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355 Comments by Publius

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Oddone jury will consider lesser charges

Not to put any cart before any horse, but rather to have an understanding how the jurors choices have been restricted, and the choice of possible sentences reduced:

Sentences:

For Murder in the Second Degree, as charged in the indictment:
An indeterminate Sentence of imprisonment is mandatory. Penal Law 60.05(2). The maximum term must be life, and the minimum term may be not less than 15 years nor more than 25 years. Penal Law 70.00. Thus, the least sentence is 15 years to life, and the greatest sentence is 25 years to life.

An indeterminate sentence has two components the minimum term and the maximum term. For example 20 to life. On this example the person would not come before the parole board until 20 years have been served in jail, and the parole board could parole him, or reject him each year thereafter for the rest of his life.


For Manslaughter in the First Degree:
A Determinate Sentence of imprisonment is mandatory. Penal Law 60.05(3). The term must be in whole or half years between 5 and 25 years. Penal Law 70.02(3)(a). The Determinate Sentence shall include, as a part thereof, an additional period of Post-Release Supervision of between 2 and one-half and 5 years. Penal Law 70.00(6) and 70.45(2).

A Determinate Sentence a one number sentence, for example a convicted defendant could be sentenced to 21 years in state prison.


For Manslaughter in the Second Degree:
An indeterminate Sentence of imprisonment having a maximum term of not less than 3 years and not more than 15 years, and a minimum term of not less than 1 year and not more than one-third the maximum term. Penal Law 60.01(3)(a) and 70.00. Thus, the least such sentence is 1 to 3 years, and the greatest such sentence is 5 to 15 years. -OR-

Probation for 5 years if (i) institutional confinement for the term authorized by law is or may not be necessary for the protection of the public, (ii) the defendant is in need of guidance, training or other assistance which, in his case, can be administered through Probation supervision, and (iii) such disposition is not inconsistent with the ends of justice. Penal Law 60.01(2)(a)(i) and 65.00.


For CRIMINALLY NEGLIGENT HOMICIDE:
An indeterminate Sentence of imprisonment having a maximum term of not less than 3 years and not more than 4 years, and a minimum term of not less than 1 year and not more than one-third of the maximum term. Penal Law 70.00. Thus, the least such sentence is 1 to 3 years, and the greatest such sentence is 1 and one-third to 4 years. -OR-

A Definite Sentence of imprisonment of up to 1 year, if the court, having regard to the nature and circumstances of the crime and to the history and character of the defendant, is of the opinion that a sentence of imprisonment is necessary but that it would be unduly harsh to impose an indeterminate or determinate sentence. Penal Law 60.01(3)(a) and 70.00(4).

Probation for 5 years if (i) institutional confinement for the term authorized by law is or may not be necessary for the protection of the public, (ii) the defendant is in need of guidance, training or other assistance which, in his case, can be administered through Probation supervision, and (iii) such disposition is not inconsistent with the ends of justice. Penal Law 60.01(2)(a)(i) and 65.00. " Dec 1, 09 2:27 PM

Manslaughter in the Second Degree is reckless murder. Intoxication is a defense to the intentional murder, and would take it down to reckless murder.

However, reckless murder is not before the jury for consideration. Intoxication is not a defense to reckless conduct. Both the DA and the Defense have refused this charge, and the judge has let them make their own bed, so to speak.

"A person acts Reckless with respect to a result or to a circumstance described by a statute defining an offense when he is aware of and consciously disregards a substantial and unjustifiable risk that such result will occur or that such circumstance exists. The risk must be of such nature and degree that disregard thereof constitutes a gross deviation from the standard of conduct that a reasonable person would observe in the situation.

A person who creates such a risk but is unaware thereof solely by reason of voluntary intoxication also acts recklessly with respect thereto."" Dec 1, 09 2:56 PM

The law on lesser included charges:

§ 300.50. Court's charge; submission of lesser included offenses

1. In submitting a count of an indictment to the jury, the court in its discretion may, in addition to submitting the greatest offense which it is required to submit, submit in the alternative any lesser included offense if there is a reasonable view of the evidence which would support a finding that the defendant committed such lesser offense but did not commit the greater. If there is no reasonable view of the evidence which would support such a finding, the court may not submit such lesser offense. Any error respecting such submission, however, is waived by the defendant unless he objects thereto before the jury retires to deliberate.

2. If the court is authorized by subdivision one to submit a lesser included offense and is requested by either party to do so, it must do so. In the absence of such a request, the court's failure to submit such offense does not constitute error.

3. The principles prescribed in subdivisions one and two apply equally where the lesser included offense is specifically charged in another count of the indictment.

4. Whenever the court submits two or more offenses in the alternative pursuant to this section, it must instruct the jury that it may render a verdict of guilty with respect to any one of such offenses, depending upon its findings of fact, but that it may not render a verdict of guilty with respect to more than one. A verdict of guilty of any such offense is not deemed an acquittal of any lesser offense submitted, but is deemed an acquittal of every greater offense submitted." Dec 1, 09 3:11 PM

When you look at the choices given to the jury it is really a choice of:

murder in the second degree, criminally negligent homicide, or an outright acquittal.

MANSLAUGHTER IN THE FIRST DEGREE:
The other charge given to the jury, Manslaughter in the First Degree, requires that the jury find that the defendant intended to cause serious physical injury to Mr. Reister. The very nature of choking someone is to either kill them, by strangulation, or incapacitate them for the time being.

Intending to temporarily incapacitate a person is NOT intending to cause serious physical injury, and therefore a Manslaughter in the First Degree is not supported by the evidence.

THE OTHER CHOICES:
The choice of mental states given to this jury then is one of either intending to cause the death of Mr. Reister (Murder in the Second Degree), OR

that when Mr. Oddone choked Mr. Reister he failed to perceive a substantial and unjustifiable risk that he would cause the death of Mr. Reister (Criminally Negligent Homicide) OR

NOT GUILTY BY REASON OF SELF DEFENSE

Self defense does not really apply to the Murder in the Second Degree charge, if Mr. Oddone intended to use deadly force against Mr. Reister, it wasn't justified because he was NOT confronted with deadly physical force.

Self defense DOES apply to the criminally negligent homicide charge if the jury finds it reasonable that choking someone may under ordinary circumstances be less than deadly force, and that it was only by virtue of Mr. Reister's pre-existing heart condition, that non-deadly force happened to contribute to Mr. Reister's death. In this case, the jury will have to consider whether there is a reasonable doubt that Mr. Oddone may simply have met the non-deadly force of Mr. Reister with his own non-deadly force.

It is the burden of the prosecution to disprove self defense beyond a reasonable doubt. It is NOT an affirmative defense. Stated conversely, if the defense raises a reasonable doubt that Mr. Oddone may have been acting in self defense, then the jury must acquit the Defendant.

Was Mr. Reister's Hyoid bone fractured? The fracture of the Hyoid bone in the neck, which is a soft bone, is indicative the force used by Mr. Oddone. See http://en.wikipedia.org/wiki/Hyoid_bone



This is a difficult case, my guess is that there is no way there is an Intentional Murder conviction or Manslaughter in the First Degree conviction, and there may well a hung jury or a guilty verdict on the criminally negligent homicide count. The fight will be whether the judge will permit the jury to render a partial verdict as the case progresses.


§ 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 1, 09 6:58 PM

I agree. The prosecution could have had Man. 2, but because it is their burden of proof the case will fall on the crim. neg side of the fence, if this jury that has been marked by self accusation can even reach a verdict at all" Dec 1, 09 8:54 PM

Respectfully, you are mistaken about the partial verdict statute. " Dec 1, 09 8:55 PM

I did not suggest he could be found guilty of all three options.

The process is that the jury first considers Murd. 2, then Man 1, then Crim Neg. They may reach a not guilty verdict on the Murd. 2 (this is ordinarily not reported until deliberations on the lesser offenses are concluded)

If the jury gets hung on Man 1 or finds him not guilty of Man 1 but gets hung on Crim Neg., the Court may take a partial verdict of not guilty on the Murd. 2 and Man 1 and then direct continued deliberations on Crim Neg, or declare a mistrial.

By taking a partial verdict those counts would not be re-tried because there was an acquittal." Dec 1, 09 9:05 PM

The DA obtained an indictment that had two inconsistent counts. The depraved murder statute can not be charged in this case and never should have been.

When the DA got a depraved mind murder count from the grand jury it was based on an illegal application of the law and the grand jury, that is instructed by the prosecutor without a judge, did what grand juries do. It indicted. By the way, the standard of proof in the grand jury is reasonable cause to believe, not proof beyond a reasonable doubt. Enormous difference.

The DA was forced to dismiss the depraved mind count. You want to know what would happen if she had not dismissed that count? A conviction on depraved mind murder as some form of compromise by the jury off of the Intentional Murder count would have been thrown out on appeal by the courts and Mr. Oddone would have walked with no conviction at all.

It happened on a murder case from Shelter Island just a few years ago.

Unfortunately, it does sound like a flea market and playing for an unfair advantage. The DA chose not to have a Manslaughter 2 charge given to the jury. If that is troubling to you, ask the DA himself why ? He is after all your elected official." Dec 1, 09 9:25 PM

http://abcnews.go.com/Primetime/story?id=2853532&page=1

Please read the article above about the case People v. Payne. In the past juries were instructed to first consider intentional murder and then if they had found the defendant not guilty proceed to depraved mind murder. They were never told that it was the same level crime. It often resulted in a compromise verdict that wasn't even a compromise, but a fraud on the jury. " Dec 1, 09 9:49 PM

From our New York State's highest court in 2005, People v. Suarez, 6 NY 3d 202

"Historically, depraved indifference murder had no application at all to one-on-one killings (see generally Bernard E. Gegan, A Case of Depraved Mind Murder, 49 St John's L Rev 417 [1974]). Accordingly, in Darry v People (10 N.Y. 120, Seld. Notes 246, 2 Park. Cr. 606 [1854]), this Court held that a conviction for "depraved mind" murder required conduct that endangered many people indiscriminately, reflecting cases in which the defendant did not wish to kill or injure any particular individual, but had no care for whether the life of any particular person was lost or not.

Since the enactment of the revised Penal Law, however, we have recognized that in rare circumstances, depraved indifference murder can also be found in certain unintentionalkillings involving only a single individual. These limited cases are those in which--although the intent to kill is absent--the defendant's utter depravity in causing the victim's death warrants punishment in excess of that available for manslaughter. Such cases will arise only when the acts of the defendant are "marked by uncommon brutality--coupled not with an intent to kill . . . but with depraved indifference to the victim's plight"

You are arguing that this is one of those rare cases in which the surrounding circumstances reflect an indifference to human life which permits a reckless murder to be elevated from what would otherwise be manslaughter in the second degree to a legal theory of Murder in the Second Degree.

It is evident that upon more careful consideration, the DA knew she could not do that in this case. She could not keep this count in the indictment. The old practice of indicting for both intentional and depraved indifference murder dies hard, but it is coming to an end.

If you were correct and this could properly be prosecuted as a depraved indifference murder that has no intent to kill, why would the DA abandon a lighter burden of proof on a different theory of murder.

It simply was not there on the facts of this case. This case was a Manslaughter 2nd from the beginning. That carries a maximum sentence of 15 years, not an insignificant time to spend in prison. Instead, the flea market approach prevails." Dec 1, 09 10:40 PM

Actually, any verdict other than intentional murder is a determination that the death was accidental. Some accidents are criminal in nature." Dec 1, 09 10:42 PM

Jame Catterson died, R.I.P. The current DA is Thomas Spota, he is making his own reputation." Dec 1, 09 11:09 PM

The order of consideration is Murder 2; Man. 1 and then Crim Neg. Homicide. If at any point the agree on a conviction, then they don't go on to the next offense. At each step if they agree on acquittal, then they go on to the next lesser offense, in the order above.

Sometimes a jury may reach a verdict of not guilty on a greater offense, but get stuck, in this case on either Man 1 or Crim Neg. That is when the question of a partial verdict arises.
" Dec 1, 09 11:36 PM

wondering & maryb123 have both demonstrated why jury selection is very important. It is essential that individuals with biases be excused from deliberations.

both maryb123 & wondering have made accusations that Mr. Oddone did something at some other time. If such accusations are to be tested with proof, have a trial on those accusations.

However, you can't bring untested, unchallenged, accusations about something else, from somewhere else, to prove the accusations in this case.

This case stands or falls on the evidence presented. In this case it is undisputed that Mr. Oddone choked Mr. Reister, what remains disputed is:

whether Mr. Oddone was meeting Mr. Reister's physical force with his own physical force (self defense which the DA must disprove); or as the DA contends,

whether Mr. Oddone intended to kill Mr. Reister and intentionally used deadly force to choke Mr. Reister to death.

One thing is certain and undisputed, the Reister family has suffered a tragic loss and no verdict in this case can change that." Dec 2, 09 8:41 AM

Jury now deliberating in Oddone trial

New York's Draw Shop Law may provide that Mr. Oddone is not the only person held to account in this case. A collateral issue to the case being reported upon, but nonetheless relevant to concerns over the family's concerns over the loss of a breadwinner. ("Exemplary" damages is another word for punitive")

§ 11-101. Compensation for injury caused by the illegal sale of intoxicating liquor

1. Any person who shall be injured in person, property, means of support, or otherwise by any intoxicated person, or by reason of the intoxication of any person, whether resulting in his death or not, shall have a right of action against any person who shall, by unlawful selling to or unlawfully assisting in procuring liquor for such intoxicated person, have caused or contributed to such intoxication; and in any such action such person shall have a right to recover actual and exemplary damages.

2. In case of the death of either party, the action or right of action given by this section shall survive to or against his or her executor or administrator, and the amount so recovered by either a husband, wife or child shall be his or her sole and separate property.

3. Such action may be brought in any court of competent jurisdiction.

4. In any case where parents shall be entitled to such damages, either the father or mother may sue alone therefor, but recovery by one of such parties shall be a bar to suit brought by the other." Dec 2, 09 8:00 PM

The law is important. It is the law you have turned to punish the guilty. It is the law the accused turns to for protection from the mob.

This is not to say Mr. Oddone is guilty, or that those who believe he is guilty are a mob.

The law is the cornerstone of civilized society and serves to guide us when emotions run high.

I shared the Dram Shop Act, and yes there was a typing error it is not Draw Shop, so that those who are concerned for the family will know that the bar will no doubt be sued, and that action will probably be settled for some figure rather than litigate whether Mr. Oddone was intoxicated when he was in the bar in the early morning hours and dancing on a table.


You are right that intoxication is not a complete defense, but it is relevant to the Murder 2nd charge and the Man. 1 charge. Intoxication can negate the element of intent required in each of those charges before the jury. If a jury were to conclude that an intoxicated defendant could not form the intent to kill, or the intent to cause serious physical injury, then it would be required to return a verdict of not guilty of those two counts. Intoxication is not a defense to Manslaughter in the Second Degree.


See People v. Perry, 61 NY2d 849

"The order of the Appellate Division should be reversed, and a new trial ordered. The trial court's refusal to charge on intoxication denied defendant his right to have the jury properly consider the effect intoxication could have on the element of intent (Penal Law, § 15.25). A charge on intoxication should be given if there is sufficient evidence of intoxication in the record for a reasonable person to entertain a doubt as to the element of intent on that basis ( People v Orr, 43 AD2d 836, affd 35 NY2d 829; see, also, People v Lee, 35 NY2d 826). On the present record, although defendant testified that he was aware of his actions, there is undisputed evidence of defendant's intoxication at the time of the commission of the crime. Therefore, the trial court's failure to charge on intoxication constitutes reversible error."


I did NOT offer the Dram Shop Act in any way to have bearing upon the criminal action. It does not. It was presented only for the consideration of how it relates to the Reister family's future concerns. " Dec 2, 09 10:44 PM

If what you say is true, it looks like the only thing that stands between you and Judge Hinrichs is a subpoena on the Southampton Press, and perhaps another subpoena on some ISP related to your e-mail.

Both DA and the Defense have time on their hands at the moment and you can bet they are going to assess whether it is in their interests to advance this inquiry now, or after an adverse verdict. The DA would probably go now, hard to undo a verdict from that side of the case; Defense may hold it as insurance to attack any verdict of guilt.

The following link relates to privacy for bloggers:

http://writ.news.findlaw.com/hilden/20011129.html
" Dec 3, 09 8:18 AM

You can also probably expect an e-mail from the Southampton Press informing you that you should retain counsel to defend your privacy if you intend to do that.

It would be reasonable for the Press to afford you an opportunity to move to quash such a subpoena at your expense, but not at theirs." Dec 3, 09 8:33 AM

They wouldn't need to. Once you put a person in jail they are indigent and the taxpayers pay for the cost of the reproduction of the transcripts as well the costs of appellate counsel." Dec 3, 09 2:26 PM

Suspended Westhampton Beach Village Police officers return to work

The Village should consider abolishing the PD, at least it would cost less for absence of services. Of course excessed officers could work part time jobs doing security for the estate owners..

Maybe even John Roland will want to hire someone for that kind of work, if he doesn't already have someone on the job.

NY Village Law:

§ 8-800. Police departments

The board of trustees of a village may, by resolution, establish a police department in such village and appoint a chief of police and such personnel as may be needed, and fix their compensation

* * * * *

The board of trustees may abolish a police department established pursuant to this section by local law, subject to permissive referendum, and the department shall be deemed abolished as presented in such proposition.

* * * * *

The board of trustees of a village, upon establishing or abolishing a police department, shall notify the commissioner of the division of criminal justice services of such action within thirty days thereafter." Dec 3, 09 2:33 PM

Can't help that you are so disagreeable Mr. Wheeler.

But, do look at my post about the dissolution of the PD and my reference at that time to Greenport PD on June 7th. Maybe you remember that, maybe you don't. I guess you agreed with me then, but just didn't know it.

http://www.27east.com/story_detail.cfm?id=215194

For this Village to referee the infighting in the PD is a waste. The Chief carries no moral authority with Village residents, and that eliminates his ability to repair a department that has been dysfunctional for decades." Dec 3, 09 3:29 PM

Defense seeks mistrial; Judge rejects motion

That is like reading tea leaves. It is easy for me and anyone else here to pontificate about what the verdict should be, but we don't carry the responsibility of that verdict for the rest of our lives.

From what I have read here, after seven weeks of testimony, the jury is doing what it is supposed to do. Ask for charges it requires, ask for that evidence it thinks is important, and work their way through it.

This is not going to happen fast. It is a big deal to authorize the state to incarcerate a man for a long time, and it is just as big a deal to acquit him when a person has died.

I only offer that people interested in this case have patience. It will take time.

" Dec 3, 09 6:54 PM

The jury was instructed on self defense as it relates to both Murd 2 and Man 1.

It was MY own analysis that if the jury concluded that the defendant intended to kill Mr. Reister, the use of deadly force could not be justified because he had not been threatened with deadly force. You can't use deadly force unless threatened with deadly force.

With respect to Man 1 MY analysis was that when one person chokes another it is either with the intent to kill (guilty of Murd. 2) or to incapacitate, not cause serious physical injury as required to be guilty of Man. 1.

That brings the case next to Man. 2 and if not that then Crim. Neg Homicide.

Self defense applies to each of the four counts, but there are two types of force that must be considered deadly force, and ordinary force. As I understand it there was no justification for Mr. Oddone to use deadly force so if he intended to kill Mr. Reister, then justification will not result in an acquittal on that charge.

With the lower charges the jury could conclude that the force used was only physical force, not deadly force, and that it was this physical force that contributed to the death of Mr. Reister. That may or may not be justified as the jury assesses whether that force was to meet the force upon him.

It is a complicated process, and I have offered only a legal analysis, the jury has to make factual determinations that go with the law given to them.

I would not guess what is going on. I can't begin to think what the interactions of 12 unrelated people will produce in the way of jury requests." Dec 3, 09 7:54 PM

Sometimes a piece of evidence has both good and bad in it, such that neither party wants to put it into evidence.

You can bet both attorneys made an assessment, and made a conscious decision not to offer it into evidence. I would be surprised it it was an oversight. " Dec 3, 09 8:09 PM

The introduction into evidence of a document or a picture is ordinarily a two step process. First the item is marked for identification. Then questions are asked about that item in order to provide the foundation for admissibility and it can be referred to by counsel by its Identification number and the stenographer can record that, and the item is part of the record.

The second step after it has been marked for identification is to ask the questions and get the necessary testimony that renders it admissible. Once that happens it is offered into evidence and a ruling is made upon its admissibility. If admissible, then the ID marking number is changed and it is marked with that number as now in evidence.

Photographs are simple. Its marked for identification and the witness is asked whether the picture fairly and accurately represents a particularly thing, if the witness says it does, then the foundation has been provided and it can be offered and marked into evidence.

In order for a scientific article, book, or journal to be admitted into evidence there must be a witness who testifies that it is authoritative. For example, it would be difficult for a witness to say Grey's Anatomy is not authoritative.

However, in the world of publish or perish, not all things will be recognized as authoritative and without it being recognized as authoritative, it remains as hearsay, is inadmissible, and won't get passed being marked for identification.

If a witness being cross examined refuses to admit that anything is authoritative, that will weigh upon his/her credibility. If there is an article from some obscure journal, I don't think it would affect his/her credibility at all." Dec 4, 09 12:16 PM

Jury deliberations continue in Oddone murder trial

You seem to suggest that there is something in the Medical Examiner's autopsy report that you would have liked to have in evidence before the jury.

If there was anything in that report that was inconsistent with the ME's testimony, then it was admissible unless he admitted to those facts on cross examination.

Frankly, I have never seen a medical examiner testify in a manner that was inconsistent with his own report, but maybe something new happened here.

Are you saying that the ME testified in a manner that was inconsistent with his report, that the report was offered in evidence, and the judge refused to admit it into evidence?

The rules of evidence are designed to permit both sides to fairly examine witnesses and present evidence. Are you saying these rules were not followed?

To be certain there are rules that could be changed to improve the fact finding process, but is there something you have identified here that is so far off the beam that this is an unfair trial?" Dec 4, 09 9:29 PM

Bishop asks Paterson for disaster area designation

That is an interesting fact you bring up concerning the subsidy by oceanfront property owners to riparian property owners in the FEMA premiums paid as compared to pay outs. U have a source on that, it could be interesting reading?

Not to digress too far, I find it similar to mandatory health insurance for young people who will pay premiums to subsidize hemorrhoid removal for aging baby boomers.

Robbing Peter to pay Paul, becoming the American Way." Dec 7, 09 8:25 AM

Read this:

STOP THE BEACH RENOURISHMENT, INC.,
Petitioner:
v.
FLORIDA DEPARTMENT OF ENVIRONMENTAL PROTECTION, ET AL.

oral argument before the US Supreme Court on Dec. 2, 2009

http://www.supremecourtus.gov/oral_arguments/argument_transcripts/08-1151.pdf

careful, it might make you go berserk." Dec 7, 09 8:31 AM

If the carriers wouldn't pay nuisance value for law suits, and would instead defend cases that could and should be defended, then it wouldn't matter.

Hold the line for a while and refuse to pay nuisance value and loser lawsuits would not get filed. Pay nuisance value and every lawsuit is a winner." Dec 7, 09 11:03 AM

Suspended Westhampton Beach Village Police officers return to work

I tend to agree with you. However, it is the threat that they could all be on the bread line which should be used to bring them all into line.

The Chief has been employed for nearly 10 years. Those first years were by a Board with whom he clearly had favor. The Chief did not exercise his authority at that time to clean up a long standing problem in the Department. His beef about the present board can not excuse the past 9+ years.

Also, when you are as well compensated as the Chief is, and you choose to file a notice of claim over comp. time, it does not reflect well on where the Chief places his priorities.

The department has not gotten the job done for years, the Chief never changed that, and this Board is stymied. There are a lot of changes that are required.

As I said, I tend to agree with you that trading in a little union that should be controllable, for a bigger one isn't helpful.

However, the admin costs for this Village when it could pay only for patrol by two or three sector cars (contract for more coverage if and when necessary) would be far more cost effective. (Greenport had a crime problem with Village PD and without, the dismantling of that department didn't change that.)

If the WHB PD can't demonstrate it is worth the additional cost it has to go. It is up to them. I would give them one year to clean it up, and if it was not markedly improved, there should be a public referendum on the issue as required by law for abolishment of the department." Dec 7, 09 11:52 AM

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

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