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UnderGround Forums >> Joe Son from a defense point of view


10/11/08 1:03 PM
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bflex
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Here are some issues that are important to consider regarding Son's new charges:

First, I don't know the California Rules of Evidence, but I am going to assume that they mirror the Federal Rules or are subsantially similar.

This case is 18 years old. Even with the DNA evidence, that raises substantial problems. Witnesses are going to be the main problem. Is the victim going to testify? We don't know. Without her testimony that a crime occurred, even with DNA, there is no case. She may have moved on with her life and not want anything to do with this. Also, they have to find this lady. She may have moved, she might be dead. They just might not be able to locate her. Her reports to the police that there was a rape would be inadmissable. Since it obviously didn't contain an identification, there is no Crawford issue. This lady has to be present and willing to testify. No exceptions.

Chain of custody may or may not be an issue. I would assume that it will not, but it wouldn't stop me from raising hell about it to preserve the issue for appeal. Finding the individual who took the sample and all the individuals who it passed through to the lab.

Finding the individual who actually performed the testing to testify as to the results. Maybe a hearsay issue if that individual can not be located. Again, maybe the individual can't be found. If the individual is unavailable, the State will look for exceptions, but I don't know of any.

In 18 years, people retire from the police department or crime lab, move on with their lives, drop off the radar and sometimes die. A person's recolection of an event and/or story changes. Memories fade.

The bottom line is that the defense needs to exploit the length of time through evidentiary issues. It may or may not work. The State has more than enough for PC, but may not be able to overcome the evidentiary problems.

Should be interesting from an academic prospective.
10/11/08 1:07 PM
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Old noob
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He could say his genitalia have already been punished, no need for further retribution.

Not that I would agree as a judge, but I would argue that if I was him.
10/11/08 1:07 PM
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stickman
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Interesting points. Watch some idiots come on here and start bitching you out for "supporting a rapist".
10/11/08 1:07 PM
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mrzipplokk
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 DNA
10/11/08 1:11 PM
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bflex
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stickman - it will happen.

mrzipplokk - PROPER EVIDENTIARY FOUNDATION? DNA doesn't matter if you can't get it admitted into evidence.
10/11/08 1:20 PM
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unbrokenwill
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I cant believe you are attempting to defend this bastard. He is a rapist, bitch. You should be ashamed of yourself!
10/11/08 1:20 PM
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bflex
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I would like to say that I would hope that the State has all their ducks in a row before getting a warrant on these charges. However, having worked with the rocket scientists from the State for several years now, they probably don't.
10/11/08 1:21 PM
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mrzipplokk
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 Blame that on Kirik D B R. Sorry :-(
10/11/08 1:23 PM
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bflex
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unbrokenwill - This will piss you off, I walked a guy who "allegedly" molested an 8 year old. I also got a guy a ten year sentence when he was charged with raping a 9 year old twice!

My job as a defense attorney is simply to get my client the softest landing possible. It doesn't mean I condone their behavior if they are indeed guilty.

On a side note, I don't do sex cases anymore. However, if somebody paid me the right fee, I may reconsider. It would have to be substantial.
10/11/08 1:27 PM
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kidpresentable
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It seems to me that there are still several ways the police report could come in even if the woman is unavailable. The present sense, state of mind or excited utterance exception to hearsay may apply depending on how and when the police report was taken. The exemption to hearsay for medical diagnosis may also apply depending on the circumstances. And of course, there is always the exception to hearsay as justice requires if the witness is unavailable.
10/11/08 1:38 PM
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bflex
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Ok kidpresentable, let's chat. You know your rules which is good, very good. The best class you can take in law school. Know the rules and they will serve you well.

To the extent that it would be applicable in this matter, the present sense impression or state of mind exception is addressed in the Crawford decision. If admissiable, which is a BIG if, those are only going to be admissable for a limited purpose relating to the police investigation, not for the truth of the matter asserted that she was raped. Defense wins on a judgment of acquital after the State rests. REMEMBER THIS, the written police report is ALWAYS INADMISSABLE!

You bring up a good point about the statement for the purpose of medical diagnosis. However, was this for a medical diagnosis or for the purposes of furthering a police investigation. Who was the statement given to? Was their role for medical treatment or investigative purposes?

I know that you are a new lawyer and seriously, congratulations. However, remember that the "catch all" exception is rarely used and even more rarely in criminal cases. It is extremely disfavored by the appellate courts. Don't ever expect to rely on it.

Mark my words, if the lady doesn't show, the ship is sunk. If she does show, it gets better, but is by no means a slam dunk.
10/11/08 1:57 PM
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NHBStriker
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bflex, I used to work with a guy who was going to school to be a lawyer and had many a conversation with him. It was fascinating to me how he had divorced himself from thinking in terms of "right" and "wrong" but only in terms of "ethics" as they were being taught to him in law school.

Does it bother you at all that you got a guy a ten year sentence when he was charged with raping a 9 year old twice?

Do you care if he actually did it or not?
10/11/08 2:14 PM
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bflex
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NHBStriker - "Does it bother you at all that you got a guy a ten year sentence when he was charged with raping a 9 year old twice?"

Yes. That was the last sex case I handled. No mas. He maintains that he was innocent, but it wasn't a good trial case. Did he do it? He says no, girl says yes, evidence cut both ways. The risk of two life sentences without parole was not worth it to him. The allegations made me sick.

"Do you care if he actually did it or not?"

Yes and no. Personally, yes. Professionally, no. I haven't had all that many clients go to prison. So that is still tough for me to watch, but it doesn't make me lose sleep at night. The hardest part for me wasn't regarding his actual guilt or innocense, but seeing an entire family and group of friends torn apart. So many people's lives were ruined. This is the type of shit people never get over. It was tragic for everybody involved. I feel for the girl who, to a certain extent, was being used as a pawn. I feel for my client as his family was torn apart. He will never speak to his father again. His mother ended up divorcing his father over this. His other children are with extended family who are divided over contact.

After that experience, I have gracefully bowed out of voluntarily representing people accused of sex crimes. I've gotten a few minor appointments on violations of probation, but nothing substantive. Nothing quite like it in the criminal justice system.
10/11/08 3:07 PM
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kidpresentable
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For the present sense impression/state of mind exempetion, I would think it could be admissible if the witness is unavailable because the is testimonial in that the declarant could reasonably believe that the statements would be used for prosecution. Maybe I am misunderstanding Crawford but if it is testimonial, can't it then go to the truth of the matter?

For the medical diagnosis, I agree that more would have to be known. But if you can even make a it a somewhat close call, my guess is that the judge would let it in. That is something my evidence professor really stressed, that ultimately the judge to a certain point can let in what they want because the standard for reversal is so strict.
10/11/08 3:42 PM
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CockneyBlue
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OK, is your job actually to get them the minimum sentence or is it to ensure that the trial is totally fair? Two different things IMHO.

I am not a lawyer or legally trained in any way therefore this is just as it is written a question. If your job is to get them the minimum sentence, where is that written?
10/11/08 3:54 PM
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WoodenPupa
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What are some important case precedents for DNA based convictions on very old cases? How did those cases play out?
10/11/08 4:11 PM
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thembones
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CockneyBlue - OK, is your job actually to get them the minimum sentence or is it to ensure that the trial is totally fair? Two different things IMHO.

I am not a lawyer or legally trained in any way therefore this is just as it is written a question. If your job is to get them the minimum sentence, where is that written?


I'm not a lawyer, but from what I understand in an adversarial system, the defense is simply an advocate for their client...they don't have a duty to ensure that the trial is "fair" (whatever that means).
10/11/08 4:38 PM
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kidpresentable
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CockneyBlue - OK, is your job actually to get them the minimum sentence or is it to ensure that the trial is totally fair? Two different things IMHO.

I am not a lawyer or legally trained in any way therefore this is just as it is written a question. If your job is to get them the minimum sentence, where is that written?


Your job is to be as good an advocate as you can be for you client (without lying, etc.). Your opposition should be doing the same. The trial reaches a "fair" outcome because both sides do such.
10/11/08 5:10 PM
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NHBStriker
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Thanks for your response bflex. The tone of your answer restores my faith in humanity a little bit :)
10/11/08 5:18 PM
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KenBania
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What if they had consensual sex, before she was attacked by someone else?
10/11/08 5:24 PM
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big fatso
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MDF tm - was it tastefully done?


The case hinges on this sole question, imho.
10/11/08 5:39 PM
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WoodenPupa
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Maybe they can squeeze one of the other gang members to roll over on Joe. Would that testimony be enough for a conviction in absence of the victim's testimony?
10/11/08 5:50 PM
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Ryan Wood
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If I was on the defense, Exhibit A would be footage of Joe getting his dick pummeled by Hackney. It has nothing to do with the case, but it'd just be nice for everyone involved to see it again.
10/11/08 7:56 PM
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CockneyBlue
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OK so where within the definition of being an advocate does it state that your job is to get the minimum sentence for your client (or maximum if you are prosecuting?)

Again just asking.

I guess that is the weakness of the system, it assumes that the two advocates are equally good in order to provide a fair outcome.
10/11/08 8:37 PM
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kidpresentable
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It comes from the nature of the adversarial process. Certainly there are other systems used around the globe but I think ours (or at least the idea of it) produces the fairest results. Certainly there are weakness such as judges being elected when they are supposed to be insulated from political pressure or as you rightly pointed out, the fact that money can often buy better trained advocates. But, at least in my humble opinion, the unjust outcomes are the outliers that result from any system, no matter how perfect, being put into practice.

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