant's depleted bank account and limited means was relevant
to eliminate possible explanations for sudden wealth, although ordinarily
evidence of poverty is not permitted. (United States v. Mitchell (9th Cir.
1999) 172 F.3d 1104.)

________________________________________________



HOMICIDE - LYING-IN-WAIT - SUFFICIENCY

People v. Moon (2005) Cal.4th , 05 C.D.O.S. 7394 (Cal. Supreme Court,
8/18/05, S021054)

Requirements for lying in wait first degree murder under Penal Code section
189 and lying-in-wait special circumstance in Penal Code section 190.2,
subdivision (a)(15) are "slightly different." Here, court focuses on the
special circumstance to test sufficiency of the evidence, since that
contains the more stringent requirements. It requires an intentional murder,
committed under circumstances which include (1) a concealment of purpose,
(2) a substantial period of watching and waiting for an opportune time to
act, and (3) immediately thereafter, a surprise attack on an unsuspecting
victim from a position of advantage. Element of concealment is satisfied by
a showing that defendant's true intent and purpose were concealed by his
actions or conduct. It is not required that he be literally concealed from
view before he attacks the victim. Here, defendant concealed both presence
and purpose from former girlfriend's mother (he had just killed the
girlfriend), then suddenly pushed victim down the stairs and strangled her.



___________________________________________________








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