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355 Comments by Publius

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Seventh day of deliberations ends with no verdict in Oddone case

You are correct to a point. Any witness on the stand can assert his Fifth Amendment privilege against self incrimination at any time. HOWEVER...

Once a person testifies to a topic that is under consideration in that case it is fair to cross examine the witness on that point. The witness may, nonetheless, assert his Fifth Amendment right and stop answering questions. HOWEVER...

If the assertion of the Fifth Amendment prevents cross examination of a topic testified to on direct examination, then the Court would strike his/her testimony and direct the jury to disregard the testimony. That is worse than sitting down and keeping quiet in the first place." Dec 8, 09 9:07 AM

§ 310.30. Jury deliberation; request for information

At any time during its deliberation, the jury may request the court for further instruction or information with respect to the law, with respect to the content or substance of any trial evidence, or with respect to any other matter pertinent to the jury's consideration of the case. Upon such a request, the court must direct that the jury be returned to the courtroom and, after notice to both the people and counsel for the defendant, and in the presence of the defendant, must give such requested information or instruction as the court deems proper. With the consent of the parties and upon the request of the jury for further instruction with respect to a statute, the court may also give to the jury copies of the text of any statute which, in its discretion, the court deems proper." Dec 8, 09 9:53 AM

I agree with you. The jury should have the entire charge provided to it in writing. It should not be limited to the elements, and it should not require either a request from the jury and certainly should not require the consent of both parties for submission of the legal instructions.

Either we trust juries to make intelligent and informed decisions or we don't. Two hundred plus years ago we chose the former when the constitution was ratified." Dec 8, 09 11:46 AM

Suspended Westhampton Beach Village Police officers return to work

1.Has the Westhampton Village Board, as commissioners of police, properly overseen the functioning of the WHB PD?

2.Has Chief Dean properly overseen the functioning of the WHB PD?

3.Does the WHB PD properly function?

My answer to all three is No. For me what matters is the answer to question 3 which is: No, the WHB PD does not properly function.

Do we continue to pay for a PD that does not function and is right now nothing more than a lot of boys with guns, fast cars, and a perpetual liability to the taxpayers for any variety of civil lawsuits?

Should the taxpayers be exceedingly generous and give them all, the Trustees, the Chief, and the PD officers a chance to straighten up and do it right?

Do we abolish the department and eliminate the administrative salaries and extra costs associated with running a small department.

Do we abolish the department and spread the risk of liability for police negligence / misconduct over the larger Southampton tax base, or instead retain these risks for the village alone?

Its too bad the Trustees, the Chief, and the Department haven't started reading off the same page. You insist that the Chief is on the right page, but that isn't enough whether that is true or not.

A small department, in theory, could be very good but it hasn't been in WHB." Dec 8, 09 6:40 PM

Seventh day of deliberations ends with no verdict in Oddone case

It seems that the jury is past the question of whether Mr. Reister first touched Mr. Oddone. (you use the term "assault" that is a loaded word which in a criminal context includes intending to, and causing physical injury)

The repeated request for instructions by the jury seems to suggest they are focused on the element that differentiates the four charges under consideration.

1. the intent to kill
2. the intent to cause serious physical injury
3. the conscious disregard of a substantial and unjustifiable risk that Mr. Reister could be killed.
4. the failure to perceive a substantial and unjustifiable risk that Mr. Reister could be killed.

There is a little more detail to the charges in this regard. But that is the essence of Murd. 2, Man.1, Man. 2 and Crim. Neg Homicide.
" Dec 8, 09 7:06 PM

Suspended Westhampton Beach Village Police officers return to work

Could be.

WHB asked Suffolk IAB to investigate the circumstance surrounding a missing weapon Suffolk IAB did not reach any conclusions with respect to the weapon.

Suffolk IAB then made its own accusations against two officers. That did not resolve the question given to them. It only created another question, and that is whether their allegations are true.

One of those allegations from the Suffolk IAB, without more explanation is bizarre.

In substance that allegation was that a WHB Police Officer was attached to a polygraph machine, he was asked a question, and the machine said HE DID NOT LIE, and Suffolk PD accused him of tricking their machine.

My point is that this is turning in to a mess and we haven't even begun the Kabot trial yet.

What do you say about question 3 above ?" Dec 8, 09 7:40 PM

From what you said:

"The Westhampton Beach PD is the JOKE of Suffolk"

I assume you agree that WHB PD does NOT properly function." Dec 8, 09 10:21 PM

Seventh day of deliberations ends with no verdict in Oddone case

It is evident that many who post here come with a variety of experiences both good and bad. These varied experiences lead the people who post here to different conclusions about what they think should happen in this case all the way from conviction for murder to outright acquittal of all charges. You can be sure that the members of the jury come to the deliberation room with the same variety of experiences.

Each person who posts here can sit at their computer and without personal inconvenience log on or log off from discussions, all the while maintaining a principled but unyielding position. We ask the jurors to be different than us. They don't get to log on or off, and they are asked to examine and re-examine their positions with the goal that they ultimately reach unanimous agreement.

Imagine if you were tasked to reach a unanimous decision with those who post here. Would you be able to do it? I want to take a moment to thank this jury for the commitment of time they have made to this case. So many people avoid jury duty, and it is easy to shirk this civic obligation. In the end each of these jurors will be richer for the experience, but right now they are undertaking an extraordinarily challenging job. Thanks to the 12 plus 2 alternates for serving.

This jury has been working productively, they are working on the evidence and requesting instructions on the law. Those are the tools of productive persuasion in the jury room. They have not thrown up their hands, however, exasperated they may be at this point. That is a remarkable thing. Imagine sharing this deliberative process with the others who post here.

Okay, that was pretty preachy. sorry.

Below I have provided the standard jury charge that is given to a jury that says it is deadlocked so that those who are interested can read it, if not don't and I still won't have wasted newsprint.

There has been no deadlock note given, but if one is forthcoming you can expect the following instruction:

Deadlock Charge

Ladies and gentlemen, I have your note indicating that you have been unable to agree on a verdict.

As I told you in my initial instructions, any verdict you return [on any count], whether guilty or not guilty, must be unanimous. If you cannot reach a unanimous agreement [on a particular count], you cannot return a verdict [on that count], and a new trial will have to be scheduled before a different jury.

It is not, however, uncommon for a jury to have difficulty initially in reaching a unanimous verdict, and it is not uncommon for a jury to believe that they will never be able to reach a unanimous verdict. But, after further deliberations, most juries are able to reach a unanimous verdict. And, so, I will ask you to continue your deliberations.

But before I do, I want to remind you that, when this trial began, many prospective jurors were called and questioned. Many were excused for one reason or another. But you ladies and gentlemen were selected to serve. That means that of all the prospective jurors called in this case, you were the ones in whom both sides expressed confidence. Both sides were convinced that each of you would be fair and impartial, that each of you would listen carefully to the evidence, to the arguments, and to the law, and that each of you would deliberate with your fellow jurors and work hard to reach a unanimous verdict that was consistent with the law and the evidence. Both sides continue to have confidence in you, as do I.

Ladies and gentlemen, you make up a very good jury. There is no reason to believe that the presentation of this case again would be to a jury that is any more intelligent, reasonable, hard working, or fair than you are.

I want to emphasize that I am not asking any juror to violate his or her conscience, or to abandon his or her best judgment. Any verdict you reach must be the verdict of each juror, and not mere acquiescence in the conclusion of others. But I am asking you to continue deliberating, and to resume your deliberations with an open mind.

Start with a fresh slate. Do not feel bound by how you felt before, whether you favored conviction or acquittal. Have the courage to be flexible. Be willing to change your position if a re-evaluation of the evidence convinces you that a change is appropriate. Do not, out of pride or stubbornness, adhere to an opinion or conclusion that you no longer believe is correct.

Be honest with yourselves and with the other jurors. Listen to the other jurors and evaluate what they have to say. Do not let anything prevent you from carefully considering what they say. Remember that each of you made a commitment when you became a juror that requires you to reason and deliberate together to reach a fair and a just verdict based only on the evidence. Of course, while a discussion among all jurors may at times be intense, I'm sure you understand that it can and should also be respectful of the feelings and opinions of other jurors.

I urge that each of you make every possible effort to arrive at a just verdict here. Make certain that the decision you reach is based solely on the evidence and the law, and is not influenced or affected by sympathy for or against any individual, or for or against either side. Be sure that no baseless speculation, no bias or prejudice for or against any individual, enters into your deliberations.

If I can help you in any way, whether through a further or repeated readback, or through a clarification or restatement of the law, I stand ready to do so.

Again, please make every effort consistent with your conscience and the evidence in this case to harmonize your views and decisions in this case with those of the other jurors. To the best of your ability, I ask you to apply common sense and good judgment.

Finally, ladies and gentlemen, I appreciate that the process of deliberations can be difficult. Frankly, it wasn't intended to be easy. So, in accord with your oath [and your promise to me at the beginning of the trial], please continue to deliberate with a view towards reaching a verdict." Dec 9, 09 8:31 AM

Suspended Westhampton Beach Village Police officers return to work

"Against the advice of a police union attorney, Officer Bruetsch took a polygraph exam on July 15 and was asked three questions: “Did you touch that gun? Did you touch that gun without the owner’s knowledge? Did you put that gun in the officer’s car?” The officer overseeing the exam concluded that Officer Bruetsch’s responses were “indicative of a person intending to mask deception,” according to the report." This is from the Southampton Press." Dec 9, 09 9:17 AM

Seventh day of deliberations ends with no verdict in Oddone case

The link to all pattern jury instructions used throughout NY is below:

http://www.courts.state.ny.us/cji/

There are times judges have novel issues which require them to take language directly from case law and compose their own, but these are pretty comprehensive. If you go to Penal Charges, the homicide instructions are under Article 125." Dec 9, 09 11:54 AM

Suspended Westhampton Beach Village Police officers return to work

That's fair comment. I did infer that IF the machine had indicated deception (a lie) they would have said so in their report.

Instead, the "officer overseeing" the exam says that his answers were "indicative of a person intending to mask deception."

What conclusion do you draw from these reported facts?

I also find it notable that one of the charges that had been brought was founded upon this alleged intention to mask deception.

In the final analysis, these are all things that would have been fodder for a hearing which apparently won't happen.

Nonetheless, I stick with question 3, and don't need to get into the nitty gritty of which party bears how much responsibility for a long term dysfunctional PD. I am sure there is plenty of blame to go around. I just think the residents should send a clear message to all involved that this is completely ridiculous and they need to clean it up or the gig will be up.

I have a full appreciation of how former PO Kametler's position as trustee and as the necessary third vote would be galling to anyone involved. The absence of Ms. Birk was, in my opinion, a dodge move and we need better than that. " Dec 9, 09 12:45 PM

I agree with your remarks about the "artistry" involved in polygraph examinations. It is why I find it remarkable that one of the charges would be based on such artistry.

If you were a resident taxpayer of WHB would you vote to abolish or "disband" the WHB PD? If so, why the defense of Chief Dean? Are you of a mind that at some point during his tenure the PD was functioning properly, if so, when was that?" Dec 9, 09 1:37 PM

Ms. McGinnis pointed out that the police department is the village’s largest expense. It accounts for about 28 percent, or $2.5 million, of the village’s $8.93 million budget for 2009-10. That figure does not include employee benefits like health insurance, Ms. McGinnis said." Dec 9, 09 3:41 PM

That could be throwing the baby out with the bath water." Dec 9, 09 5:24 PM

Westhampton Beach has nearly burned through its budget for labor attorney fees

$190,423

from:

http://www.seethroughny.net/Payrolls/tabid/55/Default.aspx

Comparing one overpaid chief of police does not mean they aren't all overpaid. We do not live in a high crime area, we have a small jurisdiction, with only a handful of officers.

The fish head stinks along with the rest of the fish. to paraphrase another post." Dec 10, 09 8:04 AM

Seventh day of deliberations ends with no verdict in Oddone case

"Assistant District Attorney Denise Merrifield asked Judge Hinrichs to only read for the jurors the first two charges—second-degree murder and first-degree manslaughter—out of the four charges the jury has to choose from should jurors decide to find Mr. Oddone guilty."

When the prosecutrix wants the jury to have less information to make its decision rather than more. What does that tell you about her own private assessment of the application of the law to the facts?

Judge Hinrichs has been fair, he approaches his job with integrity, and while at times reasonable people could differ from his determinations, you can count on his decisions being based upon the consistent goal that justice be served." Dec 10, 09 9:19 AM

Westhampton Beach has nearly burned through its budget for labor attorney fees

Just more sunlight

Agency Last, First Pay Basis Rate YTDPay
Westhampton Beach Barosa, Kathleen A $75,365
Westhampton Beach Benkov, Charles R $75,365
Westhampton Beach Betts, Gair G $11,817
Westhampton Beach Bigora, Kenneth J $86,305
Westhampton Beach Bruetsch, Michael J $119,720
Westhampton Beach Cunneen, Stephen M $128,722
Westhampton Beach De Martino, Marc W $21,206
Westhampton Beach De Rubeis, Andrew J $42,419
Westhampton Beach Dean, Raymond E $190,423
Westhampton Beach Dolomite, Daniel D $4,403
Westhampton Beach Frano, Jeffrey A $21,229
Westhampton Beach Fusco, Nicholas A $137,321
Westhampton Beach Gholson, Ronald L $4,358
Westhampton Beach Giedra, Mark K $61,173
Westhampton Beach Gionta, Leanne R $37,505
Westhampton Beach Gonce, Trevor T $146,750
Westhampton Beach Gordon, George B $94,962
Westhampton Beach Hamor, Edwin C $131,357
Westhampton Beach Havens, John P $87,391
Westhampton Beach Houlihan, Paul J $103,047
Westhampton Beach Hubbard, Thomas G $131,410
Westhampton Beach Kearns, John F $85,326
Westhampton Beach Kennedy, Melvin T $58,692
Westhampton Beach Laube, Kerry S $135,458
Westhampton Beach Laube, Robert A $255
Westhampton Beach Liggon, Gregory A $77,527
Westhampton Beach Lindtvit, Elizabeth A $75,667
Westhampton Beach Lucas, Ryan R $105,604
Westhampton Beach Mc Ginnis, Brian P $49,150
Westhampton Beach Mc Ginnis, Kathleen J $106,910
Westhampton Beach Mc Manus, Steven J $137,100
Westhampton Beach Mills, Ronald E $40,839
Westhampton Beach Napoli, Bridget A $61,181
Westhampton Beach Nordman, Robert E $132,688
Westhampton Beach Owen, Christine T $76,502
Westhampton Beach Owen, Keith D $55,342
Westhampton Beach Pesapane, Joseph E $83,738
Westhampton Beach Platt, Jeffrey K $11,798
Westhampton Beach Prescott, Brian A $119,032
Westhampton Beach Rogozinski, Kerry $53,846
Westhampton Beach Smith, Stephen P $66,661
Westhampton Beach Sorensen-Wooden, Eileen M $22,092
Westhampton Beach Speer, Thomas J $121,273
Westhampton Beach Stanton, Linda I $43,303
Westhampton Beach Storan, James M $376
Westhampton Beach Strain, Henry A $69,269
Westhampton Beach Tebaldi, Richard $8,580
Westhampton Beach Towers, Rosemary M $53,673
Westhampton Beach Towers, Timothy R $70,390
Westhampton Beach Tudisco, Albert A $66,012
Westhampton Beach Yakaboski, Mark J $23,046
" Dec 10, 09 10:00 AM

Seventh day of deliberations ends with no verdict in Oddone case

"But, as it is, we have the wolf by the ear, and we can neither hold him, nor safely let him go. Justice is in one scale, and self-preservation in the other."
- Thomas Jefferson to John Holmes, (discussing slavery and the Missouri question), Monticello, 22 April 1820.

This is not a question of the extension of slavery, but there is a similar dilema" Dec 10, 09 3:03 PM

You have convinced me. Out of 12 jurors there will be at least one juror who will realize the point you just made and refuse to ever put Mr. Oddone into the hands of correction officers so that they can exact their own personal vengeance.

That leave a choice between mistrial and acquittal. " Dec 10, 09 4:31 PM

§ 270.35. Trial jury; discharge of juror; replacement by alternate juror

1. If at any time after the trial jury has been sworn and before the rendition of its verdict, a juror is unable to continue serving by reason of illness or other incapacity, or for any other reason is unavailable for continued service, or the court finds, from facts unknown at the time of the selection of the jury, that a juror is grossly unqualified to serve in the case or has engaged in misconduct of a substantial nature, but not warranting the declaration of a mistrial, the court must discharge such juror. If an alternate juror or jurors are available for service, the court must order that the discharged juror be replaced by the alternate juror whose name was first drawn and called, provided, however, that if the trial jury has begun its deliberations, the defendant must consent to such replacement. Such consent must be in writing and must be signed by the defendant in person in open court in the presence of the court. If the discharged juror was the foreperson, the court shall designate as the new foreperson the juror whose name was second drawn and called. If no alternate juror is available, the court must declare a mistrial pursuant to subdivision three of section 280.10.

2. (a) In determining pursuant to this section whether a juror is unable to continue serving by reason of illness or other incapacity, or is for any other reason unavailable for continued service, the court shall make a reasonably thorough inquiry concerning such illness, incapacity or unavailability, and shall attempt to ascertain when such juror will be appearing in court. If such juror fails to appear, or if the court determines that there is no reasonable likelihood such juror will be appearing, in court within two hours of the time set by the court for the trial to resume, the court may presume such juror is unavailable for continued service and may discharge such juror. Nothing contained in this paragraph shall affect the court's discretion, under this or any other provision of law, to discharge a juror who repeatedly fails to appear in court in a timely fashion.

(b) The court shall afford the parties an opportunity to be heard before discharging a juror. If the court discharges a juror pursuant to this subdivision, it shall place on the record the facts and reasons for its determination that such juror is ill, incapacitated or unavailable for continued service.

(c) Nothing contained in this subdivision shall affect the requirements of subdivision one of this section pertaining to the discharge of a juror where the trial jury has begun its deliberations.


Whether a juror will be discharged upon his/her request based upon religious concerns will largely turn on what commitments were made at the beginning of the case. You can be sure any juror will be encouraged to continue. I am not sure where Hanukkah falls on the hierarchy of Jewish holidays, and whether a genuine religious protest would be offered.

Replacement of a juror who has been discharged requires consent at this point and absent that a mistrial would be declared." Dec 10, 09 9:17 PM

Sure. Two jurors are gone already.

But seriously, the PD is not above intimidation and when a case involves a victim from the law enforcement community the motivation to obtain "justice" increases and does not always stay within bounds. The ends justify the means.

I think you have to concede that Mr. Oddone has been held at Rikers because his safety could not be assured in either Suffolk of Nassau County Correctional Facilities where the deceased was known.

The question remains whether Mr. Oddone can be protected if he is incarcerated upon a conviction. From the posts here it is clear some people don't care, but I hope that most do." Dec 11, 09 7:43 AM

http://www.martytankleff.org/Gui/Content.aspx?Page=SICReport

The SIC Report should be mandatory reading for all prospective jurors. A link to that report can be found above. " Dec 11, 09 8:31 AM

maryb123:

username1 is entitled to her opinion. When she refers to the State as captors of Mr. Oddone it may be based, at the very least, upon her opinion that the bail set is excessive, that is routine here in Suffolk County.

In fact, in a recent homicide case a young man was granted bail, he was making his court appearances as required, but because friends visited him at his home on prom night (a violation of a bail condition) the DA got bail revoked, and into jail he went. Bail is to assure a person, who is presumed innocent, will appear in Court (what prom night visitations have to do with that issue I will never no) That was a new judge, Barbara Kahn, and she knows better now, we don't let accused murderers out on bail, never mind the constitutional prohibition against excessive bail.

Never mind the impairment of the right to counsel in this case when Defendant is being taken back and forth to Rikers Island every day.

What is sad for the Reister's is that the system is being seriously challenged and he may not get a measure of justice he might be entitled to.

I don't pretend to know because I wasn't there. It might just have been a fight and a guy with a previous existing condition unfortunately died. It might have been this prolonged strangulation with murderous intent.

The process is critical. Judge Hinrichs is very good, but he can't change it all from the bench.

" Dec 11, 09 1:07 PM

It is time to re-examine the question of bail. The case is in, the jury can't decide, by force of reason it is at the very least a weak case for Murd. 2 or there would be a verdict. Mr. Oddone has been in jail for 1 year and 3 months that would be credited towards any sentence.

Time to assess whether a person who is presumed innocent should continue to be held on this case.

some of the statutory criteria for bail:

(vii) If he is a defendant, the weight of the evidence against him in the pending criminal action and any other factor indicating probability or improbability of conviction; or, in the case of an application for bail or recognizance pending appeal, the merit or lack of merit of the appeal; and

(viii) If he is a defendant, the sentence which may be or has been imposed upon conviction." Dec 11, 09 3:05 PM

In addition to the ordinary criteria for bail, on an application for bail pending appeal the Court must look to the likelihood of success on appeal. In other words, what is the appealable error?

The longer this goes, however, it looks like a mistrial is in the result coming, and that would not be pending appeal, but rather pending a re-trial of the case and whatever counts remain if a partial verdict had eliminated any counts." Dec 11, 09 3:32 PM

§ 310.70. Rendition of partial verdict and effect thereof

1. If a deliberating jury declares that it has reached a verdict with respect to one or more but not all of the offenses submitted to it, or with respect to one or more but not all of the defendants, the court must proceed as follows:

(a) If the possibility of ultimate agreement with respect to the other submitted offenses or defendants is so small and the circumstances are such that if they were the only matters under consideration the court would be authorized to discharge the jury pursuant to paragraph (a) of subdivision one of section 310.60, the court must terminate the deliberation and order the jury to render a partial verdict with respect to those offenses and defendants upon which or with respect to whom it has reached a verdict;

(b) If the court is satisfied that there is a reasonable possibility of ultimate agreement upon any of the unresolved offenses with respect to any defendant, it may either:
(i) Order the jury to render its verdict with respect to those offenses and defendants upon which or with respect to whom it has reached agreement and resume its deliberation upon the remainder; or
(ii) Refuse to accept a partial verdict at the time and order the jury to resume its deliberation upon the entire case.

2. Following the rendition of a partial verdict pursuant to subdivision one, a defendant may be retried for any submitted offense upon which the jury was unable to agree unless:

(a) A verdict of conviction thereon would have been inconsistent with a verdict, of either conviction or acquittal, actually rendered with respect to some other offense, or

(b) The submitted offense which was the subject of the disagreement, and some other submitted offense of higher or equal grade which was the subject of a verdict of conviction, were so related that consecutive sentences thereon could not have been imposed upon a defendant convicted of both such offenses.

3. As used in this section, a "submitted offense" means any offense submitted by the court to the jury, whether it be one which was expressly charged in a count of the indictment or a lesser included offense thereof submitted pursuant to section 300.50." Dec 11, 09 3:55 PM

Deliberations in Oddone trial resume Monday with testimony reread to jury

Mr. Shaw's amplification is very important.

A partial verdict has not been taken. A request for that to be done has been denied by the judge. While it seems unlikely, the jury could return to it and render a different verdict. As Mr. Shaw said there has been no official partial verdict.

§ 310.70. Rendition of partial verdict and effect thereof

1. If a deliberating jury declares that it has reached a verdict with respect to one or more but not all of the offenses submitted to it, or with respect to one or more but not all of the defendants, the court must proceed as follows:

(a) If the possibility of ultimate agreement with respect to the other submitted offenses or defendants is so small and the circumstances are such that if they were the only matters under consideration the court would be authorized to discharge the jury pursuant to paragraph (a) of subdivision one of section 310.60, the court must terminate the deliberation and order the jury to render a partial verdict with respect to those offenses and defendants upon which or with respect to whom it has reached a verdict;

(b) If the court is satisfied that there is a reasonable possibility of ultimate agreement upon any of the unresolved offenses with respect to any defendant, it may either:
(i) Order the jury to render its verdict with respect to those offenses and defendants upon which or with respect to whom it has reached agreement and resume its deliberation upon the remainder; or
(ii) Refuse to accept a partial verdict at the time and order the jury to resume its deliberation upon the entire case.

2. Following the rendition of a partial verdict pursuant to subdivision one, a defendant may be retried for any submitted offense upon which the jury was unable to agree unless:

(a) A verdict of conviction thereon would have been inconsistent with a verdict, of either conviction or acquittal, actually rendered with respect to some other offense, or

(b) The submitted offense which was the subject of the disagreement, and some other submitted offense of higher or equal grade which was the subject of a verdict of conviction, were so related that consecutive sentences thereon could not have been imposed upon a defendant convicted of both such offenses.

3. As used in this section, a "submitted offense" means any offense submitted by the court to the jury, whether it be one which was expressly charged in a count of the indictment or a lesser included offense thereof submitted pursuant to section 300.50." Dec 11, 09 6:16 PM

As I understand the article, the only indication that the jurors have reached agreement on the top count to acquit is from the representation of one juror who the defense would like to have dismissed for misconduct.

That one juror's representation may be accurate or inaccurate. The jury may have tentatively reached agreement on Murder 2nd, and are proceeding down the charges. So there may or may not be a final verdict on this count.

At this late point in the proceedings I think it would be prudent to see if there is a verdict on that count. There is always the possibility that this jury falls apart, someone doesn't show up, or gets ill, and the partial verdict hasn't been recorded.

I can imagine the double jeopardy motions that would be made over the refusal to see whether there was such a verdict within the jury room. That could be replete with hearings. A fine mess.

At the same time, over the years Judge Hinrichs has proven to be a fine jurist and his decision to decline to ask for a verdict is certainly within bounds.

It has only been a juror who defense has argued is a defective juror who has reported there has been a decision on the Murd. 2 charge. it could be considered interfering with the ongoing deliberations to ask for a verdict when the jury has not declared it has a verdict.



" Dec 11, 09 7:25 PM

That is correct." Dec 11, 09 9:18 PM

This is why we have Sandoval and Ventimiglia hearings prior to trial.

In a Sandoval hearing the prosecution offers any prior bad acts or misconduct that she would like to use to impeach the defendant's credibility in the event he should choose to testify at trial. It is at such a hearing that the accuracy of the alleged acts could be challenged and the parties would argue whether such bad acts, if committed, had any bearing on the defendant's credibility.

In a Ventimiglia hearing the prosecution can offer evidence of prior bad acts, crimes, etc. that she contends help to prove the present offense. If successful, the prosecutor could introduce that evidence on her direct case.

That, apparently has not happened in this case. I don't think there has been any reservation of resources, such that if those things had bearing on this case, they would be in the case. This is even more so when the prosecutor has been aware of the alleged incident for more than a year prior to trial.

The reason for this process is evident from the posts on this page. " Dec 12, 09 11:23 AM

The following is from the rules of professional conduct that applies to both prosecutors [Ms. Merrifiedl] and defense counsel Ms. Kedia. The goal is to try the case in the courtroom where accusations can be met and fairly challenged. Not in the press which does not have the same advantages.

RULE 3.6:
Trial Publicity
(a) A lawyer who is participating in or has participated
in a criminal or civil matter shall not make an extrajudicial
statement that the lawyer knows or reasonably
should know will be disseminated by
means of public communication and will have a
substantial likelihood of materially prejudicing an
adjudicative proceeding in the matter.

(b) A statement ordinarily is likely to prejudice materially
an adjudicative proceeding when it refers to
a civil matter triable to a jury, a criminal matter or
any other proceeding that could result in incarceration,
and the statement relates to:

(1) the character, credibility, reputation or criminal
record of a party, suspect in a criminal investigation
or witness, or the identity of a witness
or the expected testimony of a party or witness;

(2) in a criminal matter that could result in incarceration,
the possibility of a plea of guilty to the
offense or the existence or contents of any confession,
admission or statement given by a defendant
or suspect, or that person’s refusal or
failure to make a statement;
(3) the performance or results of any examination
or test, or the refusal or failure of a person to
submit to an examination or test, or the identity
or nature of physical evidence expected to
be presented;

(4) any opinion as to the guilt or innocence of a
defendant or suspect in a criminal matter that
could result in incarceration;

(5) information the lawyer knows or reasonably
should know is likely to be inadmissible as evidence
in a trial and would, if disclosed, create a
substantial risk of prejudicing an impartial trial;
or

(6) the fact that a defendant has been charged with
a crime, unless there is included therein a statement
explaining that the charge is merely an accusation
and that the defendant is presumed
innocent until and unless proven guilty.

In reading your post, it appears that this rule of professional conduct may not have been followed in this case." Dec 12, 09 11:38 AM

Its called shooting the messenger." Dec 12, 09 10:10 PM

There was only a 20 minute gap between the e-mails that were sent. That is an extraordinarily fast recovery. The error on these facts was entirely understandable:

A note was sent and it indicated in substance there had been a verdict of not guilty on the top count. This, however, came from a juror other than the foreman. That is unusual, and could easily give rise to a misunderstanding.

Counsel for the Defendant also asked to have the partial verdict recorded. Appropriate response by defense counsel to make sure an acquittal is recorded, and that juror's note may still reflect the true state of deliberations that has yet to be officially recorded.

The only error was that a reported verdict has not been officially recorded.

The coverage has been terrific. You can not expect the Press to hire attorneys as reporters, and the reporters cover so many stories that this would not necessarily help. They cover municipal governance, school district meetings, criminal proceedings, as well as Easter egg hunts. They do their best.

Until you are ready to pay the hourly legal rate for every story reported, you have to be prepared for some slack in their system from time to time.

If you want to live in ancient times and shoot the messenger, go ahead, and while your at it turn off your internet access they didn't have that in ancient times." Dec 13, 09 10:01 AM

Suspended Westhampton Beach Village Police officers return to work

If it isn't time to abolish the PD, then it is time for a thorough examination of how business is conducted.

What is the actual crime rate in this community?

Are all reported crimes investigated?

Are all crimes charged at the appropriate level for the criminal acts perpetrated?

When was the last time an officer from WHB PD testified before the grand jury on a felony case that had been investigated and solved?

This is an inquiry that would require a great deal of time. Is it worth it to do the work that is clearly required to reform the PD?

If the PD wants to be obstructionist to such a process they are guaranteeing the dissolution of this department. About 3 Million dollars (when benefits are considered) annually is a lot of tax dollars.

How much would it cost contract with the Town? The service can't be any worse.

I like the theory of a local PD, if the officers liked it too then they would not put up with conduct that calls for the abolishment of the department." Dec 13, 09 12:28 PM

Southampton Town Board adopts dark skies legislation

Light pollution affects everyone. This is a good start.

We can't really see the night sky, its as if we all have cataracts and don't seem to realize it. Travel in a plane at night and you can seen the milky cloud of light across the entire northeast.

It is time to stop being afraid of the dark." Dec 13, 09 1:07 PM

Deliberations in Oddone trial resume Monday with testimony reread to jury

The prosecutrix did not make any application to bring in this alleged past so there must be something lacking in the alleged proof.

Prior bad acts, if proven, can be introduced to prove intent or absence of mistake. Maybe the proof you think it there, isn't." Dec 13, 09 11:26 PM

I can't say I have come across this problem before. However, in view of the note given that indicates that the jury has already reached a partial verdict, it would be difficult to declare a mistrial as to the entire case without first inquiring into whether there is a partial verdict as to any one or more of the offenses submitted.

If the judge, over the objection of counsel, refused to make such an inquiry, then defense counsel would have a strong argument against re-trial. Generally the rule is that a judge can not declare a mistrial unless there is a manifest necessity, and this argument would be extended to each offense individually.

In fact, if the judge, over objection of defense counsel, failed to make inquiry as to each offense, there is an argument to be made that, in the absence of any verdict, the only count we could be assured there was not an acquittal on is the lowest count.

I can't say I have found case law on point, but the argument is logical based upon the theory that a defendant, if possible, is entitled to a verdict from the jury he selected." Dec 13, 09 11:38 PM

It is neither the prosecutor nor the defense attorney who have made this case difficult. It is the nature of the case, a fight in a bar.

From one perspective:

Mr. Oddone is a man who choked Mr. Reister for a period from 2 to 3 minutes. In the process Mr. Oddone broke small bones in Mr. Reister's neck and Mr. Oddone compressed Mr. Reister's carrotid artery until Mr. Reister became unconscious, and Mr. Oddone continued to choke Mr. Reister for a sufficient period of time to cause permanent damage that lead to Mr. Reister's ultimate death.

There have been reports that Mr. Oddone has been involved in a previous violent confrontation in a bar, such that it is fair to assume that Mr. Oddone does not shrink from the use of physical force.


From another perspective:

Mr. Oddone was at a bar dancing, drinking and enjoying himself in the same manner as other patrons of the bar. Mr. Reister, a bouncer at the bar, attempted to enforce a rule and told Mr. Oddone to get down from the table on which he was dancing. Others were dancing on table tops too, but Mr. Oddone was arbitrarily singled out and he refused to stop. Mr. Reister then physically pulled Mr. Oddone from the table top to the floor and a fight between the two ensued.

Mr. Reister substantially outweighed Mr. Oddone, and but for the choke hold Mr. Oddone was able to maintain, Mr. Reister could have mopped the floor with Mr. Oddone. Under these circumstances Mr. Oddone was justified in defending himself from Mr. Reister, justified in putting Mr. Reister in choke hold to protect himself from the larger man.

The proof presented does not show that there was any point in time when BOTH: 1. Mr. Reister no longer posed a threat to Mr. Oddone, AND 2. That the actions of Mr. Oddone, during that period after the threat of violence against him had been neutralized, caused the death of Mr. Reister who had a pre-existing heart condition.

Stated another way, the injury inflicted upon Mr. Reister may have been caused during a time period when his actions were justified, and if he did continue to hold him, it was after that the damage had already been done.

It is also understood that Mr. Reister's chosen vocation is prison guard and he moonlights as a bouncer, such that it is fair to assume that Mr. Reister does not shrink from the use of physical force.


In order to impose CRIMINAL liability on Mr. Oddone the burden of proof beyond a reasonable doubt rests squarely on the prosecution to prove the first perspective and to disprove the second perspective. The defense has no burden of proof.


The difficulty in proving what happened in a bar when alcohol is flowing, music is blaring, and the hour is late is manifest. There are only a few things that are certain, Mr. Reister is dead, small bones in his neck were broken, Mr. Reister had a pre-existing heart condition, and Mr. Reister outweighed Mr. Oddone substantially. These facts alone are inadequate and the jury is forced to resort to witnesses with an ability to perceive and remember that was, at best, compromised.

Prosecuting combatants in a bar fight is very difficult, rarely done, and is rarely successful." Dec 14, 09 11:48 AM

You are making the point. This case is founded upon the strength of the perceptions of people in a bar who have been there for a while.

That testimony may in the end be sufficient, but it is not an easy task for a jury to say that it constitutes proof beyond a reasonable doubt.

As to taking sides, my only hope is that justice, as best it can be served within human limitations, is served. That does not appear to be a simple issue in this case.

" Dec 14, 09 12:10 PM

Oddone guilty of first-degree manslaughter, jury announces Monday

Now Judge Hinrichs will have the difficult job of deciding the proper sentence to impose. Many who thought the Defendant was guilty of Murder 2 would want the max, those who thought it was a Man 2 a sentence on the low end.

Hopefully, the proper respect will be accorded Judge Hinrichs when he undertakes such a difficult job.
" Dec 14, 09 5:53 PM

Time he has already been incarcerated is credited against whatever sentence Judge Hinrichs imposes in this case." Dec 14, 09 6:04 PM

Suspended Westhampton Beach Village Police officers return to work

Maybe, instead of contracting with Southampton Town PD, WHB contracts with Quogue PD. It is a small department and the worst anyone says about them is that they aggressively enforce the law, particularly DWI laws. That is okay with me.

Unless, WHB PD can clean up its act in a hurry. Very doubtful...
" Dec 15, 09 7:57 AM

Shinnecock Indian Nation wins preliminary federal recognition

This past September the Mashantucket Pequot Tribal Nation, owners Foxwoods, was hoping to restructure $2.3 billion in loans rather than default and trigger bankruptcy.

Who really benefits from casino gambling ?

The forever promise of something for nothing, when in fact what is being offered is nothing for something." Dec 16, 09 8:42 AM

If things were on the level, NY State would run into an equal protection problem, a reverse discrimination problem if it only lets the Indians gamble.

The federal statute that regulates Indian gaming does not require states to permit it if it is not otherwise permitted in the state. See Indian Gaming Regulatory Act (IGRA).

If the monopoly on gaming is gone, boy does that reduce the value of such a casino. But, then the question is whether things are on the level." Dec 16, 09 8:50 AM

Never mind that pink elephant in the room. Yes, congratulations to the Shinnecock Indians who, I am pretty sure, knew all along they were descended from native americans." Dec 16, 09 9:22 AM

Oddone guilty of first-degree manslaughter, jury announces Monday

Many are posting that Juror 2, or any juror who were to read media accounts or otherwise visit blog sites, or discuss the case, would be committing juror misconduct. Yes, judges do instruct jurors not to do those things, but we really have to ask why.

We expect jurors to render important, life altering decisions, but we treat them as little children.

Can a person, a juror, who understands that the only information that is reliable is that which passes through the courtroom doors and is subject to fair and open examination really be impairing the process if they read about or discuss the case prior to rendering a verdict?

If a person does not understand that newspapers can get it wrong, or that blog sites can contain malicious gossip or speculation, then they are unqualified to be a juror in the first instance. If we grant jurors the adult responsibility to render verdicts, we should be able to count upon them to act like adults. Even if one or two childish jurors should make it on a panel, then the balance of the members of the jury should be able to keep them in line if they stray.

We need to eliminate judicial paternalism. We would not have to get into silly discussions of whether people read a paper, saw a news report, or discussed the case with a spouse. Frankly, I would hope that all of those things would actually occur, but also that jurors as the adults we expect them to be would render their verdict based upon the evidence that was presented, or not presented.

Is it really reasonable to tell a juror that they undertake a momentous decision. A decision that, once it is made, can never be changed and will impact people for the rest of their lives, and tell them you can not talk about it with your spouse, priest, or other confidant?

It is always helpful to re-examine our rules, determine whether they remain important and should be preserved, or were perhaps never important and should be eliminated.

I hope that everyone involved in the case, and everyone interested in this case, moves forward to meet the challenges that tomorrow will bring with greater strength and more insight than when this all began. Myself included." Dec 16, 09 9:44 AM

When we expect jurors to act like adults, evaluate evidence like adults, and render verdicts like adults; there are very few things you will need to tell them to disregard.

When we start treating jurors like children and that is all we expect, that is all we will get. AND, you run the risk that when a case is weak jurors will speculate that something must have been suppressed or excluded, and will act as the children you assume them to be and speculate that something has been withheld. This only hurts the innocent.

Give jurors everything, they are adults. On this page there has been gossip that Mr. Oddone was present in a bar where bear bottles were broken and the police were called. No one has said he did anything, he was just present. Do you think introduction of that evidence would have meant anything ?

The judicial system suffers when prosecutors or defense attorneys can tell a jury afterwards that they had evidence that they wished they could have introduced. It is a statement that the process is unfair. The result is disdain for the process. Jurors should be expected to act as adults. We all deserve it." Dec 16, 09 1:01 PM

One of your arguments is "because we have always done it that way." That does not hold water with me.

What does driving with a suspended license, or transferring to another college without first telling a probation officer have to do with whether Mr. Oddone committed murder ? Nothing.

When you say Mr. Oddone was arrested for destruction of property and you say that someone made an accusation that he struck another person with a beer bottle in the head at a time when he was working as a bouncer. Are you saying that reading about unproven accusations would have swayed my judgment in this case ? No. Am I superior to a juror? No.

Are you saying that the DA would call witnesses to those events as relevant to the charges in this indictment? There would have to be more specific information to determine if I would consider it in the context of this case. Again, I don't claim to be superior to jurors.

We do not excuse judges from bench trials when they know about prior convictions of an accused. We expect him to weigh the present case upon the facts of the present case. I do not consider judges superior to jurors. They are versed in the law, but they are people with the same everyday experiences as you and I.

We can not hermetically seal jurors from the influences of the outside world, it is silly to try. Instead, explain the weaknesses of such things in jury instructions and expect them to act like adults.

If evidence was introduced that Oddone had struck someone in the head with a beer bottle previously, that would be relevant, but not determinative.

We also let people introduce evidence of good character, and good character can constitute reasonable doubt.

Jurors are adults, we need to treat them that way." Dec 16, 09 2:50 PM

Notice Sam below started his remark, if those allegations are true...

I credit jurors no more and no less than lawyers and judges. If they are told the accusations about a beer bottle to the head could come in, and the DA didn't produce it, then the jury could reasonably accept that there was no credible evidence to be offered even as assessed by a DA that often presents evidence that strains credulity.

If we trust jurors with a man's life, we must trust them with all of the information and stop pretending they can't handle it as well as lawyers and judges." Dec 16, 09 4:07 PM

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