DANIEL S. ROCKOFF: DPAN YELT ROCKOFF SIFRT DEPUTY PUBLIC DEFENDER
ON PAFR OF MR. CLARK. VALERIA DOMINGUEZ: GOOD MORNING YOUR HONOR
STECH KNEE ATTORNEY GENERAL GLEER ON BEHALF OF THE STAIT. CHIEF
JUSTICE RABNER: WELCOME COUNSEL WE HAVE PLEASE BE SEATED WE EVER TODAY THE
CONTINUATION OF THE ARGUMENT PLEASE FOCUS YOUR PRESENTATIONS ONLY THE FIFTH
AMENDMENT ISSUE THAT THE ANGS #1K9DZ US TO FOCUS ON AND KOIRT HAS A MOTION TO
SDMROIFRJTS FWIEN TRIAL COUNSEL THE STATE'S SUPPLEMENTAL RESPONDENTS BRIEF THE
MOTION IS DOINLD. MR. ROCKOFF. DANIEL S. ROCKOFF: YOUR HONOR
S I WOULD JUST BEGIN BY REQUESTING 2 MINUTES IN REBUTTAL TIME IF THAT SHUBD
NECESSARY. CHIEF JUSTICE RABNER: THAT IS FINE.
DANIEL S. ROCKOFF: SO, IT VIOLATED CLASHGS' FIFTH AMENDMENT PRIVILEGE AND NEW
JERSEY COMMON LAW PRIVILEGE FOR THE TRIAL COURT TO ALLOW THE PROSECUTOR TO
PRESENT AS EF OF GUILT THAT THE DEFENDANT ASKED FOR A LAWYER WHEN AN TERLTHING
OFFICER ACCUSING HIM OF MOID PRESSED HIM TO EXCULPATE HIMSELF IN ORDER TO
PREVEN THE WRONGFUL CONVICTION OF AN INNOCENT MAN, THE ANGSS ORDER FOR A NEW TRIAL
MUST BE AFFIRMED. I WILL BE HIGHLIGHTING 4 POINTS TODAY. FIRST,
I WILL DRAES WHAT MIRANDA ROISED THAT FIFLT NEMENT EVEN VOEKTSS OF THE RIGHT TO
COUNSELORS ARE NOT ADMISSIBLE EF AT A CRIMINAL TRIAL DEFENDANTS LIKE CLARK
FACE A FENL WHEN FIFTH A MENL INL VOCATIONS ARE IMENT FROLY ADMITTED AT EVERY
ESPECIALLY THE DEFENDANT INVOKE THE FIFTH NTD FASZ OF AN ACCUSATION.
SECOND, I AM TRAES WHY THE HARM AT CLASHGS' TRIAL WAS SO E GRIEJ US AND
CAPABLE OF CAUSING AN UNJUST RESULT. IN SHORT, THE IMPROPERLY
ADMITTED EF WAS USED AGAINST CLARK AT EVERY TURN FROM START TO ANYONE I
SHALL. THE VIDEO EVIDENCE PRESENTED PIET PROSECUTOR WAS MORE THAN A SECONDS
HAND REPORT OF A BARE INL VOCATION TO CAUSE AN UNJUST RESULTS AULTD PROSECUTOR
HAD TO DO WAS PRESS PLAY. IT SHOWED CLARK INVOKING AT THE INTERROGATE OR
INSINUATED THAT DLASHG WAS A LIAR AND A MURDERER THAT IN KROEK CAN HITS RIGHTS
WASN'T WHAT THE TERTHS OR WOULD BE DOING IF HE WERE IN CLASHGS' SEAT. THAT
DLASHGS' A TEJ TO REMAIN SILENT WITHOUT HIS LAWYER WERE I WILL LEGITIMATE AND THAT
HIS CLANL GOES OF OF A FIFTH MEMENTD FRIF SHOWED THE PROTESTATIONS OF INNOCENCE
WERE KWOETD OPAQUE. THE PROSECUTOR THIN IMPROPERLY USED THE
STATE'S DIRECT EXAMINATION AND SUMMATION TO FOCUS JURORS TAENGS ON WHY CLASHLG WOULDN'T
CLEAR HIS OWN NAME. THIRD POINT TO HIGHLIGHT THE TRIAL DOERT FAILED TO
TELL JURORS NOT TO USE THE FIFTH AMENDMENT INVOKES AS EF OF GUILT. EVEN WHEN THE
JURY RE#W56R7D CLASHGS' INL VOCATIONS OF HIS RIGHT TO COUNSEL ALL OVER AGAIN IN
SUMMATION, THE COURT STILL GAVE NO CURATIVE INSTRUCTION. ED ADD IN A CASE
LIKE THAT NO INSTRUCTION COULD HAVE CURED THE HARM. FOURTH, THE STATE FOUND NO
DIRECT EF OF GUILT SO IN LATE OF THE WEAK FROOFRS THAT CLARK HAD ANYTHING
THO DO DW THIS OFFENSE NO ERROR WAS HARM WRIST. TAKING A STEP BACK FROM DLASHGS'
CASE I WOULD UNDERSCORE IT'S IMPERATIVE THAT PEOPLE WHO ARE IN THE COURSE
OF ENVIRONMENT OF A CUSTODIAL INTERROGATION WHO ARE A KULSZED OF CRIMES AND WHO ARE
MIRANDIZED SHOULD FEEL FREE TO EMBRACE THE CONSTITUTIONAL RIGHT TO THE AID
OF A LAWYER. PEOPLE MUST NOT FEAR THAT A REQUEST FOR A LAWYER IN THE FACE OF
ACCUSATION WILL BE USED FWENS THEM AT TRIAL WHICH IS AN OR TO CURE A WRONGFUL
CONVICTION. FOR THE TRIAL COURT TO LETD THE STATE USE AS EF OF GUILT WITHOUT ANY
LIMITING INSTRUCTION THAT MY CLIENT ASKED FOR THE AID OF OF A LAWYER RATHER
THAN TO TRY TO PERSUADE OFFICERS OF HIS INNOCENCE IN THE FACE OF ACCUSATION UNFAIRLY
PENALIZED CLARK FOR EMBRACING HIS CONSTITUTIONAL RIGHTS WHICH CLEARLY
CAPABLE OF CAUSING AN UNJUST RESULT AND REQUIRES A NEW TRIAL. SO
THAT DOES CONCLUDE MY OEJ STATEMENT I WOULD NOW GO ON TO FIRST THAT THE INVOKES
S OF THE RIGHT TO KUN QUESTIONER NOT ADD MISS ILTH IBLT THE THE TRIAL KOIRT
HAS AN #I7B8D EVENT GAIT KEEPING RESPONSIBILITY TO SHUT THESE CONSTITUTIONAL
DISTRIBUTIONAL INVOKESS OUT AND TO GUARD AGAINST IMPERMISSIBLE IN FOR INSTANCE
EAST THERE PROHIBITION IT GOES FWAK TO MIRANDA KWOIT THE PROSECUTION MAY
NOT USE AT TRIAL THE FACT THAT AN INDIVIDUAL STOOD FLUT OR CLAIMED HIS
PRIVILEGE IN THE FACE OF ACCUSATION. MAKING EVIDENTIARY USE OF THE
EXERCISE OF THE CONSTITUTIONAL DISTRIBUTIONAL RIGHTS BREEFRMS THE #23E6R89S
FROFRMENTS WAS FUNLTLY UNL IF A IR WAS BARRED BY THE DUE PROCESS CLAUSE TO WITNESS
THE GOVERNMENT PROMISED CLARK THAT HE HAD THE RIGHT TO A LAWYER AND THE
RIGHT TO STOP TALK CAN AT ANY TIME AS COAT IS SFLAND IN KWAN RIGHT THE RIDE WILL GO
6 THESE MIRTD RIGHTS CONVEYED THE GOVERNMENT'S AN HAURN SLERPS CLASHLG
RERIEND ON THE GOFRNLTS FROTS ONES WHEN TORTHS OR AP KUTSDZED CLARK EVER SMURD ER
ARN ASKED PRELS I AM HED TO #1KU7B8 HOOE WAS INDUCED TO FLFRTS RIGHTS THE
REASON FOR THE PRO MA BIGS IN MIRANDA IS THAT COMMISSION OF A FIFTH AMENDMENT INVOKES
IS A PENLTD. NO MATTER THE RIGHTS PROTECT BY THE CONSTITUTION QUOTE SILENCE
IN THE FACE OF ACCUSATION THIS IS FROM MIRANDA IS ITSELF DAMING AND WILL BOED ILL
WHEN PRESENTED TO A JURY. SO I WOULD LIKE TO A DRAES THE HARM MY SECOND POINT.
THE HARM FROM THE FIFTH AMENDMENT INVOKES EF WAS CAPABLE OF CAUSING UNJUST RESULT
AT CLASHGS' TRIAL. THIS WASN'T JUST A FWAR FLEETING RECORDATION OF THE
DEFENDANT'S SAYING CALL MY LAWYER, THE STALT PRESENTED VIDEO EF THAT CLARK ASKED
FOR A LAWYER 3 TIMES IN RESPONSE TO ACCUSATIONS IN THE MID- THE OF INCISION SIN
KWAGS ALSO THAT THE INVOKESS WERE NOT CONSISTENT WITH FLOELS EVENT SO HIS
FIRST REQUEST TO CALL MY LAWYER WAS GIVEN WAS IN RESPONSE TO BEING PRESSED FOR
PROOF OF ALIBI THINGS LIKE TELL US EXACTLY WHERE YOU WERE, I WILL HAVE IT
RUN DOWN IN AN HOUR WE HAVE 50 GUYS OUT THERE IT WAS LTS IN RESPONSE TO THE
INTERROGATION ORS AK SITUATION THAT CLARK WAS A NURTD RER WHO WAS LYING ABOUT
HIS ALIBI THINGS LIKE IT'S GAME OVER IT WASN'T TRUE YOU WEREN'T WITH ANYBODY WHO
IS GOING TO SAY OH YEAH CUE WAS WITH KNEE SO HE ASKED TO CALL MY ATTORNEY THEN
HIS SECOND REQUEST TO GO GET MY ATTORNEY JUST A FEW MINUTES LATER WAS A RESPONSE
TO AGAIN BEING PRELSED FOR PROOF OF ALIBI DO YOU WANT US TO RUN THAT DOWN ET
CETERA ET CETERA. WAS IN RESPONSE TO THE TERTHD OR OPINING THAT ASKING FOR A LAWYER
WAS NOT WHAT HE AN INNOCENT PERSON WOULD DO IF HE WERE IN CLASHGS' SEAT SO
QUOTE IF I WAS SITTING IN YOUR SEAT SOMEBODY WAS TELLING ME THAT I AM GOOD FOR MURDERING
THE GUY I WOULD SAY YOU KNOW WHAT? I WAS WITH THIS PERSON. YOU CAN GO COLLECT
HIM I AM NOT ON THE HOO CAN FO ARE THAT IF I DWAS ONLY THE HOOK FO ARE SOMETHING
LIKE THAT I KWO PROBABLY SAY WHO I WAS WITH LET US RUNL IT DOWN AND IT WAS
GIVEN IN RESPONSE THE SEK INVOKES WAS GIVEN IN RESPONSE TO THE INTEGRITY OR OPINING
QUOTE THAT SHOEDZ HE WAS LYING QUOTE YOU HAVE ABSOLUTELY NO DESIRE TO TELL
US WHO YOU WERE WITH BECAUSE IT'S BULLSHIT. SAME THING THIRD REQUEST TO GO GET
MY ATTORNEY WAS IN RESPONSE TO AGAIN BEING PRESSED FOR PROOF OF ALIBI. SO ALL
THIS EF CASTS INTEREST VOCATIONS IN A SUSPICIOUS LIGHT WITHOUT THE PROSECUTOR NEEDING
TO SHA A WORD IT'S KIND OF LIKE WHAT HAPPENED IN TONGUE THE INTERROGATE OR
MADE COMMENTS TO THE DEFENDANT THAT AN FLOWS EVENT IN AND WOULD NOT BE ASKING FOR
A LAWYER THE TOERTH OR PLAINLY SUGGESTED DOING THE DIRGS THAT HE COULD NOT
UNDERSTAND WHY THE DEFENDANT KWO WANT TO KULTH A LAWYER THE NAG TUD OF THE HARM
HERE I WOULD SAY WAS GREATER BECAUSE OF THE MUMENT I MEDIA NATURE OF THIS COMING
FROM THE DEFENDANT'S OWN LIPS. SO ON THE NOT ONLY IS IT SPECIFIC AND NOT
GENERAL LIESZED ITSD NO LONGER SICK HAND IT IS FIRST HAND THERE IS A VIDEO RECORDING
THERE IS AN AUDIO RECORDING THERE IS A TRANSCRIPTION OF CLARK INVOKE CAN
HIS RIGHTS IN THE FACE OF ACCUSATION REQUESTS FOR EXCULPATORY PROOF. SO STHAS'
MORE HARMFUL THAN WHAT WE HAVE SEEN IN THE PAST LIKE IN THE 90S THE 90 CASES
OCEAN BE 1991, HIDE 1996, MORE 97, FWEES INTERPRETER 98, OLD STRAR REAND TOEB IN
IN 2001 THE PROSECUTOR JUST ELICITING TESTIMONIALAL IT IS NOT JUST A
STATEMENT TOO IT IS THE EXPLOITATION. DANIEL S. ROCKOFF: YES.
JUSTICE ALBIN: I AM LOOKING AT PAGE 177 RIGHT AFTER THE STATEMENTS READ
TO THE JURY. IF THERE WAS ANY DOUBT IN THE JURY'S MIND THAT THE FIRST
QUESTION SORT OF RIE SOFRD IT DETECTIVE DURING THE KOERLS OF OF THAT STATEMENT DID
MR. CLARK TELL YOU WHO HE WAS WITH THAT DAY? NO, SIR. DANIEL S.
ROCKOFF: THAT'S CORRECT SO THE PROSECUTOR USED DIRECT EXAMINATION AS WELL AFTER
THE VIDEO WAS PLAYED THE HARM FROM THE VIDEO TO COMMENTS OR TO USE THE
IMPROPER TRIAL TACTIC TO COMMENTS ON SCLASHGS SILENCE. SO IT IS THE SEQUENCE OF
THE PRESENTATION I THINK THAT MAKES IT SO DAMING. MAKING REFERENCE AT TRIAL
TO ONE OF THE DEFENDANT DIDN'T SAY TO THE POLICE IS COMMENTSING ON HIS SILENCE
IT IS I AM INL MOIBL FOR A PROSECUTOR TO I AM FLY AS THE QUOTE YOU JUST
GAVE DO THAT AN NOELS EVENTS MAN WOULD NOT HAVE STOPPED SPEAKING TO THE POLICE
THAT DEFENDANTS GUILT KOBL INFERRED FROM HIS SILENCE. THIS CONTINUED IN
SUMMATIONS. THE PROSECUTOR SIMILARLY USE SUMMATION TO COMMENT ON THE
DEFENDANT'S INVOKESS SO THE PROSECUTOR CALLED JURORS REES ATTENTION TO CLASHGS
RESPONSE WHEN THE TERTHS OR FRAK CLI BEG HIM TO GIVE UP PROOF OF ALIBI AND
SO THAT LAW ENFORCEMENT COULD TRACK IT DOWN. UNG THAT IS AN UNMISTAKABLE REFERENCE
TO THE MOMENTS CLARK ASKED FOR A LAWYER UPON BEING AND TREATED FIVE TIMES
IN A ROW BY THE INTERROGATE OR TO LET OFFICERS RUNL IT DOWN RUN THAT DOWN RUN THAT
DOWN RUN IT DOWN ROUN RUN THAT DOWN AGAIN PRACTICALLY BEG HIM SO THAT LAW
ENFORCEMENT COULD TRACK HIM DOWN IT'S A REFERENCE BACKS TO THE EXCHANGE WHERE CLARK
IS INVOKE CAN WHICH IS LIKE TOE BINL SO ANOTHER PROSECUTOR USED SUMMATION TO
CALL ATTENTION TO THE DEFENDANT ASKING FOR A LAWYER CLAJING HIS RIGHT TO REMAIN
SIELT IN SNONS TO BEING PRESSED BEGDZ HERE BY THE INTERROGATE OR TO LET OFFICERS
RUN DOWN PROOF OF ALIBI. AGAIN, SORT OF THE SAME BREDZ IN IN SUMMATION THE ASSISTANT
PROSECUTOR IS CALLING ATTENTION TO CLASHGS' POST MIRANDA SILENCE THE QUOTE
IS SO CLARK WON'T GIVE UP THIS FERNL WHO HE IS DOING BUSINESS WITH ANAL PIE WITNESS
I'M STILL WON'T EVEN AFTER HE'S READ HIS MIRANDA RIGHTS. SO A KWOELT LIKE
DOYLE VIOLATES DUE PROCESS FOR A PROSECUTOR THO CALL ATTENTION TO POST MIRANDA
SILENCE THE COMMENT HERE I AM MROO IS THAT A FLOWS ERNLTS PERSON'S RESPONSE TO
BEING MIRANDIZED WOULD BE THE TALK TO PROVE NOTE ENS ABOUT YOU EVEN BRATS
ING THE MIRANDA RIGHTS AFTER ANYWHERE RIGHTS HAVE BEEN READ TO YOU SOMEHOW THAT
IS SUSPICIOUS. SAME BREADTH THE PROSECUTORS DIRECTING JURORS I THINK DIRECTING I WOULD SAY TO FOCUS DELIBERATIONS ON WHY THE DEFENDANT WOULDN'T
ALSO DRIGER VIA TAR AND DOYLE BOATS OF WHICH STAND FORTD #3R078 SITUATION
THAT WHEN YOU INVOKE YOUR SILENCE, IT ALSO RENTS THE FACTS THAT THE DEFENDANT IS NOT
REQUIRED TO GIVE HIS EXCULPATORY STORY TO THE POLICE THAT IS THE VERY PURPOSE
OF GIVING THE PERSON THE RIGHT TO REMAIN SILENT EITHER BY INVOKE CAN THE RIGHT
TO COUNSEL OR JUST SAYING I TOENT TWANT TO TALK. DANIEL S. ROCKOFF:
RIGHT SO THAT GOES TO THE OTHER PROSECUTOR SAYING ASK YOURSELF WHY WHY WHY IS
IT WHY BASICALLY WHY IS CLARK REMAINING SILENCE WHY SNTH HIGHEST CLEARING
HIS OWN NAME WHY ISN'TLY GIVE UNDOCUMENTED IMMIGRANT PRUCH OF ALIBI I KWO LOOK
BACK AT TONGUE FARTS OF THE COUPLE TIFR PRENL TIS IN TONGUE IT WASN'T JUST THE
ADMISSION OF THE STAJT IT WAS OFFICERS SAYING THINGS LIKE WHY WHAT IS THE REERNS
WHY ARE YOU REMAINING SILENT HERE THE PROSECUTOR ACTUALLY RAISES THE SAME
QUESTION ASK YOURSELF WHY IN SUMMATION. SO WHY IS IT PATD PATD IN THIS CASE HE HAD
ACTUALLY MENTIONED BEING IN A PLACE AND WITH A PERSON AS AN ALIBI.
DANIEL S. ROCKOFF: YES BUT SO LIKE ALL THE IT'S RL CLEAR FROM SUM MAKES
THAT THE PROSECUTOR IS KBL REFERRING RL TO ANYTHING THAT PRECEDES LIKE THE
INVOKES EXCHANGE. SO IF YOU LOOK BACK AT EARLIER IN THE STATEMENT TO WHEN THE WHEN
THEY ARE DISCUSSING LIKE HIS ROUTE THROUGHOUT THE DAY, THE TESHTHS OR DOESN'T
PRESS HIM DREL DOESN'T BEG HIM SFW WHO HE WAS ABOUT WHO HE WAS WITH DOESN'T
EVEN DREL ASK HIM WHO HE WAS WITH, DOESN'T OVR TO HAVE LAW ENFORCEMENT TRACK THE
PERSONAL DOWN FLON OF THAT HAPPENED UNTIL RIGHT BEFORE THE FIRST INVOKES
SO WHEN THE PROSECUTOR LIKE SAYING ASK YOURSELF WHY LIKE EVEN DW E HE WAS PRACTICALLY
BEGGED TO HAVE LAW ENFORCEMENT TRACK IT DOWN IT RL CAN'T FWEE REFERRING
TO ANYTHING THAT PRECEDES THE INVOKES EXCHANGE PATS PAT JUST TO BE CLEAR THERE
IS A DISTINCTION ISN'T THERE BETWEEN A SITUATION WHERE IN A VACUUM THE STATE
TAKES THE POSITION THAT HE WAS WITH THE OFFICERS ALL DAY TALKING ABOUT THIS AND
HE NEVER MENTIONS HE NEVER PROVIDED AN ALIBI HE NEVER SAID WHAT HE WAS DOING
VERSUS THIS INDIVIDUAL ACTUALLY OFFERED A VAGUE ALIBI IN THIS CASE HE ACTUALLY
BROUGHT UP THAT HE WAS WITH SOMEBODY. DANIEL S. ROCKOFF:
RIGHT. SO LIKE ABLS THE INVOKES THE PROSECUTOR CAN CERTAINLY EXCELLENT ON
VAGUENESS CAN NEVER COMMENTS ON THE DEFENDANT'S SILENCE BUT CAN CERTAINLY COMMENTS
ON VAGUENESS. JUSTICE PATTERSON: CAN COMMENT ON COULD
COMMENT ON HIM BRINGING UP THAT HE WAS WITH SOMEBODY IN A PARTICULAR PLATES AND
THEN WOULD NOT IDENTIFY PROVIDE ANY PARTICULARS. DANIEL S.
ROCKOFF: YES. BUT I THINK GIVEN THE WAY THE STARD WAS STAJT WAS PLAYED THE TERTHS
ORS INSINUATIONS, THE DIRECT EXAMINATION THE FACT THAT IT WAS THERE WAS
A QUESTION ABOUT HIS SILENCE IMMEDIATELY AFTER THE INVOKESS WERE PLAYED, AND THEN
IN SUMMATION IT IS SO CLEAR THAT THESE COMMENTS ARE REFERRING DREL BACK
TO THE INVOKES EXCHANGE REGARDLESS OF WHAT OTHER ARGUMENTS THE PROSECUTOR COULD
HAVE MADE IT IS SO CLEAR THAT THE PROSECUTORS USE OF THESE INVOKESS FROM
START TO FINISH WAS A DIRECT ATTACK ON MY CLIENT'S FIFTH NEMENT RIGHT TO COUNSEL.
SO I WOULD MOVER ON TO MY THIRD POINT SO THERE WAS NO LINLING INSTRUCTION.
CHIEF JUSTICE RABNER: MR. ROCK OFFER BEFORE YOU GET THERE.
YOUR FIRST 2 POINTS YOUR ARGUMENT IS THAT IT WASER ARE OR IT WAS E GREEJ US WAS
THE TRANSCRIPT THAT THE JURY HEARD A VERSION THAT BOTH COUNSEL GREED TO
IN ADVANCE? DANIEL S. ROCKOFF: THE SO I WOULD SAY LIKE AT
MINIMUM WE ROIS THAT RECOGNIZE THAT AT AN ANYONE MUM WE HAVE TO RECOGNIZE THAT
THE DEFENSE COUNSEL HER INITIAL POSITION WAS THAT ALL STATEMENTS TO LAW
ENFORCEMENT SHOULD BE SUPPRESSED SO EVEN THOUGH THERE WAS A MOTION TO SUPPRESS MAIDEN
FOO THOUGH THERE WAS A MOTION TO SU SFRES THAT WAS MADE ON DIFFERENT GROUNDS,
IT'S CLEAR THAT DEFENSE COUNSEL WASN'T PLAYING ELEVENTH DIMENSIONAL CHEST THAT
SHE ASKED THE COURT FO SU FRES ALL STATEMENTS FOEFRT MIRANDA WAIVER. SO TO
THE EXTENT THAT THE PROSECUTOR IS PRESENTING THIS PRESENTING NOT JUST THE VIDEO
BUT THE TRANSCRIPT TO THE JURY, DEFENSE COUNSEL HAS ALREADY MADE KNOWN HER
POSITION THAT NONE OF THIS THAT NONE OF THE DEFENDANT'S STATEMENTS SHOULD BE
PRESENTED TO THE JURY. CHIEF JUSTICE RABNER: SO THERE IS AN SCLANG
THE AL EXCHANGE BETWEEN THE PROSECUTOR AND DEFENSE ATTORNEY WHO IS NOT YOU AND
THE DEFENSE ATTORNEY IS ASKED TELL ME WHAT'S CLEERL ADMISSIBLE AND SHRUBBERY
DAKD? AND COUNSEL THEN IDENTIFIES THE PROPOSED LIST OF REDACTIONS BUT DOESN'T
HAVE ANY PROBLEM WITH THIS COMING BEFORE THE JURY. IS THAT KRAT SFLOO FIRST
OF ALL I WOULD SAY LIKE I JUDGE US SAID ONE IT IS OBVIOUS SO HER INITIAL POSITION
FROM THE RECORD WE KNOW WHAT SHE SAID TO THE TRIAL COURT WAS THAT THESE
STATEMENTS SHOULD BE DID YOU SUE PRESSED THAN EVEN IN THESE AIMS.
CHIEF JUSTICE RABNER: JUST FOR TIME PURPOSES SO THAT MOTION WAS PRESENTED THAT
MOTION WAS RULED UPON AND THEN WE GET INTO WHAT IS IT THAT THE JURY IS GOING
TO HERE IN LIGHT OF. DANIEL S. ROCKOFF: RIGHT.
CHIEF JUSTICE RABNER: DOES COUNSEL REQUEST THAT THIS THESE FAST JES THAT YOU HAVE
REFERRED TO TOWARD THE ENDS OF THE STATEMENT FWEE REDACTED.
DANIEL S. ROCKOFF: SO FIRST OF ALL I TLITS NOT REALLY CLEAR FROM THE ALS WHAT
THOSE PAGE NUMBERS WERE EVEN REFERRING TO THE PAGE NUMBERS ANLTS ATTACHMENT
I WOULD POINT OUT DO NOT ACTUALLY MATCH UP WITH THE COPIES OF THE STATEMENTS THAT
WE HAVE THE PAGE NUMBERS ARE DIFFERENT LIKE THEY GO BEYOND THE MAXIMUM NUMBER
OF PAJS IN THE FINAL STATEMENT. CHIEF JUSTICE RABNER: COUNSEL ISN'T
THAT CLARIFIED BY THE RESPONSE THE AL THAT FOLLOWS. DANIEL S.
ROCKOFF: NO I THINK WELL I THINK IT IS COMMON FOR DIFFERENT COMMENTS OF STHANLTD
TO NOTES ORNLDZ WITH DIRNL PAGE NUMBERS ALS FROM THE PROSECUTOR DON'T CLARIFY.
CHIEF JUSTICE RABNER: LET ME ASK YOU THIS THEN. ARE YOU TELLING
US THAT DEFENSE COUNSEL DID ASK FOR THIS TO BE REDACT BUT THAT THERE WAS A MISTAKE
SOMEHOW MADE. DANIEL S. ROCKOFF: I AM SAYING THAT THOSE
ALS JUST DON'T CLARIFY EITHER WAY WHICH TAKES US BACK TO THE RECORDS WHICH IS
WHAT DEFENSE COUNSEL ASKED ON THAN RECORD FOR SUPPRESSION OF STATEMENTS TO LAW
ENFORCEMENT. I WOULD SAY AT A MINIMUM THIS ISN'T. CHIEF JUSTICE
RABNER: COUNSEL LET'S STAY 2000 THIS AREA BUT I AM STRUGGLING TO UNDERSTAND WHAT
HAPPENED HERE. IT CERTAINLY APPEARS AS THOUGH THE DEFENSE COUNSEL PROPOSED
SPECIFIC REDACTIONS ON THE SUBJECT OF JAIL BAIL OR DRUG DEALING. DID NOT IT
APPEARS FROM LOOKING AT THE EXCHANGE ASK TO HAVE THE LANGUAGE OF BENEFIT OF COUNSEL
REDACT THEN THERE IS SOME BACK AND FORTH ABOUT WHICH PAGES APPLY AND ANOTHER
LISTING OF PAGES THAT SEEMS TO ALLOW THE CRITICAL LANGUAGE ON PAGES 4950 AND 5120
COME IN. AND COUNSEL SAYS THANK YOU DEFENSE COUNSEL THANK YOU FOR ASHG
DATING I HAVE NO OBJECTION AND SO ON. DANIEL S. ROCKOFF: ONE THING
THAT I WOULD SAY EVEN WHAT YOU JUST READ TO ME DEFENSE COUNSEL NEVER ACTUALLY
ASKS FOR ANY STATEMENTS TO COME IN SO AT A MINIMUM THIS ISN'T INVITED ERROR THE
DEFINITION OF INVITED ERROR INVITE VOOD ERROR HAS A VERY SPECIFIC DEFINITION
WHEN APART RECEIVES THE TRIAL COURT TO TAKE A CERTAIN COURSE OF ACTION. DEFENSE
COUNSEL NEVER EVEN IN THOSE E-MAILS NEVER SKSD FOR A FLI STATEMENTS TO COME
IN. I MEAN SHE'S AT BEST AT WORSE SHE'S TRYING TO MAKE LEMONADE OUT OF LET ME
MONLS AFTER HER MOTION HAS BEEN DENIED. BUT THIS IS ENTIRELY BEING DRIVEN BY THE
PROSECUTOR THE PROSECUTOR ALONE AT TRIAL IS CLEAR IS THE SOLE PAERT TO HAVE
INTRODUCED. JUSTICE SOLOMON: DIDN'T SHE IN HER CROSS-EXAMINATION
OF DETECTIVE RAYNOR SPICHL REFER TO THE THINGS THAT WE'RE TALKING ABOUT? DID YOU
CHARGE HIM THAT DAY? DEFENDANT SAID TO YOU A NEW JERSEY OF TIMES CHARGE
ME WITH THIS, CALL MY LAWYER. THAT'S DEFENSE COUNSEL SAYING THAT AT TRIAL IN
CROSS-EXAMINATION OF DETECTIVE RAYNOR AND THEN SHE ARGUES THAT VERY POINT
AND CLEARLY HE IS NO, SIR EVEN HE NEVER CONFESSED NOT 2000 STANG ALL THIS STUFF
AND ALL TLEEGS TIMES HE WAS BADGERED AND ALL THESE TIMES HE REFUSED TO INL
KRANL NAT HIMSELF K HE TLANL COMBROO THAT AT DRIEL. DANIEL S.
ROCKOFF: I WOULD RESPOND IN A FEW KWAS FIRST OF ALL I THINK THAT AGAIN WOOR SHE IS
MAKING LET ME NONLS OUTS OF LENL NAD THE BELL HAS BEEN RUNG S BELLS CAN'T
BE UNRUNG. JUSTICE SOLOMON: WAS THAT ARGUMENT VR MADE AT
TRIAL IN ANY POINT? IS THERE ANY INDICATION SHE DIDN'T KNOW EXACTLY WHAT SHE WAS
DOING AND USING HIS STATEMENTS AND THE WAY HE GAVE THEM AS EF THAT HE'S INNOCENT
BECAUSE HE NEVER CONFESSED? DANIEL S. ROCKOFF: WELL THE ULTIMATE
QUESTION HERE IS THE EFFECT ON THE JURY AND NOT WHAT DEFENSE COUNSEL IS
THINKING. BUT EVEN SO. JUSTICE SOLOMON: YOU RAISED THE INVITED
ERROR QUESTION. DANIEL S. ROCKOFF: AT MINIMUM IT IS NOT
LIESHLG I SAS ^ WHAT I CAN ^ WAKE IT WAS VIETDED ERROR DEFENSE COUNSEL WAS NOT
FWEE SEEFRPG FLIENL FOR THESE STANLTSDZ TO COME IN IT IS JUST THE PROSECUTOR WHO
WAS MOFRGD FOR THE STATEMENTS TO COME IN I WOULD POIFRNT OUT EVEN LIKE EVEN
DEFENSE DEFENDANTS. JUSTICE SOLOMON: BE SEEFRPG THE JURY TO
CONSIDER THE FACTS THAT YOU ARE NOW SAYING WERE ARE ROR IN ACQUITING HIM.
DANIEL S. ROCKOFF: SO FIRST OF ALL HER REFERENCE TO THE LYING FROM DEFENDANT
WAS I THINK IN PARTY WOULD SAY COULD BE PERCEIVED AS INCIDENTAL INCIDENTS
AL SHE'S MAKING APPOINTS INDEPENDENT OF THE INVOKES ITSELF WHICH IS THAT POLICE
DIDN'T CHARGE THE DEFENDANT. SO THE VOCATION. JUSTICE
SOLOMON: EVEN SO AT THE ENLTD #79D VIDEO THE DEFENDANT SASZ A NEW JERSEY OF TIMES
CHARGE KNEE WITH THIS CALL MY LAWYER. HE SLADZ TO CHARGE HIM THAT DAY SHE
SAID THAT. DANIEL S. ROCKOFF: THE QUESTION THAT IS SHE IS
NOEKING ONLY IN KROINGS IS THE FACT THAT THE POLICE DIDN'T CHARGE THE DEFENDANT
THAT DAY WHICH IS THE POINT INDEPENDENT GOING TO LACK OF PROBABLE CAUSE OF THE
INVOKESS THEMSELVES. MOREOVER, THE POINTS THAT AGAIN THIS IS ENTIRELY DRIFRNL
BY THE PROSECUTOR SO I GO FWAK TO THOSE E-MAILS THE PROSECUTOR IN THOSE
E-MAILS IS SAYING LET'S LET BOTH STATEMENTS KONL IN THE STAM FROM JANUARY TWKS AND THE
STANLT FROM JULY TWKS WHAT HAPPENED AT TRIAL? THE PROSECUTOR DID NOT
INTRODUCE THE JULY TWKS STATEMENT. THE DEFENSE COUNSEL SEEK TO THEN ELICIT THAT
STATEMENT INDEPENDENT? LY NO THIS IS LIKE THE FACT OF THE ELICITATIONS THEMSELVES
WHAT DEFENSE COUNSEL SAID TO THE POLICE HER DID HE EVER KOUNS POSITION WAS
VERY CLEARLY AS PER THE MOTION TO SUPPRESS THAT THESE SHINLTS NOUDZ COT MANY COME
IN. CHIEF JUSTICE RABNER: CAN YOU TELL US IF YOU ARE RIGHT
THIS THIS WAS ERROR AND THAT IT SHOULD HAVE NEVER COME UP BEFORE THE JURY, WHETHER
IS THIS SHOULD BE AND LIGHTSED ON DIRECT APPEAL OR AS PART OF THE PCR?
DANIEL S. ROCKOFF: IT SHOULD BE AND LIGHTSED NTD DREKTD
APPEAL AND FLAS' IT'S A PLAIN ERROR STARD IT IS REVERSE IBL ANLDZ THE PLAIN ERROR
STARD CHLTD THE ULTIMATE ISSUE HERE IS THE EFFECT ON THE JURY WHETHER THE
ADMISSION OF CONSTITUTIONALAL INVOKESS HARM THE DEFENDANT'S RIGHT FOR A FIR TRIAL
SO JUST LIKE FOR EXAMPLE LIKE ANYTHING THAT COULD BE COMING IN THAT'S
IMPORTANT TO THE DEFENDANT REFRNTS TO A WARRANT SO THIS ISN'T A CASE WHERE LIKE
UNG THE INVOKESS COMING IN THE FACT THAT A JURY IS REALLY BAD THAT IS SOMETHING
THAT CAN BE DEALT WITH ON DIRECT APPEAL THE ISSUE HERE AGAIN IT IS NOT WHAT
DEFENSE COUNSEL WAS THILG THE ISSUE ISN'T WHETHER LIKE THE INTERROGATION COULD
CONTINUE UNDER THE LIKE ANY PARTICULAR STARD, THIS IS SOMETHING CONSIDERING
THE EFFECT ON THE JURY OF THESE CONSTITUTIONALAL INVOKESS HAVING COME IN IS
SOMETHING THAT IS FOINLLY WITHIN THE REALM OF DIRECT APPEAL. CHIEF
JUSTICE RABNER: DO DWEE KNOW FROM THE RECORD WOOEF THAT THERE NIGHT HAVE BEEN SOME
STRATD GEE HERE OR WAS IT A SIMPLE ERROR IN YOUR JUDGMENT. DANIEL
S. ROCKOFF: I THINK IT IS AN ERROR. AGAIN WHAT DEFENSE COUNSEL WAS THINKING IS
NOT THE ULTIMATE QUESTION HERE IT'S THE NORD NARTLY PREJUDICIAL EFFECT ON
THE JURY. I GO GO TO THE MASS SFROURT AS I IS AN I HAD IN MY BRIEF THE DID HE EVER
OF DOILT ERROR IS SO E GREEJ US THAT REVERSAL IS THE NORM NOT THE
EXCEPTION. CHIEF JUSTICE RABNER: SO WHAT COUNSEL WAS THINKING
WOULD BE RELEVANT IF THIS WERE ANALYZED UNDER THE FRAMEWORK FOR AN INEFFECTIVE
ASSISTANCE OF KUN WE DON'T HAVE THAT WE JUST HAVE THE SCLANG OF ALS THAT ENDS
WITH I HAVE NO OBJECTION TLANGS FOR COMING IN. DANIEL S. ROCKOFF:
I WOULD JUST TURN TO WHAT IFSHL SAYING WHICH IS WOO E KNOW WHAT COUNSEL WAS
THINKING ONLY P RECORD WHICH IS FLON OF THESE STATEMENTS SHOULD COME IN AFTER THAT
NOTION IS DENIED SHE'S TRYING TO MAKE LET ME TELL NATD OUT OF LET ME MONS
PATS PAT NOTHING STOPPED HER NOTHING STOPPED HER FROM SAYING IN ADDITION TO JAILING
BAIL THE DRUG ISSUES THAT WERE THE FOCUS, I WANT THE FOLLOWING REMOVED BECAUSE
IT IS RELATED TO THE INVOKES, ET CETERA, THE ARGUMENT THAT YOU ARE NOW MAKING SO
YES YOU CAN SAY SHE LOST HER MOTION SO SHE HAD TO DEVELOP A STRATEGY BUT HOW CAN
WE TELL BASED ON THIS DIRECT APPEAL RECORD WITH NO TESTIMONY OR CERTIFICATION OF
COUNSEL THAT THIS WAS NOT STRATEGIC ESPECIALLY GIVEN THE FAK THAT SHE
AFFIRMATIVELY USED SOME OF THIS. DANIEL S. ROCKOFF: I WOULD POINT
YOU TO EVEN EVEN CASES I THINK HIDE IS IN THE HAPGS A LONG TIME AGO THEY
EVEN RECOGNIZE IN THAT CASE THAT EVEN IN A CASE WHERE THERE IS SOME INDICATION
OF DEFENSE STRATEGY QUOTE ENGAGEMENT UPON DEFENDANT'S CONSTITUTIONAL RIGHT
TO REMAIN SILENT QUALIFICATIONS IN OUR VIEW AS AN ERROR OF SUFFICIENT MAGNITUDE
TO OVERCOME THE USUAL RULE CHARGING DEFENDANT WITH THE CONSEQUENCES OF
ATTORNEY STRATEGY AND THEN AGAIN I WOULD SAY THIS ISN'T RL IN THE CASE HERE DEFENSE
COUNSEL DOESN'T QUANTITY THESE STATEMENTS TO COME IN SHE ASKED FOR THEM THE
TO BE EXCLUDED. ONCE THEY ARE EXCLUDED SHE DOESN'T EVER ASK THE PROSECUTOR OR THE
COURT FOR ANY STATEMENTS TO COME IN PATS PAT IF YOU MAKE A MOTION TO SUPPRESS
SUPPRESSING TS ENTIRE STAGE AND ILTS DOINDZ AND YET THERE IS A PROCESS GOING ON
HERE BECAUSE THERE ARE OTHER ISSUES OTHER THAN THE ARGUMENTS THAT WERE MADE
ON THE MOTION TO SUPPRESS, THERE WERE OTHER ARGUMENTS TO EXCLUDE PART OF IT SEE
THERE IS A PROCESS GOING ON AND I SUSPECT HAPPENS QUITE A BIT WHERE DISHL
REDACTIONS ARE BEING MADE EITHER BY THE STATE OR AT THE REQUEST OF THE DEFENDANT
OR BY STIPULATION WHICH IS SEPARATE FROM THE ORIGINAL MOTION TO SUPPRESS
THAT WAS DENIAL. IT DOESN'T MEAN I LOST MY WHOLE MOTION THEREFORE I HAVE LOST
THE BATTLE HERE THERE WAS AN A DISHL PROCESS TO EXCLUDES PORTIONS OF THE
STATEMENT. DANIEL S. ROCKOFF: RIGHT. NATD PATS SEE WE SEE
THAT KOEG ON IN THE ALS. DANIEL S. ROCKOFF: RIGHT BUT IN THE ALS
I POINT OUT OKAY I DON'T EVEN NO WHAT THE PAIN NUNLS REFER TO BUT THAT BEING
SAID WE DO KNOW THAT DEFENSE COUNSEL NEVER ASKED FOR ANY OF THESE STATEMENTS TO
COME IN SO LIKE THE INVITED DID HE EVER FLIGS OF INVITE THE ERROR JUST DOESN'T
APPLY HERE IN TERMS OF LIKE SEEING ANY INDICATION THAT TRIAL COUNSEL ASKED FOR.
JUSTICE PATTERSON: MY QUESTION IS WHETHER THERE COULD HAVE
BEEN A REASONABLE STRATEGY INVOLVED ESPECIALLY WHEN YOU LOOK AT THE OVERALL FACTS
OF THIS CASE, IN HAVING SOME OF THIS INFORMATION VABL TO THE NL TO ARGUE
THE VERY POINTS THAT JUZ SOL REFERRED TO THAT ACTUALLY WERE ALREADY.
DANIEL S. ROCKOFF: I WOULD JUST GO BACK TO MIRANDA THE COURTS BLACK LETTER LAW
THE COURTS RECOGNIZE HAVE RECOGNIZED FOR 50 YEARS THAT THE EFFECT OF A
CONSTITUTIONALAL INVOKES COMING IN SOMETHING THE DEFENDANT TO E GREEJ USLY. ^ BRAKING ^
BREAKING IT DOWN IF YOU'RE NO, SIR ENTDZ LIKE YA YOU ARE WHY ARE YOU INVOKE
CAN THE FIFTH IT'S THE SORT OF JUDGMENT THAT IS KWIEDZLY ACCEPTED AND KWIEDLY RECOGNIZED
HOW PEOPLE WOULD REACT. CHIEF JUSTICE RABNER: MR. ROCKOFF
ONE PART OF YOUR ANSWER IS PUSZ WILL GO TO ME I THINK WE KNOW PRECISELY
WHAT LINES WERE REQUESTED AND NOT SIMPLY XARTS ALS TO DEE A 77 SHTHS 78, 79, THE
PAGES NAFRP UP THE WORDS THAT WERE WERE MOVED REMOVED MATCH UP AND THIS
WAS LEFT SO THE QUESTION I WILL LEAVE WITH YOU IS THIS: CAN YOU EXPLAIN TO US
WHY THERE WAS NO REQUEST ON THE DEFENSE'S PART TO REDACT THIS CRITICAL LANGUAGE?
DANIEL S. ROCKOFF: I WOULD WE DON'T KNOW WHAT DEFENSE COUNSEL
WAS THINKING TO ANSWER YOUR QUESTION BUT I WOULD GO FWASHG TO MY POINT SHE ASKED
FOR THIS TO BE REDACT ONCE IT WAS THAT NOTION WALLS DENIED SHE NEVER ASKED
OR NEVER BE SEEFRPD THE COURT OR THE PROSECUTOR TO ADMIT ANY OF THESE STATEMENTS
WHEN THE PROSECUTOR CHOSE NOT TO INCLUDE IN HIS TRIEM PRESENTATION SOME OF
THESE STATEMENTS THAT HE INDICATED IN THESE ALS THAT HE WAS GOING TO PRESENT A
TRIAL DEFENSE COUNSEL DIDN'T PICK UP DIDN'T PICK THAT UP AND CHOOSE ANY OF
THEM INDEPENDENTLY HERSELF THIS IS A THESE ARE ADMISSIONS THAT ARE AT TRIAL ENTIRELY
BEING DRIVEN BY THE PROSECUTOR. JUSTICE ALBIN: I GUESS THE
DIVIDING LINE HERE IS BETWEEN PLAIN ERROR AND VIETDED ERROR WHICH SUGGESTS
A STRATEGY AND I TAKE IT YOUR POSITION IS THAT WHAT STRATEGY COULD THERE BE SHE
MOVED TO SUPPRESS THE ENTIRE STATEMENT AND THEN PERMITTED IN THE MOST DAMING
PIECE OF EF WHICH PERMITTED THE PROSECUTOR TO SAY HEY WHY WOULD THE DEFENDANT NOT
TELL YOU WHO HE WAS WITH AT ROW BLING? LIKE WHY WOULD HE DO THAT? AND HE HASN'T
PRODUCED THAT PERSON. LIKE WHAT COULD THERE CONSTITUTIONAL BE ANYTHING
MORE #2K578ING THAN THAT. DANIEL S. ROCKOFF: CORRECT I DON'T KNOW
WLA WAS GOING ON IN JENNIFER DID HE EVER ATTORNEYS' HEAD BUT.
JUSTICE SOLOMON: SHE TELTS YOU WHAT IS GOING OONL IN HER HEAD SHE DOES IT WHEN
SHE IS CRINGE DVR RAIN NOR AND SHE TELLS YOU IN HER CLOSING THIS GUY'S CLEARLY
INNOCENT BECAUSE HE'S BADGERED HE'S PRESSED REPEATEDLY REPEATEDLY AND HE NEVER
CONFESSES. HE NEVER GIVES IT UP SNO. DANIEL S. ROCKOFF:
SO IF THAT WAS IF DWEFR COUNSEL WANTED THESE STATEMENTS IN SHE COULD HAVE
ADMITTED THE ENTIRE 70 SOME PAJS FROM SOL STATUTE OF LIMITATIONS WE KNOW EXACTLY
WE KNOW EXACTLY WHAT SHE IS THINKING AND SHE DEMONSTRATES IT IN HER
CROSS-EXAMINATION OF THE DETECTIVE AND IN HER CLOSING THAT SHE WANTS THE NL TO
BELIEVE THAT. DANIEL S. ROCKOFF: BUT SHE ONLY REPORTS
RESORTS TO THEEGS PAYMENTS AFTER THE PROSECUTOR HAS ALREADY ELICITED THEM THE TRIAL
COURT I THINK AT ONE POINT DESCRIBES. JUSTICE SOLOMON: CERTAINLY
EXPLAINS THE ALS IT CERTAINLY YOU TALK ABOUT STRATEGY IT CERTAINLY EXPLAINS
THE I MALES WHY SHE DIDN'T OBJECT TO THAT INTAU HER WHOLE ARTICLE IS GOING TOK
HE 0 WOULD HAVE CONFESSED WHAT GUY STANDS UP UNDER ALL THIS PRESSURE AND
STILL DOESN'T CONFESS. DANIEL S. ROCKOFF: I THINK ALS FRIENL
RETAKE A TWA FWR THEM IS THAT THE MOTION TO SUPPRESS HAS BEEN DENIED SHE IS STILL
NOT BE SEEFRPG THE PROSECUTOR TO LET ANY STATEMENTS IN. WHEN THE PROSECUTOR
DECIDES. JUSTICE SOLOMON: I UNDERSTAND. DANIEL S.
ROCKOFF: THE 70 PLUS FANLS FROM JULY THAT THE COURT DESCRIBES AS BEING 70 PLUS
PAJS OF DENIAL, THAT JENNIFER GOT CHALK IS THE DEFENSE ATTORNEY IS NOT PRLG
THEEG IS NOT PRESENT THESE STATEMENTS IN EVERY HERSELF. JUSTICE
ALBIN: IF THE STRATEGY IS LOOK, MY CLIENT WAS EXAMINED FOR HOWEVER LONG IT WAS
AN HOUR 2 HOURS AND NEVER CONFESSED, SHE WOULDN'T HAVE BEEN MAKING A MOTION
TO SUPPRESS THE ENTIRE STATEMENT WOULD SHE? I DON'T THINK SO NO? THE OTHER THING
I AM THINKING IN TERMS OF INVITED ERROR TYPICALLY AT LEAST I AM NOT SAYING
THAT THIS IS A GENERAL RULE THAT WOULD APPLY THO ALL CIRCUMSTANCES IS THAT THE
DEFENDANT AFFIRMATIVELY INTRODUCE EAST SOMETHING LIKE HEIRS SAY TO GAIN
SOME SORT OF ADVANTAGE AND THEN CAN'T BE HEARD TO COMPLAIN WHEN THE PROSECUTOR
WIENDZ UP INTRODUCING SOMETHING ELSE WHEREAS HERE NOT ONLY THE STATEMENT WAS
PLAYED BUT ON DIRECT EXAMINATION THE PROSECUTOR HANL ERD HOME THE FACT THAT THE
DEFENDANT DIDN'T NAME THE PERSON WHO HE WAS WITH IN ROBE BLING. AND THEN WAS
RESPONDING IN RESULT TO THAT. DANIEL S. ROCKOFF: THAT'S CORRECT
THIS IS ENTIRELY BEING DRIVEN BY THE PROSECUTOR FROM START TO FINISH. YOU
HAVE GOT VIDEO EF BEING PRESENTED BY THE PROSECUTOR WHICH HAS A GREAT MAGNITUDE
OF HARM IT IS MULTI MEDIA PRESENTATION FROM THE DEFENDANT'S OWN LIPS. AGAIN
USING DIRECT EXAMINATION TO COMMENTS ON THE DEFENDANT'S SILENCE THE FACT THAT
IMMEDIATELY AFTER THE JURY HEARS THAT HE INVOKE IN RESPONSE IN THE FACE OF
ACCUSATION THE PROSECUTOR CONFIRMS WITH THE WITNESS THAT HE DIDN'T TELL YOU WHO
HE WAS WITH, SIMILARLY USING SUMMATION TO COMMENT ON THE VIDEO THAT THE
PROSECUTOR AND THE PROSECUTOR ALONE PLAYED THAT THE INTERROGATE OR PRACTICALLY BEGDZ
HIM TO GIVE UP THE ALIBI SO LAW ENFORCEMENT COULD TRACK IT DOWN ALL COMING
FROM THE PROSECUTOR UNG SO TO THE EXTENT THAT THE QUESTION IS WHO ELICITED THIS
EF WHO PRESENTED THIS EF, IT'S FROM THE STATE AND THE DEFENDANT IS ONLY RACKING
TO IT. I WOULD LIKE TO DRAEGS EVEN IF EVEN IF THERE WAS SOME EVEN IF THIS
EF FOR WHATEVER REASON THAT ADMISSION WAS NOT ON ITS OWN CLEERL CAPABLE MUCH
CAUSING AN UNJUST RESULT THE FACT THAT THE TRIAL COURT ABROGATEED ITS RESPONSIBILITIES
TO GIVE A LINLTING INSTRUCTION I THINK IS GRAFRLY PREJUDICIAL. SO THERE IS
NO LIMITING INSTRUCTION HERE EVEN UNDER FEES INTERPRETER WHERE THE EF WAS PERMITTED
TO COME INTO SLOW AN ENDING WHICH AGAIN IS NOT APPLICABLE HERE THE TRIAL
COURT HAS AN INDEPENDENT GAIT KEEPING RESPONSIBILITY TO GIVE A HIMING INSTRUCTION
AND NONE WAS GIFRNL HERE EVEN WHEN THE JURY REWATCHED THE DEFENDANT'S INVOKES
ALL OVER AGAIN IN DELIBERATIONS. SO THE TRIAL COURT HAS LAD A DUTY UNDER FEES
INTERPRETER TO PROVIDE A CAUTIONARY INSTRUCTION EMPHASIZEING THAT THE
INVOKES OF HIS RIGHT TO COUNSEL MAY NOT IN ANY WAY BE USED TO INFER GUILT WAS NOT
GIVEN HERE. BY NOT GIVING ANY LIMITING INSTRUCTION WHILE THE COURT FAILED
TO GUARD AGAINST THE IMPERMISSIBLE INFERENCES THEN THE PROSECUTOR PROSECUTOR'S
EVERY AND ARTHSDZ SO THAT IN DELIBERATIONS THE JURY AGAIN ASKS TO REWATCH
THE INTERROGATION AGAIN THE INVOKESS WERE NOT FLEETING OR ISOLATED SO LIKE AS IN
TONGUE THE JURY HEARD THESE SCLANG EAST TWICE BOTH DURING TRIAL AND THEN
AGAIN DURING DELIBERATIONS AND AGAIN THE COURT PROVIDED NO LIMITING INSTRUCTION.
SO LIKE AS IN MOORE AS IN TONGUE THE FAILURE TO INSTRUCTS I WOULD SAY IS DI
SPOSITIVE HERE. AND I WOULD QUOTE MORE THEY SAY THAT THEIR VIEW OF THE CASE HINGEED
ON AN IMMEDIATE AND EFFECTIVE LIMITING INSTRUCTION NOT BEING GIVEN. SO I
WOULD EMPHASIZE HERE I DON'T THINK AN INSTRUCTION HERE COULD HAVE CURED THE ERROR
LIKE SOME BELLS CAN'T BE UNHUNG BUT IN IN CASE THE TRIAL COURT AB GREATED DID
NOT GIVE THE LINLT LGS INSTRUCTION ALS REQUIRED FOURTH I WOULD.
CHIEF JUSTICE RABNER: DID THE JUDGE KNOW THAT COUNSEL HAD GREED TO THAT PORTION
THAT WAS TO BE REDACT AND TO BE PLAYED? DANIEL S. ROCKOFF:
FIRST OF ALL I WOULD SAY THAT I DON'T THINK IT DOESN'T LOOK LIKE THERE IS AN
AGREEMENTS TO PLAY WHAT IS GOING ON IN THOSE ALS I HATE TO GO GAG BACK TO THEM BUT
THERE IS NO. CHIEF JUSTICE RABNER: GO AHEAD ANYONE FINISH
YOUR ANSWER. DANIEL S. ROCKOFF: THAT THERE IS NO INDICATION
IN THOSE ALS THAT DEFENSE COUNSEL WAS SAYING I WANT THESE STATEMENTS TO COME IN
BEING DRIFB ENTIRELY BY THE PROSECUTOR EVEN IF THE COURT. CHIEF
JUSTICE RABNER: WE UNDERSTAND YOUR POSITION ON THAT. DANIEL
S. ROCKOFF: OKAY. CHIEF JUSTICE RABNER: ASSUME THAT ONE MIGHT
INTERPRET THIS BACK AND FORTH AS COUNSEL HAVE SETTLE AND WHAT SHUDZ AND SHOULDN'T
COME IN WAS THE JUDGE MADE AWARE THAT COUNSEL HAD WORK THROUGH THIS?
DANIEL S. ROCKOFF: THERE IS THE RECORD DOESN'T SHOW DEFENSE COUNSEL AFTER
THE SUPPRESSION MOTION HAS BEEN NRD ON THE RECORD DISPUTING THE TRANSCRIPT
THATS PRESENTED TO THE JURY. BUT AT THAT POINT THE TRIAL COURT STILL HAS A GAIT
KEEPING RESPONSIBILITIES EVEN IF THE PAERTS EVEN IF THE PAERTS HAVE SETTLE
THEIR DIFFERENCES IN ORDER TO PREVENT AN UNJUTS RESULT TO MAKE SURE THAT.
CHIEF JUSTICE RABNER: I UNDERSTAND I AM LOOKING NOR YOUR HELP ON A DIRN
QUESTION. DANIEL S. ROCKOFF: OKAY IFRMENTD I AM NOT GOING
TO STONE YOU FROM MAKING THAT YOU HAVE MADE THAT ARTHD SGLURT WITH PASSION. WAS
THERE FROM THE RECORD ANY CONVERSATION FROM THE COURT ABOUT WHETHER COUNSEL
HAD SETTLE ON WHAT SHOULD COME BEFORE THE JURY? DANIEL S. ROCKOFF:
NO YOUR HONORS I DON'T BELIEVE SO. CHIEF JUSTICE RABNER: THANK YOU.
JUSTICE ALBIN: BUT YOU MUST HAVE KNOWN THERE WAS A MOTION
TO SUPPRESS THE ENTIRE STATEMENT WAS THAT BEFORE THE REDACTIONS OR AFTER THE
REDACTIONS. DANIEL S. ROCKOFF: THAT WAS BEFORE THE REDACTIONS.
JUSTICE ALBIN: OKAY SO THE JUDGE KWO HAVE KNOWN THE BEFORE
AND THE AFTER AND THEREFORE WE CAN INFER THAT HE MUST HAVE KNOWN THAT THERE WAS
SOME AGREEMENT TO THE REDACTIONS NO. DANIEL S. ROCKOFF: YES, YOUR
HONOR I WOULD AGREE 2000 THAT. JUSTICE ALBIN: SO ON THE FIRST
MOTION THO REDACT THE ENTIRE STATEMENT THE JUDGE HAD THE STATEMENT THE JUDGE
HAD A STATEMENT WHERE 3 TIMES THE DEFENDANT INVOKE HIS RIGHT SNFRMENT SUPPRESS
^ ( ^ ) THO COUNSEL AND THE COLLOQUY CONTINUED. I TAKE IT
IT IS YOUR POSITION THAT HEETD INTD EVENT OBLIGATION TO RAISE WHETHER OR NOT THAT
FURTHER KWOL KWEE SHOULD COME IN? GO AHEAD. DANIEL S. ROCKOFF:
YEAH. THE TRIAL COURT IT IS NOT JUST MY POSITION IT IS WHAT THE TRIAL COURT
HAS SAID IN FEES INTERPRETER THAT THE COURT HAS AN OBLIGATION TO INSURE THAT
THESE STATEMENTS AS PER MIRANDA AS PER RAIN RIGHT AS PER DOYLE DO NOT COME IN
AND IF THEY COME IN, IN ORDER TO SHOW AN ENDING WHICH THIS WASN'T ABOUT SLOWING
AN ENDING, THAT EVEN IF THEY COME IN THE TRIAL COURT HAS A MND TRAY DUTY TO PROVIDE
A HIM WILL GO INSTRUCTION THAT THE FIFTH AMENDMENT INVOKESS CANNOT BE USED
AS EF OF GUILT WHICH IS ESSENTIAL BECAUSE OF THE STATEMENTS ARE BEING ADMITTED
AS EF AND ABSENT THAT TYPE OF INSTRUCTION THE POTENTIAL FOR AN UNJUST RESULT
FROM THE JURY USING THE STATEMENTS WHERE THE DEFRT IS INVOKING HIS FIFTH AMENDMENT
RIGHT AND SEEKING THE PROTECTION OF THE CONSTITUTIONAL SUBSTITUTION CAN BE
USED AS EF OF GUILT SO ABSOLUTELY THERE IS A MANDATORY DUT DEE TO PROVIDE A LIMTH
ING INSTRUCTION HERE THIS IS PLAIN ERROR IT'S VOE VOICE IBL UNDER THE MRANL
ERROR STARD REGARDLESS ADMISSIBILITY AND IT'S ESSENTIAL AN INSTRUCTION BE GIVEN
I WOULD EM IF A SIELS EVEN DECIDE DON'T FLI STWRUKS COULD HAVE CURED THE
ERROR. JUSTICE ALBIN: YOU KEEP ON I DON'T KNOW WHAT A LIMITING
INSTRUCTION KRO DO BUT HAD THE JUDGE AT THE TIME OF THE MOTION TO SUPPRESS ASKED
THE SIMPLE QUESTION IT COULD HAVE BEEN OBVIOUS WHEN YOU ARE LOOKING AT A
TRANSCRIPT AND THE DEFENDANT IS REPEATEDLY SAYING, I WANT MY ATTORNEY AND THE COLLOQUY
CONTINUES, THAT UNDER THOSE CIRCUMSTANCES THE JUDGE WOULD HAVE AN INTD EVENT
OBLIGATION TO AT LEAST SAY CAN ANYTHING KONL IN AFTER THAT? DANIEL
S. ROCKOFF: CORRECT. I DON'T SO UNG THE COURT IN A HAD AN INTEREST EVENT OBLIGATION
TO BAR THIS EF FROM COMING IN IN FRONTS OF THE JURY HAD AN IJTD EVENT GAIT
KEENG OBLIGATION TO MAKE SURE THE JURY WAS PROPERLY STRUKDZ NOT ON OF THAT WAS
DONE EVEN HAD IT THAN DONE I THINK THAT THERE IS A DECENT ARGUMENT THAT
IT WOULD STILL HAVE BEEN CAPABLE EVER CAUSING AN UNJUST RESULTS AND NO INSTRUCTION
COULD HAVE CURED THE ERROR HERE. CHIEF JUSTICE RABNER: WAS
THE TAPE PLAYED AT THE SU PRELGS HEARING WAS THE TRANSCRIPT REVIEWED IN ITS
ENTIRETY BEFORE THE COURT BEFORE THE SU FREGS HEARING. DANIEL S.
ROCKOFF: THE I CAN'T RECALL IF AT THE SUPPRESSION HEARING THE STATEMENT WAS PLAYED
BUT IT WAS CERTAINLY PRESENTED AS I BELIEVE IT WAS PRESENTED AS EF TO THE
COURT. CHIEF JUSTICE RABNER: WAS THIS THE DEBATE ABOUT THE
LAST SEVERAL PAJS, FOCUSED ON SPIFL IN THE SUPPRESS HEARING. DANIEL
S. ROCKOFF: NO THE SU FREGS HEARING WAS FOCUSED ON EVERYTHING AFTER WHICH WOULD
ENCOMPASS THOSE STATEMENTS BUT NOT BE SPECIFIC TO THEM IT WAS FOCUSED ON
FRPG AFTER THE WAIVER BEING GIVEN WHETHER ANYTHING BASICALLY E SENGSZLY WHETHER
ANY OF THE DEFENDANT'S STATEMENTS COULD COME IN. CHIEF JUSTICE
RABNER: RIGHT SO WAS THERE A SPECIFIC FOCUS ON PAGES 49, 50 AND 51 OF THE DOCUMENT
I AM LOOKING AT DEE A 77 FORWARD. DANIEL S. ROCKOFF: NO THERE
WASN'T A SPIRNG FOCUS BUT AGAIN IT IS REPLY POOGS BECAUSE THE DEFENDANT
IS ASKING IS A REMEDY FORTS ENTIRE STIEMENT TO BE VU PRESS THE THAT IS PART OF THE
DEFENSE KOUNS OH AT LEAST PRELIMINARY POSITION. CHIEF JUSTICE
RABNER: ISN'T YOUR STRONGEST ARGUMENT THE JUDGE SHOULD HAVE STEPPED IN ONCE HE
HEARD THIS AT TRIAL. DANIEL S. ROCKOFF: YES.
CHIEF JUSTICE RABNER: OR. DANIEL S. ROCKOFF: YES.
CHIEF JUSTICE RABNER: YOU ARE NOT HOLDING THE JUDGE RESPONSIBLE FOR PARTS OF A
VERY LENGTHY STATEMENT THAT COUNSEL HAVE NOT HIGHLIGHTED OR ARE YOU.
DANIEL S. ROCKOFF: I WOULD AGREE WITH YOU THAT AT A MINIMUM ONCE THE COURT HEARD
THIS AT TRIAL THE TRIAL COURT HAD AN ABSOLUTE DUTY TO PROVIDE A HIMING
INSTRUCTION HERE AND THAT WASN'T GIVEN. CHIEF JUSTICE RABNER:
DANIEL S. ROCKOFF: SO FOURTH I WOULD JUST HIGHLIGHT THAT IN THE ABLS EVENTS
THAT THE ERROR HERE WAS NOT HARM LESS IN LIGHT OF THE CIRCUMSTANCES OF THIS
CASE ESSENTIALLY THE TOTAL ABSENCE OF DIRECT EF. SO THERE IS NO DIRECT PROOF THAT
CLARK HAD ANY CONTACT WITH THE DECEDENT NO DIRECT PROOF FOR 3 HOURS BEFORE THE
DEE SEED EVEN WAS SLT DOING HEROIN. NO I WITNESSES SAW THE SHOOTING PERIOD. NO
I WITNESSES TESTIFIED HE WAS AT THE CRIME SCENE DRELG. THE I WITNESSES WERE NOT
NAM WITH WHOMEVER THEY SAW ON AT LEAST ONE OF I WITNESSES EXPRESSED THE OPINION
THAT THE FOIN # TRAITER WAS DEFINITELY NOT BLACK. THERE WAS NO TESTIMONY IN EF
ABOUT WHETHER OR NOT INVESTIGATORS ASKED I WITNESSES FOR VIEWS ON CLARK
THERE IS NO VIDEO OF CLARK AT THE CRIME SCENE. THERE IT IS NO CONFESSION THE P
ERPETRATOR WAS NOT APPREHENDED FLEEING THE SCENE LEAVING NO DOULT AS TO HIGS
IDENTITY THERE IS NO MURDER WEAPON NOT EVEN PROOF THAT CLARK EVEN TOUCHED A WEAPON
IN HIS LIFE NO DIRECT PROOF THAT CLARK ANLD DEED EVENT WERE FIGHTING THAT DAY
IN T FWAKT THERE WAS SOME TESTIMONY THAT THEY APPEAR TOSH FRIENDLY AND NORMAL NO
DIRECT PROOF THAT CLARK HAD A MOMENT OF SOMETHING IN HIS PERSONAL AND THE
MOBILE DATE I AN PROVIDED NOIT CARE KRER WHEREAS CONSISTENT WITH IT HIM BEEK IN A
N AREA OF SEVERAL SCARE NIELS NO DIRECT FROOF THAT THE CAR WENT RIGHT TO THE
CRIME SCENE THERE WAS AMPLE OPPORTUNITY FOR CLARK TO GO A SEPARATE WAY LIKEWISE
THE STATE CAN'T EVEN SHOW WHETHER OR NOT A SUSPECT WAS SEEN BEFORE CLARK WAS
ALREADY BACK AT HIS RESIDENCE. SO THE POINT IS THIS IS I WOULD SAY A FAIRLY WEAK
SET OF PROOFS WITH MUCH MISSING EF. IN THAT CONTEXT THE IMPROPER ADMISSION OF
THE FIFTH AMENDMENT EF IN THE SOMETHING OF THIS CASE AND THE TOTAL LACK OF
OF A LIMITING INSTRUCTION WAS CLEERL CAPABLE EVER CAUSING AN UNJUST RESULT I WOULD
CLOSE BY JUST REMINDING YOU OF THE KUCHL LATE I HAVE ERROR SO ALL 3 APPELLATE
DIVISION JUDGES GREED THAT THE COURT FAILED TO INSTRUCT THE JURY ON THE STATE'S
SEPARATE BURDEN TO PROVE THE PERPETRATORS IDENTITY BY SUFFICIENT RELIABLE
EF BEYOND A REASONABLE #2K0U8. CHIEF JUSTICE RABNER: QUEER HERE ON
OF THE FIFTH MENL DAY YOU ARE TAKING US BACK TO THE FIRST. DANIEL
S. ROCKOFF: I HAVE ONE MORE SOVEREIGN I EVEN THOUGH THE STATE ^ CON ^ CONNECTICUT
SIDE THE THE COURT ERRED IN FAILING TO PROVIDE INSTRUCTION IT WASN'T THE
DEFENDANT'S BURDEN TO DIFFICULTIES SFROFR THAT HE WAS THE PERPETRATOR TRARTER
BY OFFICIAL THE EVERY SO THIS INSTRUCTION KUNL LA TIFRLY WOULD HAVE HELPED
COUNTER THE PRURGS' BURDEN SHIFTING IN SUMMATION I WILL LEAVE IT AT THAT FOR ALL
OF THESE ROENS THE COURT SHOULD AFFIRM THE APPELLATE DIVISIONS DECISION
TO REMAND FOR A NEW TRIAL. CHIEF JUSTICE RABNER: THANK YOU.
DANIEL S. ROCKOFF: THANK YOU. CHIEF JUSTICE RABNER: MR.
FLIEGSCIRCUMSTANCES SURROUNDING THE AND THE PROSECUTORS. DEFENDANT NEVER MOVED TO
SUPPRESS THIS PART OF THE STATEMENT ON GROUNDS THAT HE INVOKED HIS RIGHT TO COUNSEL.
INSTEAD, DEFENDANT ONLY MOVED TO SUPPRESS ON THE VERY LIMITED GROUND THAT HIS MIRANDA WAIVER
WAS NOT KNOWING. THEN AFTER THE TRIAL COURT PROPERLY DENIED THE SUPPRESSION MOTION,
DEFENDANT CHOSE NOT TO RE-QUEST A REDACTION OF THIS PART OF THE STATEMENT WHEN HE PROVIDE
D MANY OTHER PROPOSED REDACTIONS. AND FINALLY HE NEVER OBJECTED TO THE JURY HEARING THIS
PORTION OF THE STATEMENT WHEN THE REDACTED STATEMENT WAS PLAYED AT TRIAL. INSTEAD, AT
TRIAL, IN CASE THE JURY DID NOT HEAR THE CALL MY LAWYER EXCHANGE, ON CROSS-EXAMINATION
HIGHLIGHTED THE LANGUAGE DEFENDANT NOW TAKES ISSUE WITH. DEFENDANT EXPLICITLY USED THIS
PART OF THE STATEMENT TO HIS ADVANTAGE TO EMPHASIZE TO THE JURY THAT DESPITE HIM SAYING
A NUMBER OF TIMES, CHARGE ME, CHARGE ME WITH THIS, CALL MY LAWYER, CHARGE ME. HE DID NOT
CONFESS AND HE WAS NOT CHARGED THAT DAY WITH THE MURDER. NEN IN SUMMATION DEFENDANT AGAIN
RE-MINDED THE JURY OF THE PORTION OF THE STATEMENT HE NOW TAKES ISSUE WITH, RE-MINDING
THE JURY THAT HE HAD REPEATED TO POLICE IF THEY THOUGHT HE HAD KILLED THE VICTIM, THEY
SHOULD CHARGE HIM RIGHT THEN ON THE SPOT. SO DEFENDANT USED THIS PORTION TO ADVANCE HIS
THEORY OF THE CASE AND CHOSE NOT TO REQUEST A CURATIVE INSTRUCTION. MOREOVER,
THE PROSECUTOR NEVER COMMENTED ON THE DEFENDANT'S RIGHT TO SILENCE OR RIGHT TO COUNSEL
IN SUMMATION. INSTEAD, THE SUMMATION WITHOUT OBJECTION WHICH WE PRESUME MEANS DEFENSE
COUNSEL DID NOT BELIEVE THE RE-MARKS WERE PREJUDICIAL, WAS FAIR COMMENT ON A PURPORTED
ALIBI THAT DEFENDANT HIMSELF PRESENTED. WHILE IT IS CERTAINLY TRUE THAT TRIAL COURTS
SHOULD ENDEAVOR TO EXCISE IN-VOCATIONS PLAYED BEFORE THE JURY, DEFENDANTS ARE ENTITLED TO
A FAIR TRIAL, NOT A PEFR ONE. EVALUATED UNDER THE CIRCUMSTANCES AS THEY UN-FOLD.
ON THIS RECORD, THERE IS NO SUPPORT FOR REVERSIBLE ERROR AND WE ASK THIS COURT TO
REVERSE THIS DECISION OF THE APPELLATE DIVISION AND REINSTATE DEFENDANT'S WELL PROVED
CONVICTIONS. CHIEF JUSTICE RABNER: ARE YOU DONE WITH YOUR OPENING STATEMENT?
VALERIA DOMINGUEZ: YES, I AM. CHIEF JUSTICE RABNER: WAS IT
ERROR FOR THE JURY TO HEAR THE DEFENDANT INVOKE HIS DESIRE FOR COUNSEL MULTIPLE TIMES?
VALERIA DOMINGUEZ: WELL, I CERTAINLY AGREE THAT GENERALLY IN-VOCATIONS
SHOULD NOT COME IN. IN THIS CASE WE HAVE TWO SITUATIONS. FIRST WE KNOW ON THIS RECORD
IT APPEARED THAT IT WAS TRIAL STRATEGY FOR DEFENDANT TO GET THIS PORTION IN. IT WAS --
HE WAS ABLE TO GET HIS ALIBI -- CHIEF JUSTICE RABNER: WAS IT ERROR -- DOES
OUR LAW PERMIT THE STATE TO PRESENT EVIDENCE THAT THE DEFENDANT HAS INVOKED COUNSEL AND
THEN COME BACK AT THE DEFENDANT AND ATTEMPT TO GET THE DEFENDANT FO CONFESS AFTER HAVING
INVOKED AND DO SO IN APPOINTED FASHION AS OCCURRED HERE? DOES THE LAW PERMIT THAT?
STAY AWAY FROM STRATEGY. VALERIA DOMINGUEZ: GENERALLY, NO. VOCATIONS SHOULD
BE EXCISED FROM STATEMENTS. BUT -- CHIEF JUSTICE RABNER: YOU USED THAT HEDGE
WORD GENERALLY. WAS IT ERROR IN THIS CASE? VALERIA DOMINGUEZ: NOT TO THE
EXTENT OF PLAIN ERROR. SO EVERY CASE THAT HAS ADDRESSED THIS ISSUE WITH IN-VOCATIONS
BEING PRESENTED EITHER THROUGH DIRECT TESTIMONY OF THE INTERROGATING OFFICER OR A PROSECUTOR
REFERRING TO AN IN-VOCATION IN SUMMATION HAS ANALYZED THE ISSUE UNDER THE PLAIN ERROR
STANDARD. IN THIS CASE, TO THE EXTENT THAT THE TRIAL COURT SHOULD HAVE EXCISED, DESPITE
DEFENSE COUNSEL's TRIAL STRATEGY WANTING THIS PORTION IN, IT DOESN'T RISE TO PLAIN ERROR
IN THIS CASE FOR A FEW REASONS. FIRST, THE EXCHANGE WAS BRIEF. AND IT
ULTIMATELY ENDED THE INTERVIEW. AND IN THE KAEKS OF THE EXCHANGE IN THIS CASE IS VERY
IMPORTANT. WE DO HAVE THE RECORDING. WE DO KNOW DEFENDANT'S TONE. AND WE KNOW THE WORDS
THAT HE CHOSE. AND IN THIS CASE WE KNOW THE DETECTIVE AT THE VERY END OF THE STATEMENT
AFTER HE ASKED THE DEFENDANT WHERE HE WAS, WHO HE WAS WITH, WHAT HE WAS DOING, THE DETECTIVE
SAYS, IT'S GAME OVER, WE'VE SEEN THE VIDEOS, WE'VE TALKED TO WITNESSES. DEFENDANT THEN
IN RESPONSE SAYS IF IT'S GAME OVER, CHARGE ME. HIS TONE IS DEFENSIVE. IT'S CONFIDENT.
HE SAID -- IT REPEATS A FEW TIMES. IF IT'S GAME OVER, CHARGE ME, CALL MY LAWYER, PLAIN
AND SIMPLE. SO IN THIS CASE THE HARM IS NOT THERE IN THE JURY HEARING THIS.
JUSTICE PIERRE LOUIS: WHAT ABOUT THE OFFICER'S STATEMENTS AFTER. DEFENDANT
SAYS IT'S GAME OVER, CALL MY ATTORNEY. IT'S NOT AMBIGUOUS. HE GIVES HIS ATTORNEY'S NAME.
CALL MY ATTORNEY. HE DOESN'T SAY MUCH AFTER THAT BUT TO AGAIN INVOKE HIS RIGHT TO COUNSEL,
BECAUSE THE MAJORITY OF THE CONVERSATION IS THE OFFICER SAYING, IF I WERE YOU, I WOULD
BE EXONERATING MYSELF. WE CAN RUN THAT DOWN. WE CAN RUN THAT DOWN, WE CAN RUN THAT DOWN.
SO THAT'S PART OF THE HARM. THE JURY HEARING THE OFFICER INFERRING HIS GUILT FROM HIS
IN-VOCATION OF HIS RIGHT TO COUNSEL. IN-VOCATION OF A RIGHT THAT HE'S TOLD FROM THE BEGINNING
YOU HAVE A RIGHT TO AN ATTORNEY, YOU HAVE A RIGHT TO STOP THIS INTERVIEW AT ANY POINT.
HE DOES BOTH. HE STOPS THE INTERVIEW BY INVOKING HIS RIGHT TO COUNSEL. THE INTERVIEW
DOESN'T STOP. THEN IT'S USED AGAINST HIM FURTHER IN SUMMATION WHERE THE PROSECUTOR REFERS
BACK TO THE OFFICER'S BEGGING HIM. CAN YOU POINT ME TO WHERE IN THE TRANSCRIPT
THE BEGGING HAPPENS, IF NOT AFTER THAT IN-VOCATION? VALERIA DOMINGUEZ:
WELL, THE BULK OF THE INTERVIEW REALLY FOCUSED ON WHAT HE WAS DOING AFTER 1:30. SINCE
THAT'S THE TIME HE'S UN-ACCOUNTED FOR. SO THE JURY DID HEAR HIM SAY HE OFFERED HIS OWN
ALIBI SAYING I WAS IN ROEBLING AND THEN THE JURY HEARD THE LONG GAPS, THE LONG PAUSES
THAT THE DEFENDANT DID NOT WANT TO SAY WHO HE WAS WITH. JUSTICE PIERRE LOUIS:
YOU DIDN'T HEAR MUCH OF THAT. A LOT OF THAT WAS RE-MOVED FROM THE VIDEO AND THE TRANSCRIPT.
VALERIA DOMINGUEZ: THAT PART WAS PLAYED. JUSTICE PIERRE LOUIS:
SOME OF IT, BUT NOT -- THERE'S A COUPLE OF PAGES THAT WAS RE-MOVED AND THEN IT RESUMES
WITH THE OFFICER SAYING, OKAY, YOU WERE IN ROEBLING WITH SOMEONE AND YOU TOOK A WALK.
VALERIA DOMINGUEZ: I DISAGREE, YOUR HONOR. LOOKING AT THE TRANSCRIPT THAT
WAS PLAYED, THERE IS A SIGNIFICANT PORTION WHERE THE JURY DID HEAR THE PAUSES, THE GAPS,
THE DEFENDANT KIND OF SUGGESTING THAT HE DIDN'T WANT TO SAY FOR WHATEVER REASON WHAT HE WAS
DOING. SO THAT WAS -- JUSTICE PIERRE LOUIS: IS THAT THE -- IS A REASONABLE
READING OF THE TRANSCRIPT AND THE VIDEO THAT'S A PORTION WHERE THE PROSECUTOR IS REFERRING
TO THE OFFICER'S BEGGING HIM BECAUSE THERE WERE PAUSES? VALERIA DOMINGUEZ:
TO THE EXTENT THAT THE PRACTICALLY BEGGING SPOKE TO THE PART WHERE DEFENDANT IS SAYING
CALL MY ATTORNEY, THAT WAS A FLEETING COMMENT. THE MAJORITY OF THE PROSECUTOR'S SUMMATION
FOCUSES ON POINTING OUT DISCREPANCIES BETWEEN THE EARLIER PART OF THE STATEMENT WELL BEFORE
DEFENDANT REFERENCED AN ATTORNEY AT ALL. AND IT'S DEFINITELY NOT SO EGREGIOUS TO HAVE
DEPRIVED DEFENDANT OF A FAIR TRIAL. WHAT WE HAVE IS DEFENDANT OFFERING AN
ALIBI AND WE HAVE THE JURY HEARING THE EVASIVE ANSWERS, THE VAGUE RESPONSES, HIM NOT WANTING
TO SAY. SO THE PROSECUTOR IN SUMMATION IS WELL WITHIN HIS RIGHT TO POINT OUT THE
DISCREPANCIES. THE JURY HEARD THAT ALIBI. AND THE PROSECUTOR IS GOING THROUGH -- I THINK
IT'S A 36 PAGE LONG SUMMATION. AND A BULK OF IT IS REALLY FOCUSED ON THE DISCREPANCIES
BETWEEN WHERE HE SAID HE WAS AND WHAT THE EVIDENCE ACTUALLY SHOWED AT TRIAL.
CHIEF JUSTICE RABNER: SO THE JURY GOT TO HEAR THE INVESTIGATOR CALL THE DEFENDANT A
LIAR, EFFECTIVELY AFTER THE DEFENDANT ASKED FOR COUNSEL. FORGET ABOUT WHAT HAPPENED WITH
DIRECT, FORGET ABOUT WHAT HAPPENED WITH CLOSING. COUNSEL SAYS THAT'S EGREGIOUS. WHAT'S
YOUR TAKE ON IT? VALERIA DOMINGUEZ: WELL, FIRST, AGAIN, I WOULD JUST POINT
OUT THAT THIS WASN'T OBJECTED TO. THERE WAS NEVER A REQUEST FOR THIS TO BE REDACTED.
AND I AM THAT'S VERY IMPORTANT IN THIS CASE. DEFENDANT HAD AN OPPORTUNITY, AN EXPLICIT
OPPORTUNITY TO REDACT CERTAIN PORTIONS OF THE STATEMENT THAT HE FOUND TO BE INADMISSIBLE
OR PREJUDICIAL. AND THIS WAS NOT ONE OF THEM. THERE WERE TWO OPPORTUNITIES. THERE WAS
THE FIRST ONE, PROVIDE A LIST OF PROPOSED REDACTIONS, AND THEN AFTER THE PAGE NUMBERS
WERE A LITTLE BIT OFF, SO STREET PROSECUTOR SPECIFICALLY WROTE OUT, HERE'S I AGREE WITH,
IS THERE ANYTHING ELSE? AND THERE WAS NO REQUEST FROM THE DEFENSE ATTORNEY TO TAKE OUT
ANY PART. AND I THINK THERE'S SUPPORT IN THE RECORD FOR WHY IT WASN'T TAKEN OUT.
JUSTICE ALBIN: I ACTUALLY WANTED TO FOLLOW UP A QUESTION. PLAIN ERROR. PLAIN OTHER
-- TELL ME IF I'M MISTAKEN ABOUT THIS. I DON'T HAVE THE RULE RIGHT IN FRONT OF ME. IS
DIRECTED TO THE COURT. AND THE CHIEF JUSTICE HAD USED THE TERM SUFFICIENTLY EGREGIOUS
ERROR. IT IS A DIRECTIVE TO THE COURT TO TAKE NOTICE OF EGREGIOUS ERRORS THAT IS APPEARING
BEFORE IT. WHETHER YOU'RE THE TRIAL COURT, THE APPELLATE DIVISION OR THE SUPREME COURT.
BUT LET'S SAY WE'RE AT THE TRIAL COURT LEVEL. AND THE CHIEF JUSTICE EARLIER HAD MENTIONED,
AT THE VERY LEAST, THE JUDGE IS LISTENING TO THE TAPE. OUR LAW SPECIFICALLY STATES THAT
WHEN YOU INVOKE THE RIGHT TO COUNSEL, EVERYTHING ENDS. WHY AT THAT POINT, DIRECTED TOWARD
-- NOW I'M SPEAKING ABOUT THE JUDGE. THE JUDGE, WHY DIDN'T THE JUDGE AT THAT POINT RECOGNIZE
IT IS PLAIN ERROR TO PROCEED. STOP. AND THEN AT LEAST ASK AT THE VERY LEAST COUNSEL,
YOU WANT THIS IN? THIS IS -- OUR LAW SAYS NOTHING ELSE COMES IN AT THIS POINT. WHY
WASN'T THAT PLAIN ERROR STRAIGHT WRAT THAT POINT. GO AHEAD. VALERIA DOMINGUEZ:
I THINK AGAIN GOING BACK, THE TONE OF DEFENDANT'S -- THAT DEFENDANT USED, HIS WORDS IN
THIS CASE, HE NEVER INCRIMINATED HIMSELF BEFORE OR AFTER. JUSTICE PIERRE LOUIS:
BUT HIS WORDS WERE SPECIFIC TO INVOKING HIS RIGHT TO COUNSEL. IT DOESN'T MATTER IF HE WAS
ANGRY, IF HE WAS CRYING, IF HE WAS UPSET. HE SAID CALL MY ATTORNEY, CALL MR. KIEZ LER.
HE GAVE A NAME. SO, AGAIN, FOLLOWING UP ON THE QUESTION JUSTICE ALBIN ASKED, WHY IS THIS
NOT ERROR FOR THE TRIAL JUDGE TO HAVE NOT STOPPED THIS AT THAT POINT KNOWING OUR CASE
LAW SAYS AFTER SOMEONE'S INVOKED, EVERYTHING AFTER SHOULD BE OUT? VALERIA
DOMINGUEZ: THIS PART OF THE STATEMENT UNDERSCORED DEFENDANT'S CONFIDENCE IN HIS INNOCENCE.
AND I THINK THAT'S WHY DEFENSE ATTORNEY WANTED THIS PART IN. HE'S SAYING, CALL MY LAWYER,
PLAIN AND SIMPLE. HE'S SAYING, IF IT'S GAME OVER, IF YOU KNOW IT'S ME, IF I COMMITTED
THIS MURDER -- AND THAT'S PART OF THE SUMMATION THAT DEFENSE COUNSEL HAD.
JUSTICE PIERRE LOUIS: WAS THERE A CONVERSATION WITH THE TRIAL COURT AND DEFENSE COUNSEL
WHERE SDAEF COUNSEL MADE THOSE REPRESENTATIONS? VALERIA DOMINGUEZ: . NO.
BUT IT'S IN THE CROSS-EXAMINATION. JUSTICE PIERRE LOUIS: WHICH IS IN RESPONSE
TO DIRECT EXAMINATION. DIDN'T DEFENSE COUNSEL ORIGINALLY WANT THE STATEMENT OUT?
VALERIA DOMINGUEZ: THE ENTIRE STATEMENT, BUT AFTER THAT MOTION WAS DENIED, AGAIN, THERE
WAS NO REQUEST FOR THIS PART DESPITE AN EXPLICIT OPPORTUNITY FOR THIS PART TO BE TAKEN
OUT. CHIEF JUSTICE RABNER: CAN WE REALLY TAKE FROM THIS RECORD THAT IT WAS
STRATEGY AND NOT A MISTAKE? AND HOW DO YOU GET THERE? VALERIA DOMINGUEZ:
I THINK THERE IS. I THINK THERE'S THREE PARTS. ONE, WE KNOW IT WASN'T REQUESTED DESPITE
OTHER POTENTIALLY PREJUDICIAL THINGS. CHIEF JUSTICE RABNER: WHICH COULD BE
EITHER P COULD BE A MISTAKE. VALERIA DOMINGUEZ: BE TAKEN OUT. THEN WE
HAVE THE CROSS-EXAMINATION. THE LAST LEADING QUESTION SPECIFICALLY REFERS TO THIS PART
OF THE STATEMENT. RE-MINDS THE JURY THAT HE SAID, CALL MY LAWYER. THAT'S SPECIFIC.
UN-LIKE DIRECT EXAMINATION WHERE THERE'S NO SPECIFIC DIRECT QUESTION REFERENCING
DEFENDANT'S IN-VOCATION. SO THAT COMES OUT ON CROSS-EXAMINATION. AND THAT'S THE LAST
LEADING QUESTION. AND IN FACT DEFENSE COUNSEL THEN SAYS, WITH THIS, I HAVE NO FURTHER
QUESTIONS. THAT'S THE LAST QUESTION BEFORE. JUSTICE ALBIN: ONCE IT COMES
IN, THE DEFENSE ATTORNEY AT LEAST HAS TO NEUTRAL LIES THE DAMAGE THAT'S BEING DONE TO
HIS CLIENT. I MEAN -- SO YOU'RE EQUATING THE DEFENSE ATTORNEY'S TRYING TO, YOU KNOW,
STEM THE STAUNCHING OF THE BLEEDING HERE WITH DEFENDANT PURPOSELY TRYING TO CUT THIS THING
OPEN. THERE'S A DIFFERENCE BETWEEN THE TWO, NO? VALERIA DOMINGUEZ: THERE IS.
BUT IN THIS CASE, IT'S NOT JUST AN ATTEMPT TO NEUTRALIZE. IT'S AN AFFIRMATIVE USE OF
THIS PART. AFTER THE CROSS-EXAMINATION, IN THE SUMMATION, AGAIN, THERE'S A REMINDER OF
THIS PART OF THE LANGUAGE THAT HE NOW TAKES ISSUE WITH. RE-MINDING THE JURY THAT HE REPEATED
TO POLICE, IF THEY THOUGHT HE HAD KILLED THE VICTIM, THEY SHOULD CHARGE HIM RIGHT ON THE
SPOT. THIS ISN'T JUST AN ATTEMPT TO REDUCE THE INFORMATION REDACT THIS PART BECAUSE THEY'RE
GOING TO USE IT AT TRIAL. CHIEF JUSTICE RABNER: CAN YOU TELL US WHETHER
THIS WAS INVITED ERROR AND IF SO HOW? VALERIA DOMINGUEZ: I THINK THE THREE
PARTS THAT I HAD LISTED OUT, THE E-MAIL EXCHANGE, THE USE OF THIS IN CROSS-EXAMINATION,
HIGHLIGHTING THIS PARTICULAR LANGUAGE, AND THEN USING IT IN SUMMATION WAS A USE -- WAS
THE AFFIRMATIVE USE BY DEFENSE COUNSEL TO USE THIS PART OF THE STATEMENT TO HIS ADD VAGINA.
AGAIN, THE NO OBJECTION TO THE PROSECUTOR'S SUMMATION, TO THE RELEVANT SECTIONS OF THE
PROSECUTOR'S SUMMATION AND THEN THE REQUEST FOR A CURATIVE INSTRUCTION. AND
WE DO HAVE -- UN-LIKE IN (CASE CITED) AND A FEW OF THE CASES DEFENDANT CITES, IN MANY
OF THOSE CASES, DEFENDANT INVOKES HIS RIGHT TO SILENCE IMMEDIATELY. WHEREAS IN THIS CASE
THE DEFENDANT WAIVED HIS RIGHT TO SILENCE AND DID SPEAK WITH THE OFFICERS FOR UP TO AN
HOUR. IN MANY PARTS HE DID PROVIDE EVASIVE ANSWERS. HE DIDN'T WANT TO SAY WHO HE WAS
WITH, BUT HE NEVER INVOKED DURING THOSE PARTS OF THE STATEMENT UNTIL THE VERY END.
AND I WOULD NOTE THAT ALSO IN -- EVEN IN (CASE CITED), THERE'S A DIRECT
SOLICITATION BY THE PROSECUTOR TO THE IN-VOCATION AND THERE'S NO KAEKS FOR THAT. WHEREAS
HERE WE HAVE THE STATEMENTS BEING PLAYED AND THE JURY KNOWS THE EXCHANGE. THE TONE USED.
EVEN IN THOSE CASES THAT ARE VERY DIFFERENT FACT ACTUALLY THAN WE HAD IN THIS TRIAL,
ULTIMATELY THE COURT TOOK A PLAIN ERROR ANALYSIS. AND IT'S OUR POSITION THAT IN THIS CASE,
TO THE EXTENT THAT THE TRIAL COURT SHOULD HAVE EXCISED THIS PORTION REGARDLESS OF DEFENSE
COUNSEL's STRATEGY, DEFENDANT'S STRATEGY, IT CERTAINLY DID NOT LEAD TO AN UN-JUST RESULT.
JUSTICE ALBIN: DO YOU AT LEAST CONCEDE THAT THE PROSECUTOR WAS ABLE TO
EXPLOIT THE QUESTIONING THAT OCCURRED AFTER THE IN-VOCATION OF THE RIGHT TO REMAIN SILENT?
THE POLICE OFFICERS REPEATEDLY SAYING WHO IS IT. AND THEN IN SUMMATION TELLING THE JURY,
WHERE IS THIS PERSON? YOU KNOW, HE WAS ASKED TO GIVE THE PERSON UP. WHERE IS HE? AND
THAT IN PART SHIFTS -- SORT OF SHIFTS THE BURDEN TO THE DEFENDANT, WHO HAS NO OBLIGATION
TO PRESENT ANY EVIDENCE. VALERIA DOMINGUEZ: TWO RESPONSES, YOUR HONOR.
AGAIN, WE DO HAVE A -- THE MAJORITY OF THE STATEMENT BEING FOCUSED ON WHAT'S HAPPENING
AFTER 1:30. SO WE KNOW THAT EVEN HAD THIS SECTION BE EXCISED, THE PROSECUTOR COULD
STILL HAVE CERTAINLY ADDRESSED THE DISCREPANCIES BETWEEN WHAT DEFENDANT SAID AND WHAT THE
EVIDENCE ACTUALLY SHOWED. AND SIMILAR TO (CASE CITED), THE JURY WAS INSTRUCTED HERE THAT
IT'S THE STATE'S BURDEN TO PROVE BEYOND A REASONABLE DOUBT THAT THAT BURDEN NEVER
SHIFTS TO DEFENDANT. THIS COURT IN (CASE CITED) RECOGNIZED THAT'S NOT DIRECTLY ON POINT.
IT CERTAINLY DOES HELP THE JURY -- LIKE RE-MIND THE JURY THAT THE BURDEN IS NEVER ON
DEFENDANT. AND IT REMAINS WITH THE STATE. CHIEF JUSTICE RABNER: GOING BACK
TO INVITED ERROR FOR A MOMENT. MR. ROCKOFF WAS NOT AWARE OF ANY INDICATION TO THE JUDGE
THAT THE PARTIES HAD SETTLED ON WHAT WAS TO BE PLAYED TO THE JURY. VALERIA
DOMINGUEZ: YES. SO THERE'S NOTHING IN THE RECORD EXPLICITLY SAYING THAT BOTH PARTIES
AGREED, BUT WE DO KNOW THAT THERE IS NO MOTION, THAT THERE WAS NO REQUEST FOR REDACTION
ON THE RECORD, AND THAT THERE'S NO OBJECTION TO THE STATEMENT HAVING BEEN PLAYED.
CHIEF JUSTICE RABNER: YES. BUT YOUR INVITED ERROR ARGUMENT WOULD BE STRONGER IF DEFENSE
COUNSEL HAD SAID, JUDGE, WE LOST OUR MOTION. WE WANT EVERYTHING HERE TO GO IN. THERE'S
NONE OF THAT TO BE FOUND HERE. IS THAT FAIR? VALERIA DOMINGUEZ: NOT ON
THE RECORD. NOT THAT I'M AWARE OF. JUSTICE ALBIN: IS THERE ANYTHING IN
THE RECORD TO KATE THAT THE JUDGE REVIEWED THE STATEMENT BEFORE THE TRIAL? EITHER BECAUSE
IT WAS PLAYED AT A 104 HEARING OR HE WAS GIVEN THE STATEMENT AND READ IT IN ITS ENTIRETY.
ANYTHING IN THE RECORD? VALERIA DOMINGUEZ: YES. IT WAS DEFINITELY PROVIDED
IN THE MOTION TO SUPPRESS. BUT AGAIN THAT WAS FOCUSED ON THE MIRANDA WAIVER.
JUSTICE ALBIN: I UNDERSTAND. VALERIA DOMINGUEZ: JUST BRIEFLY, IN RESPONSE
TO DEFENDANT'S ARGUMENT -- CHIEF JUSTICE RABNER: YOU'RE NOT SUGGESTING
THAT BECAUSE THE 54 PAGE EXHIBIT WAS GIVEN FO THE JUDGE THAT THE JUDGE HAD THE OBLIGATION
TO GO THROUGH IT IN ITS ENTIRETY INCLUDING THE PARTS THE PARTIES DIDN'T ARGUE?
VALERIA DOMINGUEZ: ABSOLUTELY NOT. IT WAS JUST FOCUSED ON THE WAIVER OF HIS MIRANDA RIGHTS
AS NOT BEING KNOWING. CHIEF JUSTICE RABNER: MR. ROCKOFF ACCEPTED THE ARGUMENT
THE JUDGE SHOULD HAVE STEPPED IN AT THAT MOMENT. AT THE MOMENT OF TRIAL. VALERIA
DOMINGUEZ: AGAIN, I WOULD NOTE THAT TO THE EXTENT THAT THE TRIAL COULD -- FIRST WE HAVE
NO OBJECTION. WE HAVE DEFENSE COUNSEL USING THAT PART OF THE STATEMENT IN CROSS-EXAMINATION,
THE VERY LAST QUESTION. CHIEF JUSTICE RABNER: THIS HAS NOW BEEN PRESENTED
TO THE JURY. THE JUDGE HEARS THE DEFENDANT INVOKE SEVERAL TIMES AND THEN CONTINUE TO BE
QUESTIONED AND CHALLENGED BY COUNSEL. BY THE DETECTIVE. WHAT SHOULD THE JUDGE HAVE DONE
AT THAT POINT. VALERIA DOMINGUEZ: AGAIN, I THINK -- AGAIN, REITERATING
THIS EARLIER ARGUMENT, I THINK THE KAEKS MATTERS. I THINK THE FACT THAT DEFENDANT NEVER
INCRIMINATED HIMSELF. HE MAINTAINED HIS INNOCENCE AND HE UNDERSCORED HIS INNOCENCE BY
THE WORDS THAT HE USED. CALLING THE DETECTIVE ON HIS BLUFF. SAYING, IF IT'S GAME OVER,
IF YOU KNOW IT'S ME, CHARGE ME. AND THAT'S -- IN AND OF ITSELF, THE WAY THIS PART OF THE
STATEMENT PLAYED OUT IS NOT INHERENTLY PREJUDICIAL. IT'S NOT -- HE UNDERSCORES HIS
CONFIDENCE IN HIS INNOCENCE. HE'S NOT CHARGED THAT DAY. THE JURY LEARNS THAT. THAT HE WAS
NOT CHARGED THAT DAY. JUSTICE ALBIN: DO YOU THINK THAT THE JUDGE -- I'M
NOT GOING TO TAKE AWAY FROM THE REST OF YOUR ARGUMENT -- SHOULD HAVE STOPPED AFTER HE
HEARD THE THIRD TIME -- THOSE ARE LIKE FIRE BELLS GOING OFF IN THE MIND OF A JURIST AND
DEFENDANT IS INVOKING THREE TIMES. AND FOUND OUT WHETHER OR NOT COUNSEL WANTED TO PROCEED
WITH THE REMAINDER OF THAT INTERROGATION GOING IN? DID HE HAVE AN OBLIGATION UNDER --
AND THIS GOES TO THE WHOLE PLAIN ERROR, MEANING WHETHER OR NOT THE TRIAL COURT SHOULD BE
TAKING NOTICE OF WHAT'S HAPPENING BEFORE HIM OR HER. GO AHEAD. VALERIA
DOMINGUEZ: AGAIN, WE KNOW THAT THERE IS NO MOTION TO SUPPRESS THAT PART OF THE STATEMENT.
THAT DEFENSE COUNSEL DIDN'T FILE TO SUPPRESS THE MOTION BECAUSE HE INVOKED HIS RIGHTS.
AND SO WE HAVE THE STATEMENT BEING PLAYED IN TRIAL. AS THE CIRCUMSTANCES ARE UN-FOLDING.
AND THEN WE HAVE ULTIMATELY DEFENSE COUNSEL USING THAT ON CROSS-EXAMINATION.
JUSTICE ALBIN: THE NATURE OF ALL PLAIN ERROR IS THAT THERE IS NO OBJECTION. THAT REASONING
WOULD SAY THAT, JUDGE, WE NEVER INTERVENED. THERE MUST BE SOME GOOD REASON FOR THIS.
AND YET WE HAVE THIS RULE. VALERIA DOMINGUEZ: YES. I KNOW. I UNDERSTAND.
AND THEN TO THE EXTENT THAT THE JUDGE SHOULD HAVE EXCISED REGARDLESS OF WHAT DEFENDANT
WANTED, AGAIN, IT'S NOT AUTOMATICALLY REVERSIBLE ERROR AND IT'S OUR POSITION THAT IT DIDN'T
LEAD TO AN UN-JUST RESULT. BUT I THINK IT'S IMPORTANT TO LOOK AT THE KAEKS OF THIS.
IF THIS WAS SO PREJUDICIAL AND SO HARMFUL TO DEFENDANT, WHY WOULDN'T HIS ATTORNEY MOVE
TO SUPPRESS THIS PART OF THE STATEMENT OR HIGHLIGHT THIS PART OF THE STATEMENT OR TO
REDACT IT. AND NONE OF THAT HAPPENED IN THIS CASE. I THINK THAT REALLY HIGHLIGHTS AND
UNDERSCORES THAT THE WORDS USED, THE EXCHANGE, HOW IT PLAYED OUT, IT WASN'T HARMFUL.
IT'S NOT PREJUDICIAL CONSIDERING THE KAEKS, THE TONE, WHAT THE JURY HEARD IN THIS STATEMENT.
CHIEF JUSTICE RABNER: ANYTHING ELSE YOU'D LIKE TO ADD? VALERIA
DOMINGUEZ: NO, YOUR HONOR. I WOULD JUST ASK THIS COURT TO REVERSE THE JUDGMENT OF THE
APPELLATE DIVISION AND REINSTATE DEFENDANT's CONVICTIONS. CHIEF JUSTICE
RABNER: THANK YOU. MR. ROCKOFF? DANIEL S. ROCKOFF: VERY BRIEF.
SO FIRST OF ALL, MY ADVERSARY KEPT SAYING THAT, YOU KNOW, THIS IS FLEETING OR ISOLATED
OR BRIEF. THIS ISN'T FLEETING. SO LIKE JUST LOOK AT A CONTRAST OF WHAT HAPPENED IN
FEASTER WHERE THE COURT DID CALL THIS FLEEDING. IN FEASTER WHAT HAPPENED WAS AN OFFICER
GETS ON THE STAND AND SAYS I MIRANDIZED HIM AND HE INVOKED HIS RIGHTS, END OF THE STATEMENT.
THAT'S IT. THAT'S WHAT FLEETING MEANS. HERE WE'VE GOT ON VIDEO THREE TIMES
THE DEFENDANT IS INVOKING HIS RIGHTS. ALL THE INFERENCES FROM THE OFFICER INSINUATING
THAT HAVING JUST INVOKED, THIS IS, QUOTE, BULLSHIT, THAT IF I WERE IN YOUR SHOES OR IF
I WERE IN YOUR SEAT, I WOULDN'T BE RESPONDING IN THAT WAY. SHOWING GUILT. THE PROSECUTOR'S
COMMENTS ON THIS. THE FACT THAT IT WAS REPEATED AGAIN IN DELIBERATIONS. AND THE FACT
THAT THE JURY HAD TRANSCRIPTS IN FRONT OF THEM AS THEY WERE WATCHING THE VIDEO. ALL OF
THAT IN COMBIENGS COMBINE TO MAKE THIS VERY UN-LIKE FEASTER IN THE SENSE IT'S NOT
FLEETING, BRIEF, ISOLATED. THIS WAS FROM START TO FINISH A PART OF THE STATE'S CASE.
I WOULD ALSO POINT OUT, IN TERMS OF IT BEING REVERSIBLE UNDER THE PLAIN ERRORS
STANDARDS, THE CASES (CASE CITED) ALL RE-VERSED ON PLAIN ERROR, EVEN IN CASES WHERE THE
PROSECUTOR SAYS NOTHING IN SUMMATION. SO IN TUNG, IT WAS THE CENTERPIECE OF THE STATE'S
ARGUMENT THAT THE PROSECUTOR SAID NOTHING IN SUMMATION AND THEREFORE IT'S HARMLESS. THE
APPELLATE DIVISION DISAGREED THAT IT CAN BE CLEARLY CAPABLE OF AN UN-JUST RESULT JUST
FROM THE PROSECUTOR SHOWING A VIDEO LIKE THIS TO THE JURY WHERE THE DETECTIVE ON VIDEO
IS MAKING THESE TYPES OF INSINUATIONS. IN TUNG IT WAS VERY SIMILAR. IT WAS THINGS LIKE
WHY ARE YOU ASKING FOR A LAWYER. SIMILAR TO THE COMMENTS HERE ABOUT THIS ISN'T WHAT I WOULD
BE DOING IF I WERE IN YOUR SEAT. SO IT CAN BE PLAIN ERROR -- OUR STATE'S PRECEDENCE SHOW
IT CAN BE PLAIN ERROR EVEN WHEN THE PROSECUTOR SAYS NOTHING. HERE I'LL ALSO
POINT OUT THAT THE INSINUATIONS -- SO THE -- MY ADVERSARIES MADE A DISTINCTION BETWEEN
A CASE LIKE THIS AND A CASE WHERE THE DEFENDANT INVOKES IMMEDIATELY. IN A CASE WHERE
THE DEFENDANT INVOKES IMMEDIATELY, NONE OF THE INSINUATIONS COME IN LIKE THEY CAME IN
IN THIS CASE. YOU HAVE A RHETORICAL THOUSAND WORDS HERE. WE KNOW HOW JURORS RE-ACT TO
VIDEOS. AS THIS COURT HAS EXPLAINED, THE POWER OF A VIDEO CAN'T BE DISPUTED. THE PREJUDICE
OF SEEING THIS TYPE OF PRESENTATION, NOT JUST IN-VOCATION FRS THE DEFENDANT'S MOUTH
DIRECTLY BUT ALL THE INTERROGATORS RESPONSE TO THAT IS SOMETHING WE DIDN'T SEE IN THE PAST
AND THE METHOD -- THE CHANGE IN THE METHOD OF PRESENTATION HAS GREATLY INCREASED THE
PREJUDICE. FINALLY, I WOULD JUST CLOSE BY SAYING, THE PROSECUTOR POINTED TO
LIKE THE VERY GENERAL INSTRUCTION ON REASONABLE DOUBT AND THE RIGHT NOT TO TESTIFY. THOSE
INSTRUCTIONS AREN'T ENOUGH. THEY'RE NOT ON POINT. AN INSTRUCTION OF THE RIGHT NOT TO
TESTIFY IS JUST IN-ADEQUATE TO DEAL WITH THE HARM THAT WAS CAUSED HERE. THIS WAS AN ADDITIONAL
HARM. IT'S NOT JUST THE DEFENDANT NOT TESTIFYING AT TRIAL. HE MADE STATEMENTS THAT WERE
ADMITTED INTO EVIDENCE AS EVIDENCE OF GUILT THAT CANNOT CONSTITUTIONALLY BE USED AS EVIDENCE
OF GUILT. THE COURT HAS A GATEKEEPING DUTY REGARDLESS OF ADMISSIBILITY TO INSTRUCT THE
JURY THAT THESE STATEMENTS COULD NOT BE TREATED AS EVIDENCE OF GUILT. ESPECIALLY AFTER
THE PROSECUTOR IS MAKING STATEMENTS IN SUMMATION LIKE ASK YOURSELF WHY. FOR
ALL THOSE REASONS, I WOULD REQUEST THAT YOU AFFIRM THE JUDGMENT OF THE APPELLATE DIVISION
REMANDING FOR A NEW TRIAL. THANK YOU. CHIEF JUSTICE RABNER:
THANK YOU, COUNSEL. WE'LL TAKE THE MATTER UNDER ADVISEMENT.