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PostPosted: Mon Oct 07, 2002 5:11 am 
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Another simple question (maybe you were going to get to it in due time):

Was there ever a charege of "carrying an illegal knife", i.e was the knife the client has legal in Kentucky?

Gene


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PostPosted: Mon Oct 07, 2002 6:55 pm 
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Wow, I just got back to the office after the week-end and find this terrific report.

Congratulations Murray on your verdict, and for your continuing in depth reporting on the case and the surrounding facts.

Massachusetts does have the reputation of being far to the left liberal, but this translates to "I'm liberal to your cause only so far as it does not effect me".

As an example, despite 8 billion dollar cases in the famous Phillip Morris case, juries here become stingy because large money awards affect their annual insurance policies.

Forget a not guilty by reason of insanity in this state!

Please keep the info coming, Murray and thanks again for your contribution to this forum.

By the way Panther, in a high profile Mass case still pending, a defendant was released for DNA evidence and other things that I do not want to wreck the forum with, and has a long way to go if ever.

However there is the possiblity of haveing a record "sealed", but that is another story.

Murray: I don't think Murphy was near your jury, and hope his juror was not from Kentucky (sorry folks, inside joke).

Alan K

------------------
"The Goddess of Justice is Blind"


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PostPosted: Mon Oct 07, 2002 9:23 pm 
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Thank you, Alan.

(Alan's refering to a lawyer joke that was sent me just today by a fellow TKD black belt holder that is notable A) for being funny Image; B) for being one I'd never heard before Image.)

I am going to skip ahead for the sake of the lawyers to cite the main area of the law that caused the instuctions to stretch to twenty-freaking-two (22!) pages: KRS 503.120(1) (Imperfect Self-Defense), and Hager v. Commonwealth, 41 S.W.3d 828 (Ky. 2001). This gives you a chance to catch up on Kentucky law.

What lay-people frequently do not understand is that you do not automatically get instructions on self-defense. You must ask for them, in writing, with examples of exactly what you think you are entitled to, for every instruction. Failure to request the instruction in writing waives the mistake in Kentucky.

(I once moved to set aside the verdict for ineffective assistance of counsel, lost, and then appealed where the defendant had fired a warning shot from his car that actually splintered and hit the victim's right arm in his cart, as the victim was crowding the defendant off a highway one-lane access lane that would have sent the defendant and his 3 year old stepson off the shoulder, off a cliff. {The defendant had confessed and actually said "I feel I acted in self defense. A car is just as deadly a weapon as a gun."} I had not tried the case. The attorney who had never requested a self-defense or defense of others instruction. I lost the appeal, too.)

The Hager decision was written by Justice Cooper, whose handbook on Kentucky Instructions is the standard in my state, i.e., if it's not in Cooper's book, request away, but you're not getting the instruction.

This happened several timea to me in this case. If my wording deviated the slightest from Cooper's, Cooper's won; e.g. Cooper, ("If on the whole case you have reasonable doubt, you shall vote not guilty;" Requested Instruction, ("If you have a reasonable doubt as to any element of an offense, you shall vote not guilty as to that offense."

Case law states that there is no duty to retreat in Kentucky. I had to craft my own instruction, as it does not exist in Cooper's. I didn't get the instruction (but I did get a motion in limine against the prosecutor arguing a duty to retreat sustained).

Hager had killed someone with a knife. His conviction was for the same offense as my client's (Now there's good lawyering!), misdemeanor Assault in the Fourth Degree.

The Commonwealth requested and received a certification of the law.

"The jury was instructed on all degrees of homicide and on the defense of self-protection, subject to both the initial aggressor qualification, KRS 503.060(3), and the imperfect self-defense qualification, KRS 403.120(1). Hager, op. cit.

Cooper went on to discuss the instructions used in the case, which wre a series of interrogatories which attempted to plug in the various variable and lead the jury to the correct combining of the law to the facts. Then he tackled the "Wanton Or Reckless Belief" qualification:

"We note at the outset that a mistaken belief in the need to act in self-protection does not affect privilege to act in self-protection unless the mistaken belief is so unreasonably held as to rise to the level of wantonness or recklessness with respect to the circumstance then being encountered by the defendant. Elliot v. Commonwealth, 976 S.W.2d at 420.

"KRS 503.120(1) provides as follows:

'When the defendant believes that the use of force upon or toward the person of another is necessary for any of the purposes for which such belief would establish justification under KRS 503.050 to 503.110 but the defendant is wanton or reckless in believing the use of any force, or the degree of force used, to be necessary or in acquiring or failing to acquire any knowledge or belief which is material to the justifiability of his use of force, the justification afforded by those sections is unavailable in a prosecution for an offense for which wantonness or recklessness, as the case may be, suffices to establish culapbility....

'The statute first recognizes that all KRS 503 jsutifications, including self-protection, are premised upon a defendant's actual subjective belief in the need for the conduct,constituting the justification and not on the objective reasonableness of that belief.
(Citation omitted.) Secondly, the statute recognizes that a defendant may be mistaken in his belief and that the mistaken belief, itself, may be so unreasonably held as to constitute wantonness or recklessness then being encountered. (Citation omitted.) If so, the satute provides that the justification, e.g., self-protection, is unavailable as a defense having the mens rea element of wantonness, e.g., second-degree manslaughter, or recklessness, e.g. "as the case may be...."

'[H]owever, we have not previously addressed how KRS 503.120(10 affects the defense of self-protection when asserted as a defense to an offense having wantonness or recklessness as the culpable mental state . Shannon
{cited earlier in the decision: Shannon v. Commonwealth, Ky., 767 S.W.2d 548 (1988)- Murray/student} did not address how the statute would affect an unintentional homicide (or assault) because Shannon at 551-553 ("Shannon, Part II") held that self-protection could never be a defense to an unintentional crime. In Elliot, supra, we overruled Shannon, Part II and held that self-protection was available as a defense to an offense predicated on wantonness or recklessness, but did not address the affect of KRS 503.120(1) on a claim of self-protection in that context, because it was not asserted in Elliot that the defendant was mistaken in his belief that he needed to act in self-protection....

'The statute does not provide that a wantonly or recklessly held belief in the need to act in self-protection always reduces a primary offense to a lesser included offense. It provides that an act in self protection committed under a wantonly held belief is not a defense to an offense predicated on wantonness, and that an act in self-protection committed under a recklessly held belief is no defense to an offense predicated on recklessness.'"


Hager, op. cit.

Isn't that clear? Image

More later,

Murray/student


[This message has been edited by student (edited October 07, 2002).]


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PostPosted: Mon Oct 07, 2002 9:57 pm 
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Murray and the group:

In the Commonwealth of Massachusetts we have a similar situation on having to set out at least a prima facie case, before being able to request instructions to the Jury.

Rather than dwell on this and preserve your subject continuity, one can find reports made in this forum on the Massachusetts decisions and positions.

You will see that we are less codified and more common law, at least in this area.

See article on self defense posted 12/19/2001 and "Denial of Self-Defense Instruction" posted 07/24/01.

I am not sure what you have going there, where is seems to be "reckless wanton etc. conduct" v. "reckless wanton etc. self-defense".

Seems very convoluted but I am sure you will enlighten.

Alan K


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PostPosted: Mon Oct 07, 2002 10:39 pm 
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Gee,

Talk about convolution. No wonder the Sicilian mafia believes in its own code of justice. Image

Great job Murray. You sure earn your salary.

------------------
Van Canna


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PostPosted: Mon Oct 07, 2002 10:46 pm 
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Gerry:

The offer was 5 years on Assault 2, no stand on probation. They made us an offer we could refuse.


Gene:

In Kentucky all knives are "deadly weapons" except for ordinary pocket knives and hunting knives(!?!). KRS 500.080(4)(c).

Whether one employs a "deadly weapon" or "dangerous instrument" makes no difference under the homicide and assault statutes; both are treated the same. The only difference is that a "dangerous instrument" requires no permit in order to be carried concealed.

The folding fishing knife in the instant case was never recovered and there was no testimony to establish that it was not a "dangerous instrument" but instead a "deadly weapon." At one point I objected to the prosecutor continually refering to the knife as a "deadly weapon" because of the baseless implication that my client was illegally carrying one, and it was sustained.


Alan:

Seems very convoluted, but I'm sure you will enlighten.


It is, and I'll try.
Image

Van:

Thank you, Van. A lot of things discussed on your Forum went into trial tactics. I do intend to discuss that, of course. Image

Murray/student

For future reference, the Kentucky Revised Statutes may be found at http://www.lrc.state.ky.us/statrev/frontpg.htm




[This message has been edited by student (edited October 07, 2002).]


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PostPosted: Tue Oct 08, 2002 4:26 pm 
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<BLOCKQUOTE><font size="1" face="Verdana, Arial">quote
Quote:
Thank you, Van. A lot of things discussed on your Forum went into trial tactics. I do intend to discuss that, of course.


But of course. Image

But the above statement convinces me even more that you must be a very effective trial lawyer. Image

I'd love to have you in my corner anytime.

------------------
Van Canna


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PostPosted: Tue Oct 08, 2002 10:45 pm 
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Thank you, Van. High praise indeed.

It's often said in criminal cases, after you've done your investigation and have some grasp of the facts (and have spent hours writing out the damned transcripts!), the first thing you prepare is your closing argument

"Closing?" I hear many of you say.

The logic of that is to know what you must say to persuade a jury, and thus know what you have to establish before you can persuasively argue.

I actually go first to preparing the jury instructions. In so doing, I nail down what the law is, and what facts I must persuade the jury support those conclusions.

My proposed instructions consisted of the folowing:

#1: Presumption Of Innocence, Burden Of Proof, Proof Beyond Reasonable Doubt;

#2: Definitions of the following -

Intentionally

Wantonly

Recklessly

Serious Physical Injury

Physical Injury

Dangerous Instrument

Extreme Indifference To Thr Value Of Human Life
- this last one has no statutory definition, I used the examples used in the commentary, i.e. a mental state equivalent to that of one who shoots a firearm into a crowd, occupied autyomobile, or occupied building, or derails a speeding train; I was not allowed the instruction but I was allowed to argue those definitions.

#3 Privilege To Use Physical Force In Self-Defense;

#4 Assault In The First Degree (as to "victim.")

#5 Assault In The Second Degree (as to "victim.")

#6 Assault In The Fourth Degree (as
to "victim.")

#7 Assault In The Second Degree (as
to "ineffectual man.")

#8 Assault In The Fourth Degree (as to "ineffectual man.")

#9 No Duty To Retreat - I was denied the instruction.

#10 Unanimous Verdict

On the day of trial I made two motions in limine - essentially suppression of evidence motions, although technically and procedurally suppression deals with illegallly and unconstitutionally obtained evidence.

My motions, which were sustained, stopped the prosecution from entering: 1) any medical hearsay;

2) any undisclosed prior bad acts, uncharged crimes, or other similar evidence against my clinet. According to our Evidence law, which mirrors the Federal Rules Of Evidence, that eould be KRE404(b) evidence.

The first was to keep anyone other than the physicians from making medical diagnoses, i.e. "The doctor said the wounds were near fatal." The problem with hearsay evidence is that you cannot cross examine and test the person who supposedly originally made the statement about which someone else is testifying. Had the jury heard it and then I objected, well, they still heard it. My order included that the prosecutor admonish his witnesses about this ruing and keep them, from so testifying...if they did anyway, I was setting up a prosecutorial misconduct mistrial motion...one which , if sustained, would preclude re-trial.

The second motion was to avoid being surprised by undisclosed evidence and further to set up a prosecutorial misconduct motion for mistrial if things went that way.

I also moved to separate witnesses, so that the except for the arresting officer and my client, no one else heard all the other evidence.

After preparing the instructions, I had worked on Voir Dire, the questions I would ask the jury panel in order to detect bias.
Beside the usual questions to make sure they understand the presumption of innocence, the burden of proof, that the burden never shifts, proof stonger than preponderence of the evidence, proof stronger than clear and convincing evidence, proof beyond reasaonable doubt on every element of an offense, I needed to find their feelings about self-defense.

So I included questions about the following:
New Testament admonition to turn the Other cheek;

Handgun Control, Inc.;

Was anyone opposed to using force to protect oneself in all cases;

NRA membership or similar organization;

Gun ownership;

Backgrounds in boxing, wrestling, judo, karate, any self-defense form of any sort, or have encouraged a loved one to do so;

Who is affected by the fact that client is charged with using a knife? Who finds that too distasteful to give her a fair trial and presume her innocent?

Anyone ever had to fight for your own life or safety?

How did it affect you?

Were you in a position for making detached, rational judgements, or did things happen too quickly for rational thought?


With these Voir Dire questions, both the prosecutor (A necessary evil that he heard the questions and saw their answers, but I also heard his and saw theirs to his....) and I had much more to go on the prospective jurors' biases.

One thing I did not do and should have: I shouold have asked who had a Concealed Weapons' Permit. CCW permit holders obcviously believe in self-defense, but more importantly, in Kentucky they must go trhough a training class which included training on the laws of assault, homicide, and right to self-defense. Just the sort I want. As it is, one of them identified himself as such anyway and was picked for the jury.

Excellent.

It's a mistake to believe that attorneys select a jury. We don't. We de-select.

If we can prove to the judge's satisfaction that a juror cnnot be fair, we may strike that juror for cause. We have an unlimited number of strikes for cause.

Then there are our peremptory strikes; for almost any racially-neutral reason we wish. With the information gathered through this Voir Dire, we each could see who would be the worst jurors for our case and strike them.

What was left was the pool from which our jury was then reduced by lot to thirteen - twelve and one alternate. Good thing, too; one juror got food poisoning the last day of trial so we had a full jury to hear the entire case and to vote and excused her.

No, I didn't think she was against us and slip her any salmonella...the food in the Justice Center/Hall of Justice is bad enough without anyone doing that. Trust me on that one....

On our jury we wound up with two NRA members (one of whom had been assaulted), three gun owners, two other previously assaulted persons, one CCW permit holder, one person who was instrumental in bringing karate to the schools. (Some of the above fit in miore than one category.)

We had two white men, nine white women, two black women. I had thought the prosecutor was systematically excluding blacks and mounted a Batson v. Kentucky challenge, which lost.


More later,

Murray/student



[This message has been edited by student (edited October 20, 2002).]


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PostPosted: Wed Oct 09, 2002 12:16 am 
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<BLOCKQUOTE><font size="1" face="Verdana, Arial">quote
Quote:
#9 No Duty To Retreat - I was denied the instruction.


Lemme get this straight...In Kentucky, there is no duty to retreat, but you weren't allowed to tell the jury this? Did the prosecutor? Did the judge? How does a jury find this out?

So Kentuckians have a right to stand their ground, but can be convicted for it, because the juries don't have to hear about that right?

What happens if the jury convicts on a serious felony, and a juror later says to he press/judge/whoever, "Well, even though the defendant fought just to defend himself, she had a legal duty to retreat, but he didn't, so we fried her"?

Gene


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PostPosted: Wed Oct 09, 2002 3:08 am 
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<BLOCKQUOTE><font size="1" face="Verdana, Arial">quote:</font><HR>Originally posted by student:
The Hager decision was written by Justice Cooper, whose handbook on Kentucky Instructions is the standard in my state, i.e., if it's not in Cooper's book, request away, but you're not getting the instruction.

This happened several timea to me in this case. If my wording deviated the slightest from Cooper's, Cooper's won; e.g. Cooper, "If on the whole case you have reasonable doubt, you shall vote not guilty;" Requested Instruction, ("If you have a reasonable doubt as to any element of an offense, you shall vote not guilty as to that offense."

Case law states that there is no duty to retreat in Kentucky. I had to craft my own instruction, as it does not exist in Cooper's. I didn't get the instruction (but I did get a motion in limine against the prosecutor arguing a duty to retreat sustained).

<HR></BLOCKQUOTE>

The question never really came up, Gene; the facts of my case plus the motion in limine keeping the prosecutor from arguing duty to retreat sufficed. I suspect I could have and maybe should have argued it to the jury, but I was so swamped trying to cut through 22 pages of instructions that I simply forgot.

Yes, it is the law in Kentucky - but just try and get the judicial imprimatur of an instruction!

Grumble, grumble, grumble....

Murray/student


[This message has been edited by student (edited October 08, 2002).]


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PostPosted: Wed Oct 09, 2002 4:01 pm 
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Murray/student, old friend, Cousin Clarence would have been proud.

VERY nice work. Very nice work, indeed.

Voulez bon temps roulez! - carefully for your client, of course!

Lee Darrow, C.Ht.


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PostPosted: Wed Oct 09, 2002 9:17 pm 
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Lee has seen how fried I can get after trial.

On one such occasion he took me to see an absolutely brainless martial arts flick -Good Guys Wear Black - starring Chuck Norris, Jennifer O'Neil, Ron Neal, Clu Gulager, Bill Wallace, Eric Delaneuville.

It was exactly what I needed.

That was the first time I heard the story about Lee sparring Chuck in tournament and getting disassembled and put together again in the dark by the future Walker, Texas Ranger.... Image

[This message has been edited by student (edited October 09, 2002).]


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PostPosted: Thu Oct 10, 2002 3:51 am 
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CROSS EXAMINATION OF THE DETECTIVE

An attorney cross-examines a witness after the other attorney has had the witness testify directly.

Leading questions are permitted on cross-examination; in fact, on good cross-examination it's almost as if the attorney were testifying, pausing now and then for the witness to say "Yes" or "No."

I had a challenge in this case.

I had to make lay people understand what actually happens in combat to save your life.

I had to get otherwise non-violent people who have been raised on Hollywood and television to realize that what they may think is reasonable are choices that don't exist in real life.

I had to have an expert witness to tell them of the effects of adrenaline.

I had to have an expert witness trained in the use of force.

I had to have an expert witness on violence.

I had no money to buy the services of an expert witness. Nor did I want to tip the prosecution to my strategy by using such a witness in my case in chief.

So I created an expert witness out of the prosecution's own witness - the detective.

I did an Open Records search (Kentucky FOIA) on all use of force complaints against the officer. I started to follow through on his training materials from the state police academy at Richmond, Ky. (I should have followed through but did not.)

I laid a foundation for his training and experience.

I questioned him about the Tueller drill.

I questioned him about the effects of adrenaline. (Before cross-examination I mentioned knowing he must know about it first-hand and asking about a former partner by name - my detective had shoved him out of the way of a bullet; the story hit the papers. [Yeah, I did a computer serach on the detective's name in the local paer archives, as well.]}

I elicited from him the facts that adrenaline can cause changes: increase strength and the pain threshold, distort time perception, decrease fine muscle control, highjack conscious thought.

(This explained both how my client could cut the "victim" thrice without her knowing it, and how the "victim's" pummeling was a real threat to my client.)

I had him agree that he had witnessed the phenomoenon of a small person hyped up on adrenaline who was only subdued after several police officers wrestled him down.

(This reinforced the threat to my client.)


I also brought out that he recalled that I had come to the police station with a camera the day we surrendered the client, got him to agree she had visible injuries, and got him to identify my photogrpahs of her injuries and thus had the jury see them during the prosecution's case.

(This showed the jurors early on the actual damage done by the "victim" to my client.)

The detective also stated that his investigation had revealed that the "victim" had removed her rings prior to the fight. When asked what that meant in his experience, he answered that she either was protecting her hands or her jewelry.

(This helped establish who brought the physical fight to whom; implied that the "victim" had prior fighting experience.)

He confirmed that the witnesses he interviewed were friends of the "victim" and not of my client.

(So whose side do you expect them to take while testifying?)

Without using the term, he placed them well within the perimeter of the Tueller drill vis-a-vis the combatants.

(This reinforced my client's perception of danger.)

He admitted not to searching them that evening (well, he had no reason to) and thus not knowing if any one of them had been armed - just the same as my client did no know.

(Again, it reinforced my client's perception of danger.)

He admitted not to knowing what my client's state of mind was when the ineffectual man got cut. He also agreed that when he originally talked with him the man did not want to prosecute.

(The key to the defense on this charge was that my client did not have the criminal state of mind. He essentially admitted he had no evidence that she did.)

This morning the detective ran into me at court and congratulated me on a well-tried case. I told him, sincerely, that I don't think I couold have pulled it off without his truthful testimony.

I believe that.

Were it not for people like Tony Blauer, Van Canna, Darren Laun, et alia, I would not have known the right questions to ask to impress upon the jury the actuality of combat.

If I'm boring you, I'll stop now.

If you want any more, let me know.

Murray/student




[This message has been edited by student (edited October 20, 2002).]


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PostPosted: Thu Oct 10, 2002 4:04 am 
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I think that's brilliant lawyering.

I want more. Image

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Van Canna


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PostPosted: Thu Oct 10, 2002 11:17 am 
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<BLOCKQUOTE><font size="1" face="Verdana, Arial">quote:</font><HR>Originally posted by Van Canna:
I think that's brilliant lawyering.<HR></BLOCKQUOTE>

Aw, shucks....

<BLOCKQUOTE><font size="1" face="Verdana, Arial">quote:</font><HR>

I want more. Image

<HR></BLOCKQUOTE>

Be careful what you seek.

Image

Murray/student

[This message has been edited by student (edited October 10, 2002).]


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