HAVE AP PEERPS OF COUNSEL. ALISON GIFFORD: ALISON GIFFORD ASSISTANT
DEPUTY PUBLIC DEFENDER FOR MR. WILLIAMS. ALEXANDER SHALOM:
ALEXANDER SIFL FROM THE AMERICAN CIVIL LIBERTIES UNION AS A FRENT OF COURT.
JASON MAGID: WILL DEPARTMENT ACT RG ASSISTANT PROSECUTOR
FOR CAMDEN COUNTY ON BEHALF OF THE STATE. JASON MAGID. CAROL
M. HENDERSON: CAROL HEN DOOR SON DEPARTMENT ATTORNEY JEN AMICUS CURIAE ON
BEHALF OF ATTORNEY GENERAL. CHIEF JUSTICE RABNER: S MS. GIFFORD
PLEASE PROCEED R. ALISON GIFFORD: YOUR HONOR, YOUR HONOR,
MAY IT PLEASE THE COURT. I'D LIKE TO RESERVE 2 MINUTES FOR REBUTTAL,
IF NECESSARY. CHIEF JUSTICE RABNER: THAT'S FINE MENT.
ALISON GIFFORD: THE PROSECUTOR IN THIS CASE COMMITTED A GRIEF JUS AND REVERSIBLE
MISCONDUCT WHICH HE DEPLAYED IN A OF JACK NICK COULDN'T SOLLY TO R IS THE
SHINING AND COMPARED DEFENDANT DAMON WILLIAMS TO THIS DERANGED CHARACTER. THIS
WAS NOT A MURDER CASE. IN FACT, IT WAS A CASE ON THE BORDER OF ROBBERY AND
THEFT. TO CONVICT ARMED ROBBERY ARE THE JOUR HAD TO FIND THAT THE
PERPETRATOR PURPOSELY PUT THE TELLER IN FEAR OF IMMEDIATE BODILY INJURY WHILE
COMMITTING A THEFT. MR. WILLIAMS'S DEFENSE WAS BECAUSE THE PERPETRATOR
YOU'VE THE WORDS PLEASE AND THANK YOU IN HIS NOTE DISPLAYED NO WEAPONS AND MADE
NO THREATS OF VIOLENCE OF ANY KIND, HE'S NOT PUT THE TELLER IN FEAR AND
ONLY THEREFORE COMMIT ADD THEFT. INFORMATION WHEN ASKING THE JURY
TO CONVICT ON ROBBERY OVER THEFT, THE PROSECUTOR FLASHED BACK TO BACK
PHOTOGRAPHS THE PERPETRATOR AND NICHOLSON'S CHARACTER TO MAKE HER ARGUMENT THAT.
THE SHINING PHOTOGRAPH CAPTURES THE I AM IF A MISS MOMENT YELLS HERE'S
JOHNNY MENACING THROUGH A HOLE IN A LOCKED DOOR AFTER USING AN AXE TO CHOP THROUGH
THE DOOR IN AN A TEMP TO KILL HIS WIFE AND CHILD MUCH THE STA AND THE
ATTORNEY GENERAL CONCEDE THAT THE PROSECUTOR'S BEHAVIOR WAS INAPPROPRIATE, OVERLY
DRAM MATIC AND ILL ADVISED, IT WAS NOT REVERSIBLE ERROR. HOWEVER, IN A
CASE THAT TURNED ON HOW THREATENING THE JURY FOUND THE DEFENDANT TO BE, THE PROSECUTOR
'S ADDITION TO COMPARE HIM TO A PSYCHOPATHIC AXE MURDER BE IS NOT HARMLESS.
PROSECUTOR'S MAY STRIKE HARD BLOWS BUT NOT FOUL ONES. THE PROSECUTOR
'S ACTIONS IN THIS CASE CROSSED THE LINE AND INTERFERED WITH MR. WILLIAMS' FUNDAMENTAL
RIGHT TO HAVE A JURY FARL EE VAL HIS HIS EVENT, ACCORDING IS THE REVERS
AL OF CONVICTION IS IS REQUIRED, THAT CONCLUDES MY MRIM #2345ER STATEMENT.
THERE ARE 2 MAIN AREAS THAT I'D LIKE TO FOCUS ON. THE FERS
IS WHY IS THIS NOT MISCONDUCT WHY THIS MISCONDUCT. THE PROSECUTOR'S ACTIONS
IN THIS CASE SLIGHTED A NUMBER OF ESTABLISHED RULES GOVERNING
PROSECUTORIAL BEHAVIOR. RPT I THINK YOU'RE FROZEN, FOR ME.
JUSTICE LA VECCHIA: WE CAN HEAR YOU. JUSTICE SOLOMON: WE CAN HEAR
YOU. CHIEF JUSTICE RABNER: MS. GIFFORD PLEASE GO AHEAD WITH
YOUR ARGUMENT, WE CAN HEAR YOU. ALISON GIFFORD: GREAT. SO AS I WAS
SAYING, THE PROSECUTOR'S ACTIONS HERE VIOLATED A NUMBER OF ESTABLISHED
RULES GOVERNING PROSECUTORIAL BEE HAFRN THE FIRST IS THAT USE OF THE PHOTOGRAPH
WAS HIGHLY INFLAMMATORY. IN THE BLAKE KNEE THE COURT STATED THAT THE
PRSH'S DUTY IS TO CURB THE STATE'S CASE BASED ON THE EVIDENCE AND NOT TO PLAY
AN PASSION OR TRIGGER OF THE JURY OR TRIGGER EMOTIONAL FLASH POINT THE FRAFGS
SERVED NO ODD PURPOSE THAN TO TRIGGER AN EMOTIONAL IN THE JURY VEK VK
IS YOUR POSITION MS. GIFFORD WITH REGARD TO THAT POINT EXACTLY THAT BY SHOWING
THE PICTURE THE PROSECUTION WAS DRAWING AN INFORMATION, HERE THE INFORMATION
WAS LADENED WITH EMOTION AS YOU SAY, THAT'S NOT PRESENT IN THE EVIDENCE IN THE
RECORD BEFORE THE JURY, ARE YOU GOING THAT FAR IN YOUR ARGUMENT (THAT
WAS LAVECCHIA). ALISON GIFFORD: YES, PRECISELY, YOUR HONOR,
THERE WAS NO EVIDENCE THE WEAPON WAS USED IN THIS CASE OR THAT THE PERPETRATOR
MADE ANY VIOLENT THREAT AND MAKING HER CASE TO CONVICT ON ROBBERY OVER THEFT
PROSECUTOR DREW IN A PHOTOGRAPH OF AN AXE WIELDING MURDERER WHO WAS
FAR MORE THREATENING AND DANGEROUS THAN THE EVIDENCE SHOWED THE DEFENDANT TO BE
HERE. JUSTICE LA VECCHIA: SO MY POINT EXACTLY IS ARE YOU
EMPHASIZING THE INFERENCE TO BE DRAWN OR ARE YOU MAKING A FURTHER ARGUMENT THAT
IT IS ACTUAL INFORMATION THAT IS BEING PRENTD AS PART OF THIS RECORD
TO CREATE THIS EMOTIONAL DRAW THAT THE STATE WISHES THE JURY TO INFER FROM CLOSE
CONTACT, MENACING THAT WOULD MOVE THEFT OVER TO ROBBERY? ALISON
GIFFORD: THIS WAS AN F A COULDN'T INFORMATION COME FRK FROM OUTSUED THE RECORD.
OF THE PHOTOGRAPH WASN'T IN EVIDENCE, IT WASN'T ADMITTED INTO EVIDENCE,
IT HAD NO. JUSTICE LA VECCHIA: MAY I ASK A FOLLOW UP QUESTION.
THANK YOU. THEN IN ASSESSING IS THE PREJUDICIAL EFFECT OF THIS DOCUMENT, THIS,
THE SCREEN SHOT THAT WAS SHOWN TO THE JURY, DO WE ASSESS THE PREJUDICIAL
EFFECT JUST FROM THE IMAGE STANDING ALONE OR DO WE ALSO ASSESS IT AND CONSIDER
IT IN THE CONTEXT OF COUNSEL'S WORDS AND REMARKS ABOUT THE PICTURE? SEE
WHERE I'M GOING? ALISON GIFFORD: YES. BOTH, YOUR HONOR, THE
REMARKS AND PICTURES STAND ALONE. THE MOST INFLAMMATORY THING THAT THE PROSECUTOR
DID HERE WAS WITHDREW HER WORDS AND BY DRAWING ANALOGY THAT ACTION WAS
PUT WORDS IN THE CONTEXT AND LOOK AT THIS MOVIE THE SHINING WHERE HE SAYS HERE'S
JOHNNY BUT HE'S ON A MURDER RUSS RAMPAGE. FRN FRN THE PHOTOGRAPH DOESN'T
SHOW AN AXE, IT'S A MENACING FACE BUT YOU TALK ABOUT AN AXE BUT I DIDN'T SEE
THE MOVIE, AND SO I DIDN'T KNOW IT WAS AN X UNTIL YOU MENG THE IT THAT'S IN THE
NOT A MOVIE I CARED TO WATCH, AND SO THE AXE WOULD ONLY APPLY TO SOMEONE
WHO HAD ACTUALLY SEEN THE MOVIE AND KNEW WHAT IT WAS. DOWN POINT A MENACING
FACE, I UNDERSTAND THAT. (I'M NOT DOWN PLAGUE THE POINT, PARTICULAR
EN (I DIDN'T SEE ANY AXE IN THE PHOTO I'M LOOKING TO MAKE SURE.
ALISON GIFFORD: I UNDERSTAND, YOUR HONOR, I THINK THAT'S WHERE THE PROSECUTOR
'S WORDS WERE PARTICULARLY IMPORTANT BECAUSE SHE SAID IF YOU HAVE SEEN
THIS MOVIE YOU KNOW HOW THE HE GETS THROUGH THE DOOR, SHE'S IMPLYING THAT HE
DID SOMETHING VERY DANGEROUS TO GET THROUGH THE DOOR AND SHE WAS
ENCOURAGING INAPPROPRIATE DISCUSSION AMONGST THE JURORS ABOUT WHAT WAS THE CONTEXT
OF THIS PHOTOGRAPH AND WHAT DID HAPPEN BEFORE. JUSTICE ALBIN:
YOU'RE ALSO SUGGESTING, I TAKE THE YOU'RE ALSO SUGGESTING THAT POLICE WANTED
MORE JURORS WERE MORE FAMILIAR WITH THIS VERY WELL KNOWN MOVIE AND THEREFORE,
MORE THAN JUST A PHOTOGRAPH, IT'S EVERYTHING THAT GOES WITH THAT
CHARACTER, LIKE YOU WERE SAYING, HOMICIDAL MURDERER COMES INTO PLAY. AND EVEN
MORE THAN ONE JUROR OR ONE OR MORE JUROR SAW IT, THERE'S A DECENT LIKELIHOOD
THAT IT MAY HAVE BEEN DISCUSSED, THOSE WHO HADN'T SEEN SIT MAY HAVE BEEN
ASKING THOSE WHO HAD SEEN SIT WHAT WAS IT ALL ABOUT. IS THAT PART OF YOUR ARGUMENT.
ALISON GIFFORD: WE ALL KNOW SAYING A PICTURE IS WORTH A
THOUSAND WORDS AND HERE THE PICTURE REALLY WAS WORTH A THOUSAND WORDS GIVEN HOW
TERRIFYING AND CRAZY THE NICHOLSON CHARACTER IS IN THAT MOVIE.
IF, CONTINUING ON TO THE POINT OF PREJUDICE THAT I, YOU KNOW, HAD BEEN SPEAKING
ABOUT EARLIER, THIS REALLY WAS A CASE ON THE BORDER OF ROBBERY AND THEFT
AND THE JURY'S DECISION TUFRNED ON HOW DANGEROUS IT FOUND THE PERPETRATOR TO BE
AND BECAUSE THE COMPARISON HERE CARRIES THE RISK THAT THE JURY WOULD FIND
THE PERPETRATOR TO BE MORE DANGEROUS THAN THE EVIDENCE SHOWED, THERE'S A CLEAR
RISK OF HARM IN THIS CASE AND RECOGNIZED IN BOTH SMITH AND CROSS THAT
PROSECUTORIAL MISCONDUCT REQUIRED GOES TO THE HEART OF THE CASE. AND THAT'S
REALLY PRECISELY WHAT HAPPENED HERE. RPT. JUSTICE LA VECCHIA:
RTS. JUSTICE PATTERSON: THERE WAS AN OFFER BY THE TRIAL COURT
TO GIVE A CURATIVE INSTRUCTION BUT MAY HAVE BEEN VERY THE LAWYER THOUGHT IT WOULD
HIGHLIGHT IT AND DECLINE THAT. HOW DOES THAT FACTOR INTO THE ANALYSIS?
ALISON GIFFORD: I THINK WHAT'S IMPORTANT HERE IS TO LOOK
AT THE BACK AND FORTH THAT HAPPENED BETWEEN DEFENSE COUNSEL AND THE JUDGE AND
THE POSSIBILITY OF OF THE CURATIVE AND THE CONCERN HERE ON BOTH THE
TRIAL COURT AND DEFENSE COUNSEL WAS THAT A CURATIVE COULD ACTUALLY DO MORE HARM
THAN GOOD IN THIS CASE BECAUSE OF HOW INFLAMMATORY THE COMPARISON WAS.
AND SO WHILE MY POSITION IS A CURATIVE WOULD HAVE BEEN BETTER THAN NOTHING AT
ALL, IT WAS A REASONABLE CONCERN THAT THE CURATIVE COULD ACTUALLY DO MORE
DAMAGE HERE BY DRAWING ATTENTION TO THE COMPARISON. SO RPT I THINK P IT
DOESN'T, IT SHOWED DEFENSE COUNSEL DIDN'T SEE IT AS A SERIOUS ISSUE AND A SERIOUS
PREJUDICIAL ISSUE. JANE SDWRAN THE APPELLATE DIVISION CALLED THIS A
FLEETING COMMENT IN ADD DEFG PREJUDICIAL EFFECT BUT SOME ACADEMIC STUDIES SUGGEST
THAT WORDS COMBINED WITH PICTURES HAVE GREATER IMPACT IN THE MEMORY
OF JURORS THAN WORDS ALONE. SO HOW SHOULD THIS COURT CONSIDER ASSESSING
THE HARMFULNESS OF WORDS AND PICTURES USED IN POWER POINT PRESENTATIONS
THAT MAY STRAY BEYOND IN THE FUTURE, WHAT KIND OF STANDARDS SHOULD BE APPLIED?
ALISON GIFFORD: I THINK IT WOULD BE VISUAL AIDS OR GOFRED
BY THE STATE OF LAW AS ORAL STATEMENTS. BUT ANY TIME GENERALLY THE VISUAL AIDS
THEN, AS THE ATTORNEY GENERAL STATES, MUTT CONTAIN A REFERENCE ADMISSIBLE
EVIDENCE. AND WHETHER IT CROSSES THE LINE IS THE TYPE OF DETERMINATION THAT
A TRIAL COURT IS IN A VERY GOOD POSITION TO THE DECIDE BECAUSE IT'S THE TYPE
OF PROSECUTORIAL MISCONDUCT ATTORNEY DETERMINATION THAT THE COURTS ARE MAKE,
TRIAL COURTS ARE MAKING ON A DAY-TO-DAY BASIS BUT AT ANY TIME THAT A
VISUAL AID IS UTILIZED BY THE PROSECUTOR, PARTICULAR CAUTION ABOUT STRAYING AT
ALL FROM THE RECORD BECAUSE THERE CARRIES A RISK OF HAVING A VERY INFLAMMATORY
IMPACT ON RPT JURORS THAT TAKE -- JUSTICE LA VECCHIA: HOW
DO YOU PLEA SERVE WELL TRIED CASES, MS. GIFFORD? I MEAN IN ORDER TO ADDRESS
THIS PROBLEM THAT YOU'RE DESCRIBING TO THE COURT, IS THE OWN REMEDY SHARING THE
POWER POINT PICTURE AHEAD OF TIME? THE STATE AND ITS ADVOCATES SEE
PROBLEMS WITH, BUT IF IT CAN'T BE PULLED BACK AND A CURATIVE INSTRUCTION WON'T
WORK, I MEAN DO WE LOSE IT'S SUFFICIENCY OF A WELL TRIED CASE BECAUSE OF A
LAST MINUTE SHOWING OF A SLIDE WITH REMARKS IN CLOSING STATEMENTS? THERE'S A
PRACTICALITY THAT I'M CONCERNED ABOUT HERE. ALISON GIFFORD:
WE DO, YOUR HONOR. AND THAT'S WHY I THINK IT'S SO IMPORTANT TO ADOPT A RULE
WHERE WE ARE DISCLOSE BEFOREHAND BECAUSE WHEN WE GET SO FAR INTO THE
TRIAL THAT THIS WAS SO PREJUDICIAL THE COURT ONLY REMEDY WAS TO AT THIS POINT
AND AT THAT POINT IF THAT'S GOING TO BE THE ONLY CASE, THE SITUATION,
CERTAINLY THE TRIAL COURT AND TOERNGS WANT TO KNOW BEFOREHAND AND BE ABLE TO
PREVENT THAT PREJUDICIAL IMAGE GEE FROM GETTING TO THE JURY IN THE FIRST
PLACE. PATS PAT THE ORDER OF PROCEED NGZ A CRIMINAL TRIAL, THERE'S A RULE THAT
SAYS EVERYTHING MUST BE DISCLOSED AHEAD OF TIERJS ALL POWER POINT OR
WHATEVER THE AUDIO VISH WULGS ARES IS MUCH HARDER ON THE STRAIGHT HASN'T IT IS
THE ON THE DEFENDANT, IT ESSENTIALLY GIVES THE DEFENDANT THE OPPORTUNITY, IF
THAT DISCLOSURE IS MADE BEFORE BOTH SUMMATIONS TO RESPOND TO A SUMMATION
THAT'S COMING FROM THE STATE WITH A LOT OF RESCISSION. I DON'T UNDERSTAND HOW
WE'RE EVER, WE'RE TALKING SUMMATIONS, I DON'T UNDERSTAND HOW THAT EVER
COULD BE AN EQUITABLE RULE. ALISON GIFFORD: WELL, YOUR HONOR, ONE
THING THAT I WOULD PROPOSE THAT THE STATE COULD DISPOSE OF THE IMAGES
RIGHT BEFORE ITS SUMMATION, THAT WAY THE DEFENSE WOULD BE, THE CASE WOULD BE
COMPLEETD. SO IN THAT CASE THERE WOULD BE NO RISK TO THE THE STATE BECAUSE
THE DEFENSE CASE IS ALREADY WRAPPED UP AND MY POSITION IS I HAVE NO ISSUE WITH
THAT, THOSE SLIDES BEING DISCLOSED RIGHT BEFORE THE STATE'S SUMMATION.
CHIEF JUSTICE RABNER: THE PROPHYLACTIC RULE YOU SUGGEST SHOWING IT
TO THE JUDGE BEFORE SUMMATIONS DOES THAT APPLY TO BOTH SIDES OR JUST ONE.
ALISON GIFFORD: MY POSITION IT SHOW APPLY TO THE STATE FOR THE SAME MONEY
THE DISCOVERY RULES AREN'T ENTIRELY RECIPROCAL MUCH THE CONCERN IS NEW
JERSEY IN IS IMAGE GEE DEPRIVING THE DEFENDANT CONSTITUTIONAL RIGHT OF THIS TRIAL
WHERE THE STATE HAS THE BURDEN OF PROVING GUILT BEYOND A REASONABLE DOUBT
BASED ON THE EVIDENCE AND THE PROPOSED RULE IS TO PREVENT SUCH IMAGE GEE FROM
DEPRIVING THE DEFENDANT OF THAT RIGHT. CHIEF JUSTICE RABNER:
SO THE GOAL AT THIS POINT IS TO ENSURE A FAIR TRIAL TO, PROTECT THE RIGHTS OF
HAD A AVARIETY OF PLAYERS, OF COURSE THE DEFENDANT, VICTIM AND PUBLIC ALSO
HAVE RIGHTS TWROEP A TRIAL, AND AS ALL PARTIES HAVE POINTED OUT, WE WANT TO AVOID
RER ABUSE AND RETRIALS. WHY WOULDN'T THE RULE, IF IT WERE
ADOPTED, BE APPLICABLE TO BOTH SIDES LOGICALLY? ALISON
GIFFORD: MY POSITION IS THAT WHILE EVERYONE HAS A RIGHT TO A FAIR TRIAL IN THE
INTEREST IN, A FAIR TRIAL THAT'S BECAUSE THE DEFENDANT RIGHTS ARE ROOTED
IN THE CONSTITUTION THAT THE STAKES ARE HIGHER AND PREJUDICIAL IMAGE GEE POSSIBLY
DEPRIVING THE DEFENDANT OF THAT RIGHT. JUSTICE ALBIN: YOU'RE
NOT, WHAT'S THE HARM, WHAT IS THE, YOU'RE ABOUT TO GIVE A SUMMATION, WHAT IS
THE HARM SHOWING WHAT IMAGE GEE YOU'RE ABOUT TO INTRODUCE RIGHT BEFORE
YOUR SUMMATION SO IF IT IS OBJECTIONABLE, IT COULD BE OBJECTED TO BEFORE
IT'S DISPLAYED BEFORE THE JURY? ALISON GIFFORD: YOUR HONOR,
MY POSITION IS FIRST OF ALL, I WOULD PREFER A MUTUAL DISCLOSURE RULE TO
NO RULE AT ALL, BECAUSE OF THE DEFENDANT'S FAIR TRIAL RIGHTS ARE ROOTED IN THE
CONSTITUTION AND THERE'S A RISK OF LIBERTIES AT STAKE HERE. THAT'S MY
POSITION IS THAT IT SHOULDN'T GO BOTH WAYS BUT MUTUAL RULE WOULD BE PREFERABLE
TO NO RULE AT ALL IN MY POSITION. CHIEF JUSTICE RABNER:
MR. MAGID CAN YOU HEAR US? JASON MAGID: CHIEF
JUSTICE RABNER: YOU HAVE TO UNMUTE YOURSELF. UNMUTE YOURSELF.
JASON MAGID: I CAN HEAR YOU, YOUR HONOR. I D I DID LOSE VOLUME FOR A WHILE
SO I'M TRYING TO PIECE TOETH ARGUMENTS NOW. CHIEF JUSTICE
RABNER: LET US KNOW IF YOU NEED MORE HELP LATER WITH RESPECT TO THAT. WE'LL
GE BACK TO MS. GIFFORD. THANK YOU. MS. GIFFORD I WANT TO TRY TO UNDERSTAND
THE SCOPE OF THE RULE AS WELL. I'VE SEEN GIFTED ATTORNEYS ON BOTH SIDES USING
FLIP CHART OR A POWER POINT TO SUMMARIZE THEIR SUMMATIONS AND BULLET
POINTS SO THERE'S THE VISUAL AND THE ORAL. ARE YOU SUGGESTING THAT ESSENTIALLY
THAT SUMMARY OF THE CLOSING WOULD NEED TO BE TURNED OVER AS WELL?
ALISON GIFFORD: YES, YOUR HONOR. I THINK THE ENTIRE, TO BE SAFE THAT
WE'RE COVERING ANY POSSIBLE PREJUDICIAL IMAGE GEE, THE WHOLE POWER POINT
SHOULD BE DISCLOSED RIGHT BEFOREHAND TO ALLOW FOR AND, IF THE -- YES. SORRY.
CHIEF JUSTICE RABNER: THE SUPREME COURT OF WASHINGTON IN
STATE VERSUS WALKER ADOPTED A VARIANCE ON WHAT YOU'RE SUGGESTING ENCOURAGING
TRIAL JUDGES TO REVIEW SLIDES BEFORE THEY'RE SHOWN TO A JURY BUT NOT
RIERG IT AS A HARD-AND-FAST RULE. IS THAT A SENSIBLE APPROACH?
ALISON GIFFORD: IT'S NOT, IN MY OPINION, YOUR HONOR, FOR THE SILL PULL
REASON THAT A RULE REQUIRES COMPLIANCE WHERE AS ENCOURAGEMENT DOESN'T
REQUIRE COMPLIANCE. JUST A STRONGER ACTION TO TAKE THAT WOULD ENSURE THAT IMAGES
ARE NOT GETTING TO THE JURY. ENCOURAGEMENT IS A GOOD FIRST STEP BUT A RULE
IS A BED AND STRONGER ACTION TO TAKE IN MY MIN. CHIEF JUSTICE
RABNER: HAVE THEY HAD PROBLEMS IN WASHINGTON STATE, TO YOUR KNOWLEDGE.
ALISON GIFFORD: SINCE WALKER, I'M NOT POSITIVE WHETHER, HOW EFFECTIVE
THE ENCOURAGEMENT HAS BEEN. I'D HAVE TO LOOK MORE INTO THAT.
CHIEF JUSTICE RABNER: OTHER QUESTIONS ANYONE? ANYTHING WE'LL HAVE YOU BACK FOR
REBUTTAL. ALISON GIFFORD: IF THERE ARE NO FURTHER QUESTIONS,
I JUST LIKE TO SUM UP BY QUOTING THIS COURT IN THAT THE PRIMARY DUTY OF A PROSECUTOR
IS NOT TO OBTAIN CONVICTIONS BUT TO SEE THAT JUSTICE IS DONE. AND IN
A CASE THAT TURNED ON HOW DANGEROUS THE JURY FOUND THE PERPETRATOR, THE PROSECUTOR
'S DECISION COMPARED HIM TO A HOMICIDAL MANIAC WHO QUESTIONED DEPRIVED
MR. WILLIAMS OF HIS ACTUAL RIGHT TO A FAIR TRIAL. MR. WILLIAMS DESERVES A TRIAL
WHERE THE STATE MAKES THE CASE BASED ON THE EVIDENCE ALONE. THANK YOU.
CHIEF JUSTICE RABNER: THANK YOU. MR. SHALOM.
ALEXANDER SHALOM: THANK YOU AND MAY IT PLEASE THE COURT. I LIKE TO START BY
TAKING UP THIS TIMING QUESTION BECAUSE I THINK IT'S AN IMPORTANT ONE. IF
THE COURT DOES IMPOSE A PROPHYLACTIC RULE, IN MY SCOMPLEERNS AS A TRIAL EXPERIENCE
AS A TRIAL CORNER WHERE I WAS FREESHTHLY USING VISUAL AIDS COURTS OFTEN ASK
FOR PREINSPECTION AND THE, AND TO PROVIDE MY ADVERSARIES AS WELL AND I WAS COMFORTABLE
WITH THAT SO LONG AS IT DIDN'T GIVE THEM AN ADVANCE LOOK BEFORE THEY WERE
GOING TO GO. FOR EXAMPLE JUSTICE PATTERSON YOU'RE RIGHT OBVIOUSLY THE TIMING
OF SUMMATIONS WOULD NECESSARILY HARM THE STATE FIT HAD TO GO BEFORE ALL
SUMMATIONS. THE SAME IS TRUE FOR OPENING STATEMENTS, IN THE JUNE VERSE WHICH
IS TO SAY ASK THE DEFENDANT TO PRO VID AN A VISUAL AID, BUT IF WE HAD THE DEFENDANT
DO IT AFTER THE STATE HOPENED BUT PRIOR TO THE DEFENDANT'S OPENING,
THERE WOULD BE NO PREJUDICE. AND THIS SHOULDN'T BE A LONG INSPECTION. THE OTHER
SIDE DOESN'T GET TO SAY I DON'T LIKE THIS SLIDE. THEY SIMPLY GET TO KNOW
WHERE THE SLIDE IS OBJECTIONABLE. SOS THAT ON TIEMG. JUSTICE
FERNANDEZ-VINA ON THE QUESTION I THINK YOU'RE IN THE #3450I7B NOR RTS OF
PEOPLE THAT ARE NOT FAMILIAR WITH THE AXE AND THE SHINING, BUT LET'S ACCEPT THAT
FERN I'M A MINORITY IS I MOVE BUT, I'M NOT A GLAD YATD 30 YEARS AGO I'M NOT A
MOVIE FLAN. SHALL HAL THAT MAY HAVE BEEN TRUE OF THE SOME OF THE 14
JURORS AND ESSENTIALLY INVITED THOSE JURORS TO THE FAMILIAR WITH THE FILM TO
CONSULT WITH THE JURORS FAMILIAR WITH THE FILM AND SO FOR THE NOT MOVIE
BUFFS, THE HE A PORPTS TO KNOW THAT ON THE THE 0 SIDE OF JACK NICHOLSON'S FACE
IS HIS WIFE AND SON COULD YOU REMEMBERING IN THE ROOM AFRAID THEY'RE GOING
TO GET KILLED BY HIM BECAUSE HE HAD PREVIOUSLY KILLED A ANOTHER EMPLOYEE
IN THE HOTEL. SO THIS IS A VIOLENT SCENE AND IT IS AN I
COULDN'T NICK SCENE THAT MOST JURORS WOULD KNOW AND THOSE WHO DIDN'T WOULD BE
ASKING ABOUT IT. I WANT TO TALK A LITTLE BIT ABOUT THE ROLE OF
THE CURATIVE THE NONDELIVERED CURATIVE BECAUSE THE STATE AND THE ATTORNEY GENERAL
SEEM TO SUGGEST THAT, LOOK, THE REASON THE DEFENDANT DIDN'T WANT THE
CURATIVE IS BECAUSE IT WOULD FOCUS THE JURY'S ATTENTION ON THE MESSAGE THAT ACTIONS
SPEAK LOUDER THAN WORDS, THE PROPER MESSAGE THAT ACTIONS SPEAK LOUDER
THAN WORDS. THAT WASN'T THE CONCERN OR CERTAINLY WASN'T THE ONLY CONCERN. THE
CONCERN WAS FOCUS THEIR ATTENTION ON THIS I AM MRIS KIT COMPARISON
BETWEEN MR. WILLIAMS AND MR. TORE RES, THE VILLAIN IN THE FILM AND THAT'S THE
RISK THAT YOU HIGHLIGHT THAT. EVERYONE HAS USED THE ADAGE A PICTURE IS WORTH
A THOUSAND WORDS AND THAT'S TRUE AND THAT'S WHY THEY CAN BE SO POWERFUL.
BUT WHAT THE STATE CAN'T DO IS DISCLAMENT WORDS THAT ARE BAD FOR THEM. TO
SAY I WANT TO GET ALL THE POWER FROM BUT THE ONLY ONES I'M EXPLICITLY
ENDORSING ARE THESE 2 HUNDRED 50 SO IGNORE THE 7 HUNDRED 50 THAT TALK ABOUT ZIE
LENS AND FEAR ABOUT IF YOU TAKE THE RISK AND THE BENEFIT OF USING AN IMAGE,
YOU HAVE TO ACCEPT THE IMAGE AS IT IS AND IT COMES WITH ALL OF THE THESE WORDS.
YOU KNOW, I NOTE THAT THE APPELLATE DIVISION IN THIS CASE
DIDN'T SIMPLY SAY THAT THE MISCONDUCT IN THIS CASE DIDN'T RISE TO THE LEVEL OF
REVERSIBLE MISCONDUCT. THEY SAID THE CONDUCT DIDN'T RISE TO MISCONDUCT.
SO IMPLICIT IN THE APPELLATE DIVISION'S OPINION IS A MESSAGE TO PROSECUTOR'S
THAT THIS IS OKAY. AND OBVIOUSLY RPT ACKNOWLEDGMENT OF THE PROSECUTOR
AND THE ATTORNEY GENERAL HERE THEY SAY THIS WAS NOT APPROPRIATE. MISCONDUCT
AND ASK THE COURT TO TYPE FINE ACCIDENTS COURT TO FINE IT IS HARMLESS. AND
THE REASON IF WE KEEP FINDSING ERROR TO BE HARMLESS, WE RISK TAKE ARE
OU PROSECUTORIAL MISCONDUCT AND JUICE RIS PRUDENCE AND TURN IT IN WORD SOUP,
OH, LISTEN, PROSECUTORS ARE ALLOWED TO STRIKE HARD BLOWS AND WE FOR
GET THE OVERALL PICTURE WHICH IS THEY MUST REFRAIN FROM STRIKING FOUL ONES THIS
IS AS FOUL A MRO AS COULD HAVE BEEN STRUCK AND I JUST ASK YOU TO TAKE ALL OF THE
LANGUAGE, THE UNSAID LANGUAGE FROM THAT IMAGE, IMAGINE IF A PROSECUTOR
STOOD UP AND SAID JUST LIKE SOMEONE WHO TRIED TO KILL HIS WIFE AND KIDS WITH
AN AXE BUT BEFORE DIDN'T SAY OOM GOING TO KILL YOU AND INSTEAD SAID
HERE'S JOHNNY, MR. WILLIAMS CONVEYED A THREAT. THERE ISN'T A JUDGE IN THE WORLD
THAT WOULD ALLOW SUCH PREJUDICIAL EVIDENCE IN. THEY CAN'T SEEK SHELTER IN
THE FACT THAT THEY USED A PICTURE RATHER THAN WORDS TO CONVEY THE SAME MESSAGE.
UNLESS THE COURT HAS ANY QUESTIONS. THE COURT:
BEFORE YOU START, IS THERE ANYTHING YOU NEED ADDITIONAL CONTEXT IN, I'M SORRY YOU
WERE OUT A LITTLE EARLIER, ANY ADDITIONAL CONTEXT YOU NEED MR. MAGID.
MR. MAGID: I BELIEVE I MISSED REGARDING THE DISCUSSION OF A PROPHYLACTIC
RULE, I BELIEVE I CAME IN AT THE END, I BELIEVE I HAD AN UNDERSTANDING OF WHERE
THE QUESTIONS WERE GOING BUT I DID MISS THAT PORTION I BELIEVE PRIMARILY
REGARDING MISS GIFRDZ'S ARTH. THE COURT: MISS GIFFORD WOULD YOU
LIKE TO SUM UP YOUR POSITION ON THE PROPHYLACTIC RULE AND THEN WE'LL HAVE
MR. MAGID IN. APPELLANT: YES P WE TALKED ABOUT WHETHER THE
RULE WOULD APPLY TO BOTH THE PROSECUTION AND THE DEFENSE AND ABOUT THE TIMING OF THE
DISCLOSURE, AND MY POSITION PRIMARILY IS THAT THE RULE SHUNTING BOTH WAYS
BECAUSE DEFENDANT'S CONSTITUTIONAL RIGHTS TO A FAIR TRIAL ARE ROUTED IN THE
CONSTITUTION AND THE PREJUDICIAL IMAGERY POSES A REAL RISK OF UNDERMINING THAT RIGHT
SO I WOULD PREFER THE EXPOSURE RULE OVER NO RULE AT ALL, AND WE TALKED A
BIT ABOUT THE TIMING OF THE DISCLOSURE AND HOW IT COULD HAPPEN RIGHT BEFORE EACH
SIDE GOES DURING OPENING AND SUMMATION IN ORDER TO LIMIT ANY UNFAIR ADVANTAGE
TO EITHER SIDE, FOR EXAMPLE, IF THE STATE WOULD POSE RIGHT BEFORE IT MADE ITS CASE
IN SUMMATION, THE DEFENSE CASE WOULD ALREADY BE COMPLETED AT THAT POINT,
SO THERE WOULD BE NO UNFAIR ADVANTAGE TO THE STATE THERE. IF THE COURT WANTS TO
ADD ANYTHING FURTHER. CHIEF JUSTICE RABNER: THANK YOU MISS
GIFFORD. MR. MAGID. MR. MAGID: THANK YOU MISS GIFFORD.
REGARDING THOSE COMMENTS, THE STATE WILL FIRST BEGIN WITH THE STATE OF THE
DISCUSSION OF WHETHER THE PROPHYLACTIC RULE WOULD BE NECESSARY IN THIS INSTANCE
OR IN FUTURE CASES, AND IT'S THE STATE'S POSITION THAT THAT WOULD NOT BE
NECESSARY, THAT WHAT IS ALREADY IN PLACE, THE RULES SET BY THIS COURT, THE GUIDANCE
ALTERED BY THIS COURT IN ITS MULTIPLE OPINIONS ADDRESSING PROSECUTOR YAL
MISKUSHTH AND CLEARLY LAYING OUT WHAT CONSTITUTES THAT MISCONDUCT THAT A
PROPHYLACTIC RULE WOULD NOT BE NECESSARY, IN MILLION TO KNOW VERSUS STATE, EVEN
THERE THE STATE PROVIDED THE VIDEO TO THE DEFENSE AND TO THE COURT PRIOR TO IT
PRESENTING IT TO THE JURY DURING THE PENALTY PHASE AND EVEN THERE THERE WAS STILL
AN APPEAL, THERE WAS STILL AN ISSUE, SO IT'S NOT A RULE THAT'S GOING TO BE
PERFECT THAT'S GOING TO ALWAYS ABILITY AS A DAMN TO ANY POSSIBLE PREJUDICIAL MATERIAL
GETTING BEFORE THE JURY, WE'RE STILL GOING TO ENDS UP WHERE WE ARE TODAY,
IT'S GOING TO BE APPEALED, IT'S GOING TO BE ARGUED. JUSTICE
ALBIN: WHY IS THAT, MR. MAGID, IT WOULD SEEM TO ME THAT IF OUR RULES WERE SO CLEAR,
WE WOULDN'T BE ARGUING THIS APPEAL, IF BEFORE THE PROSECUTOR ESZ SUMMATION
THE PROSECUTOR WAS REQUIRED TO DISCLOSE THE ICONIC JACK NICHOLSON HOMICIDAL MANIAC
LOOK, I TAKE IT THERE WOULDN'T HAVE BEEN AN OBJECTION AND IN ALL PROBABILITY
THE TRIAL COURT WOULD HAVE SAID YOU CAN'T SHOW THAT AND THEN YOU WOULDN'T BE ARGUING
THIS CASE, SO WE'RE NOT OUT OF THIS PROPHYLACTIC RULE. MR.
MAGID: AND YOUR HONOR IS RIGHT, IN THIS INSTANCE THAT MAY VERY WELL HAVE PLAYED
OUT, THAT IT MAY NOT HAVE BEEN PERMITTED TO BE SHOWN TO THE JURY IN THIS
INSTANCE, BUT -- JUSTICE FERNANDEZ-VINA: HOW ABOUT WHEN IT'S
CLOSE, THE COURT RULES THAT IT'S INAPPROPRIATE OR APPROPRIATE AND IT'S USED, THE
PARTIES DON'T WAIVE THE RIGHT TO APPEAL BECAUSE THE COURT'S RULING ON THIS
SHOULD BE WHETHER IT'S ADMISSIBLE OR NOT OR PROPER OR IMPROPER CAN ALWAYS BE APPEALED
SO THE FACT THAT YOU'RE SEEING IT IS JUST GIVING YOU AN OPPORTUNITY TO RESPOND
TO IT IN YOUR SUMMATION, THAT DOESN'T MEAN THAT THE DEFENDANT IN THIS CASE
IS WAIVING THEIR RIGHT TO APPEAL, SO IN THAT SENSE THE RULE WOULDN'T DO MUCH OTHER
THAN JUST PREPARE YOU SO YOU CAN DO A BETTER JOB ON YOUR RESPONSE OR
SUMMATION OR OPENING STATEMENT, BUT IT WOULDN'T CHANGE ANYTHING, AS JUSTICE ALBIN
SAID. SO HOW WOULD IT BE HELPFUL, BECAUSE I'M SURE THAT YOU'RE NOT WILLING
TO SAY I WAIVE MY RIGHT TO AN APPEAL FOR AN IMPROPER VIDEO BECAUSE THE COURT RULED
THAT IT WAS APPROPRIATE TO BE USED IN SUMMATION. MR. MAGID:
CORRECT, AND THE VERY FACT THAT IT THEN WILL ALWAYS HAVE -- THE DEFENDANT WILL
ALWAYS HAVE THAT MEASURE OF BEING ABLE TO APPEAL A DECISION THAT THEY BELIEVED
WAS ERRONEOUS, THAT'S WHERE THE FUNDAMENTAL RIGHT IS ALWAYS GOING TO BE
PRESERVED FOR A DEFENDANT, IS THAT THE DEFENDANT ALWAYS HAS THE RIGHT TO
APPEAL IF THE DEFENDANT BELIEVES IT WAS ERRONEOUS, AND BACK TO WHETHER OR NOT THE
PROPHYLACTIC RULE WOULD OR WOULD NOT WORK, YES, IN THIS CASE IF THE PROSECUTOR
HAD SHOWN THE IMAGE TO THE COURT AND THE DEFENSE COUNSEL PRIOR TO SHOWING
IT TO THE JURY, IT MAY NOT HAVE BEEN PERMITTED, BUT THIS IS THIS INSTANCE AND IF
THIS COURT WITH ITS GUIDING HAND WERE TO RULE THAT YES THIS IMAGE WAS
INAPPROPRIATE BUT THE STATE'S POSITION IS THAT IT WAS HARMLESS, THEN IN THE FUTURE
THAT WOULD BE THE GUIDING HAFRNTD FOR PROSECUTORS WHEN IT COMES TO CLOSING,
WHEN IT COMES TO PROVIDING IMAGES IN THEIR POWER POINT PRESENTATION, AND THE PERFECT
EXAMPLE IS RI VAR YA RA, IN RIVERA THERE WAS A POWER POINT PRESENTATION,
THE PROSECUTOR USED AN IMAGE OF THE DEFENDANT BUT PUT THE WORDS GUILTY ACROSS THE
FOREHEAD OF THE DEFENDANT AND THE APPELLATE DIVISION IN THAT CASE SAID
IT WAS IMPROPER, SO GOING FORWARD PROSECUTORS KNOW IF I'M GOING TO PROVIDE A SLIDE
IN MY SUMMATION I CAN'T PUT THE WORDS GUILTY ACROSS THE SLIDE, I HAVE TO BACK UP
WHATEVER I MUTT IN THE SLIDE FROM THE CASE OR THE REASONABLE INFERENCES
THAT MAY BE DRAWN FROM THAT EVIDENCE. JUSTICE SOLOMON: COULD
I JUST BRING YOU BACK TO A MUCH EARLIER QUESTION BY JUSTICE LAVECCHIA.
ADMITTEDLY THERE ARE GOING TO BE CHALLENGES AND QUESTIONS AND APPEALS WHETHER IT'S
DISCLOSED OR NOT, BUT SHE RAISE THE THE QUESTION OF WOULD THIS NOT SEE SOME
WELL TRIED CASES BECAUSE AT LEAST THE COUNSEL AND THE JUDGE WOULD HAVE A CHANCE
TO WEIGH IN, IT'S NOT A QUESTION OF WHETHER IT'S A PERFECT SOLUTION IN EVERY
CASE, IT'S NOT A QUESTION OF WHETHER ANYBODY IS WAIFG ANY RIGHT, THE QUESTION IS
WOULD WE BE ABLE TO SAVE SOME CASES, BECAUSE IT WOULD SEEM TO ME THAT COMMON SENSE
WOULD TELL UH UH DON'T STAMP GUILTY ACROSS THE FOREHEAD OF A DEFENDANT,
BUT SOMEBODY DID IT. BUT ISN'T THAT THE QUESTION, CAN WE SAVE, NOT HURT ANYBODY,
NOT UNDERMINE A CASE, OR STRATEGY, BY SIMPLY SAYING BEFORE THE CLOSING THE
STATE AND DEFENDANT, DWERNS COUNSEL, WILL ADVISE THE COURT OF THE VISUAL AIDS AND
GIVE OPPOSING COUNSEL A CHANCE TO OBJECT? WOULD THAT NOT I GUESS, I'M REPEATING
MYSELF, BUT WOULD THAT NOT POTENTIALLY SAVE WELL TRIED CASES?
MR. MAGID: DEFINITELY ANY POTENTIAL THAT MAY EXIST IS THWARTED BY THE FACT
THAT IT'S TOO PREJUDICIAL AND TOO CUMBERSOME FOR EITHER PARTY, BECAUSE THE
DEFENSE IS ARGUING THAT THE STATE SHOULDN'T HAVE TO PROVIDE THEIR SLIDES
BUT THE STATE SHOULD, JUST BECAUSE THE DEFENDANT IS ENTITLED TO A FUNDAMENTALLY
FAIR TRIAL -- JUSTICE SOLOMON: ASSUMING IT'S A MUTUAL
OBLIGATION. MR. MAGID: THEN IT STILL IS CUMBERSOME IN THE SENSE
OF HOW WOULD IT FUNCTIONALLY WORK AT TRIAL IN THE SENSE THAT WHEN WOULD THOSE IMAGES
BE PROVIDED, SECONDS BEFORE THE CLOSING BEGINS? THEN IF THE STATE HAS A
N OBJECTION, EVERYTHING HAS TO STOP AND HAS TO BE ARGUED, THERE'S NO TUBTS OPPORTUNITY
TO BRIEF THE ISSUE, NO OPPORTUNITY FOR THE COURT TO FURTHER INVESTIGATE THE
ISSUE, BECAUSE NOW WE HAVE THE JURY LOCKED AND READY TO --
JUSTICE ALBIN: YOU REALLY THINK YOU'RE GOING TO HAVE TO BRIEF THIS PHOTOGRAPH?
COME ON. THERE WOULD BE A PHOTOGRAPH AND THERE WOULD BE AN OBJECTION, AND
IT WOULD BE TO THE BENEFIT OF THE STATE, BECAUSE THE STATE DOES NOT WANT TO HAVE
ITS CONVICTIONS OVERTURNED. IN THIS PARTICULAR CASE, THE PROSECUTOR WHO WAS
ACTING IN AN APPARENT EXCESSIVE MANNER WOULD HAVE BEEN SAVED BY THE OBJECTION
IN THE TRIAL COURT. THAT WOULD BENEFIT THE STATE, NO? MR.
MAGID: IT WOULD BENEFIT THE STATE BUT ALSO THE STATE IN THIS INSTANCE BENEFITED
FROM THE FACT THAT THIS WAS NOT PREJUDICIAL, THAT THIS IMAGE, THE
IMAGE THAT YOUR HONOR JUST HELD UP, IN THE GRAND SCHEME, THIS IMAGE DID NOT RISE
TO THE LEVEL OF BEING SUBSTANTIALLY PREJUDICIAL. CHIEF
JUSTICE RABNER: LET'S COME BACK TO THAT IN JUST A MOMENT. IS THERE AN INFORMAL PRACTICE
TOO MUCH THAT TAKES PLACE WHERE COUNSEL SHOW EACH OTHER IMAGES BEFORE
ARGUMENT? MR. MAGID: I'M UNAWARE THAT THERE'S ANY INFORMAL
PRACTICE, IT MAY OCCUR IN CERTAIN INSTANCES WHERE, YOU KNOW, EITHER ATTORNEY MAY
WANT TO SHOW SOMETHING TO THE JURY OR UTILIZE SOMETHING AND THEY BRING IT
TO THE OTHER ATTORNEY'S ATTENTION OR THE COURT'S ATTENTION AHEAD OF TIME, I'M UNAWARE
IF THERE'S ANY FOR MALPRACTICE, I'M UNAWARE OF THAT. CHIEF
JUSTICE RABNER: WHAT WOULD BE THE HARM IN A CASE LIKE THIS WHERE A PHOTO WERE SHOWN
IN ADVANCE TO THE OTHER SIDE, YOU'RE NOT GIVING AWAY THE ENTIRETY OF YOUR
ARGUMENT. MR. MAGID: ONE WOULD BE THE DELAY CLEARLY, BECAUSE
FOR EXAMPLE THIS IMAGE WAS PART AND PARCEL OF A POWER POINT PRESENTATION ALREADY
PUT TOGETHER AND READY TO BE UTILIZED, IF THIS IS NOT ABLE TO TO BE USED, THE
PROSECUTOR NEEDS TO BE AFFORDED THE TIME TOLL EDIT THE POWER POINT AND IT
COULD SIGNIFICANTLY DELAY THE TRIAL AND THE CLOSING, YOU WANT KWLOEFGS TO OCCUR
SHOULDER TO SHOULDER, YOU DON'T WANT THERE TO BE A SIGNIFICANT GACH OR PERIOD
BETWEEN THE PARTIES, YOU'D WANT THOSE CLOSINGS TO OCCUR AT THE SAME TIME SO THE
JURY IS PRESENTED THE ARGUMENTS OF COUNSEL TOGETHER AND AT THE SAME TIME SO THEY
CAN UNDERSTAND THOSE ARGUMENTS. JUSTICE PIERRE-LOUIS: BUT AGAIN,
ISN'T A BELIEVE DELAY TO INSURE THAT BOTH PARTIES AGREE THAT WHATEVER IS
BEING PRESENTED IS APPROPRIATE, ISN'T A BRIEF DELAY BETTER THAN A CONVICTION BEING
REVERSED BECAUSE OF SKW TREEMLY PREJUDICIAL PICTURES OR IMAGES BEING
SHOWN TO THE JURY AT THE END OF THE TRIAL? I MEAN I DON'T SEE HOW -- I DON'T UNDERSTAND
HOW THIS WOULD BE SO CUMBERSOME AND BURDENSOME ON THE PROCESS,
PARTICULARLY IN THIS CASE, THE OBJECTION WOULD HAVE BEEN MADE, I DON'T THINK IT WOULD
HAVE TAKEN THAT MUCH TIME TO DELETE ONE PICTURE OFF OF A POWER POINTER, ANYONE
WHOSE USED POWER POINT, I DON'T SEE HOW THAT WOULD BE A SIGNIFICANT DELAY
PRIOR TO THE CLOSING, I'M NOT UNDERSTANDING HOW THIS BURDENSOME ARGUMENT IS
WORKING. MR. MAGID: WELL, THE BURDENSOME ARGUMENT, I AGREE
WITH YOUR HONOR IN THE SENSE THAT IF YOU LOOK AT IT IN A VACUUM WITH RESPECT TO
THIS CASE ONLY IT'S A MORE DIFFICULT ARGUMENT TO BE MADE BECAUSE THIS POWER
POINT PRESENTATION WAS ONLY 9 SLIDES, HOWEVER IN OTHER INSTANCES, POWER PINT
PRESENTATION COULD BE UPWARDS RFR 30, 50, A HUVEN SLIDES, FOR EXAMPLE THAT STATE VS.
WALKER CASE FROM THE STATE OF WASHINGTON, TLP 250 SLIDES IN THAT POWER POINT
PRESENTATION, THAT WOULD BE CUMBERSOME, THE TIME TO REVIEW 250 POWER POINT SLIDES
AND THE CONTENT THEREIN, LET ALONE TO HAVE AN OBJECTION, TO THEN RULE ON THE
OBJECTION, TO HEAR ARGUMENT AND THEN TO OFFER THE OPPORTUNITY TO REMEDY WHATEVER
PISHS THERE ARE. JUSTICE PATTERSON: JUDGES KNOW HOW TO MOVE
THROUGH EXHIBITS, YOU KNOW, EASILY, FOR EXAMPLE, EVEN IF THERE'S ARE A VA
LUM FLUS SET OF EXHIBITS THE JUDGE LOOKS THROUGH IT AND I CAN'T IMAGINE THAT ANYBODY
IS GOING TO HAVE A HUNDRED SLIDES ON A SUMMATION, THEY'RE ASKING FOR A VERY
BOARD JURY, BUT IF THEY HAVE 50, A JUDGE IS GOING TO BE ABLE TO FLIP THROUGH THEM,
MOST OF IT IS GOING TO BE WORDS AND THE TYPICAL STUFF, JUST TO SEE WHETHER
THERE'S A PROBLEM THERE. I DON'T SEE TIMING AS A REALLY SIGNIFICANT FACTOR.
MR. MAGID: WELL I THINK IF YOU LOOK AT THIS FURTHER, ARE WE
SOLELY FOCUSSED ON THE VISUAL NATURE OF THE SLIDES OR THE CONTENT AS WELL BECAUSE
WHAT IF A PROSECUTOR STANDS UP THERE TO GIVE A CLOSING ARGUMENT AND HAS
THEIR ENTIRE CLOSING ARGUMENT WRITTEN OUT VERBATIM, AND THEY INTEND TO READ IT
TO THE JURY, PAPER HELD IN HARND IN FRONT OF THE JURY AND READING THAT ENTIRE
CLOSING ARGUMENT, ARE WE TO SAY THAT PRIOR TO CLOSING ARGUMENT THE PROSECUTOR IS
TO PROVIDE -- JUSTICE PATTERSON: NO, WE'RE TALKING ABOUT
VISUALS, I DON'T THINK THERE'S ANY SUGGESTION HERE THAT THE CONTENTS OF SUMMATIONS
OR OPENING STATEMENTS SHOULD BE REVEALED BEFORE THE FACT, I THINK THE ISSUE IS
WHETHER THERE'S A POWER POINT PRESENTATION OR SOME OTHER METHOD PRESENTING
BEFORE THE JURY SOME IMAGE, OR WORDS, A SUMMARY OF WORDS, SO I DON'T THINK THERE'S
ANY THREAT THAT JUDGES ARE GOING TO BE READING SUMMATIONS JOOP THE ARGUMENT
THAT THE STATE IS MAKING THAT YOU'RE FOCUSING ON THE POWER POINT SLIDE AND NOT
(INAUDIBLE). JUSTICE ALBIN: MR. MAGID, MANY SO-CALLED POWER
POINTS ARE JUST THE DISPLAY OF IMAGES OF PHOTOGRAPHS AND OTHER PIECES OF EVIDENCE
THAT ARE GOING BEFORE THE JURY. I MEAN THERE WOULD BE NO NEED FOR THE JUDGE
TO REVIEW THAT PROVIDED THAT THERE WAS A REPRESENTATION BY THE PROSECUTOR OR THE
DEFENSE ATTORNEY THAT MY POWER POINT DISPLAY IS GOING TO BE PHOTOGRAPHS
THAT HAVE BEEN ADMITTED INTO EVIDENCE, THAT WOULD BE A VERY SIMPLE THING. DO YOU
AGREE? MR. MAGID: AS A LIMITATION AS TO A POTENTIAL
PROPHYLACTIC RULE. JUSTICE ALBIN: YES, WELL, YOU'RE TALKING
ABOUT -- THE JUDGE WOULD NOT HAVE TO GO THROUGH 50 PHOTOGRAPHS THAT HAVE ALREADY
BEEN MARKSED INTO EVIDENCE. THE JUDGE WOULD BE ABLE TO ACCEPT THE
REPRESENTATIONS OF COUNSEL THAT MY POWER POINT PRESENTATION WOULD BE THE PHOTOGRAPHS
ALREADY MARKED INTO EVIDENCE, THEN THE JUDGE WOULD BE ABLE TO SAY FINE.
MR. MAGID: BUT RESPECTFULLY THAT WOULD NOT WORK BECAUSE WHAT IF -- THEN
IT GOES FURTHER AND SAY UNREASONABLE PIECE OF EVIDENCE OR AN IMAGE THAT WAS
ENTERED INTO I HAVE HAD OR ACCEPTED INTO EVIDENCE BY THIS COURT, BUT WHAT IF THE
DEFENSE ATTORNEY OR PROSECUTOR ALTERED THAT IMAGE, WHAT IF THEY PUT THE WORD
GUILTY ON THE IMAGE OR SOME OTHER POSSIBLY PREJUDICIAL WORDING.
JUSTICE FERNANDEZ-VINA: WONDER THAT BE A FALSE REPRESENTATION, COUNSEL, I USED
TO BE A TRIAL JUDGE, I USED TO BE A TRIAL ATTORNEY, IF YOU ADVISED THE COURT
TO EVIDENCE THAT'S ALREADY BEEN ADMITTED AND THEN YOU ALTERED IT, I THINK MAYBE
SOME CONTEMPTS OR ETHICS VIOLATION PERHAPS, I'M JUST SAYING.
MR. MAGID: I UNDERSTAND THAT, MAYBE MY RESPONSE WASN'T CLEAR, THE RESPONSE WAS
THAT WON'T MINIMIZE THE CUMBERSOME TIME THAT THE COURT WOULD TAKE TO REVIEW
THESE SLIDES, IF THE PROSECUTOR WOULD GET UP THERE TO SAY I'M ONLY ADMITTING EVIDENCE
THAT HAVE BEEN ADMITTED, I'M UFLG FIVE PIECES THAT HAVEN'T BEEN ALTERED BUT
40 PIECES HAVE BEEN, SO YOU HAVE TO REVIEW THOSE, AND AGAIN, IT BECOMES CUMBERSOME.
CHIEF JUSTICE RABNER: MR. MAGID WOULD YOU BE OPPOSED TO A
STATEMENT FROM THIS COURT ASKING OR ENCOURAGING, BUT FALLING SHORT OF COMMANDING,
PARTIES TO EXCHANGE VISUAL AIDS BEFORE ARGUMENTS IN THE CASE, AT THE
BEGINNING AND AT THE END, AND ENCOURAGE RULINGS BY THE JUDGE IF NECESSARY.
MR. MAGID: I THINK AN ENCOURAGEMENT IS FAR MORE PRACTICAL AND APPLICABLE
THAN A PROPHYLACTIC ABSOLUTE RULE, I THINK THAT WOULD BE THE GUIDING HAND
NECESSARY FROM THIS COURT TO ENSURE THAT POSSIBLE PREJUDICIAL ISSUES DO NOT OCCUR
IN THE FUTURE, AND I DO THINK THAT IT WOULD ALLOW THE ATTORNEYS TO UNDERSTAND
THE INFORMAL PROCESS ESPECIALLY IF KNIFE A GOOD WORKING RELATIONSHIP WITH
OPPOSING COUNSEL AND THE COURT. JUSTICE FERNANDEZ-VINA: SO ENCOURAGEMENT
IS BETTER BECAUSE YOU WOULDN'T FOLLOW IT AND WE'D BE RIGHT BACK HERE TODAY
WHEREAS A RULE, YOU WOULD FOLLOW IT AND WE WOULDN'T BE BACK HERE TODAY.
MR. MAGID: NO, NOT AT ALL, IT'S DIFFICULT TO COME UP WITH AN EXACT RULE TO
APPLY IN THESE SITUATIONS, ALL THE OTHER COURTS IN OTHER JURISDICTIONS HAVE OFFERED
ENCOURAGEMENT, NONE OF THEM HAVE PUT OUT A PROPHYLACTIC RULE THAT SPECIFICALLY
GLANDS OR ENFORCES, AND EVEN IN WALKER THAT ENCOURAGEMENT WAS BASED ON A CASE OF
A BHUS, IT WAS 200 POWER SLIDES WITH OVER A HUNDRED THAT WERE IMPROPER,
SO EVEN WITH THAT FRUSTRATION IN CAULK WE ARE THE COURT EVEN ONLY GAVE AN ENCOURAGEMENT
BECAUSE IT'S DANGEROUS TO GIVE A PROPHYLACTIC RULE TO REQUIRE OF
COUNSEL WHICH IN ESSENCE IS THEIR WORK PRODUCT, IT'S THEIR NOTES AS TO THE CASE.
BUT AGAIN WITH RESPECT TO THIS CASE IN PARTICULAR, THERE WAS NO SUBSTANTIAL
PREJUDICE THAT WOULD HAVE GONE TO THE DEFENSE FOR A FAIR TRIAL IN THIS CASE.
CHIEF JUSTICE RABNER: ONE LAST QUESTION BEFORE WE GET THERE, BECAUSE I KNOW
YOU APPEAR TODAY AS THE ACTING COUNTY PROSECUTOR, DID I HEAR THAT CORRECT?
MR. MAGID: ACTING ASSISTANT PROSECUTOR. CHIEF
JUSTICE RABNER: NEVER MIND, I'LL WITHDRAW THE QUESTION. CAN
I ASK YOU TO FOCUS DIRECTLY ON AN AREA THAT'S ALREADY RECEIVED ATTENTION THAT'S
OF CONCERN, IT'S NOT THE PHOTO ALONE, IT'S THE PHOTO IN THE CONTEXT OF THIS
SENTENCE, "BUT IF YOU'VE EVER SEEN THE PHOTO IN THIS MOVIE, YOU KNOW HOW THIS FACE
GETS THROUGH THE DOOR, ISN'T THAT A REFERENCE TO HIM GETTING THROUGH THE
GOOR WITH AN ACTION? MR. MAGID: I BELIEVE IT WAS THE ACTUAL
PUTTING THIS FACE THROUGH THE DOOR IN RELATION TO THE ROBBERY IN THIS CASE WHICH WAS
THE DEFENDANT ESSENTIALLY PUTTING HIS FACE ON TOP OF THE GATE.
JUSTICE LAVECCHIA: THAT'S NOW HOW HE SAYS IT. CHIEF JUSTICE
RABNER: YOU KNOW HOW HIS FACE GETS THROUGH THAT DOOR, IS THERE ANY OTHER WAY TO
UNDERSTAND THIS OTHER THAN A REFERENCE TO SOMEONE TAKING AN ACTION TO BREAK
DOWN PART OF THE DOOR TO GET HIS FACE THROUGH THERE. MR.
MAGID: IF IT IS A REFERENCE TO THE ACTION, IT DOESN'T RISE TO THAT LEVEL OF BEING
SUBSTANTIALLY PREJUDICIAL IN THIS CASE AND THE REASON BEING SO IS IF YOU
LOOK AT THE OPENING OF COUNSEL, THE CLOSING OF COUNSEL, THE DEFENSE AND THE
STATE, IT WAS REPEATEDLY STATED THAT NO WEAPONS WERE EVER USED OR THREATENED
IN THIS CASE, THE DEFENSE COUNSEL MULTIPLE TIMES MADE THAT REPRESENTATION TO THE
JURY. JUSTICE ALBIN: IF THE STATE'S CASE IS SO STRONG, WHY
DOES THE PRUD ROUTE HAVE TO USE SUCH A CHEAP GIMMICK IN ITS CLOSING? LIKE WHY?
SOMETHING THAT HAS SUCH POTENTIAL, INFLAMMATORY APPLICABILITY. SOMETHING
AS EXPLOSIVE AS THAT. IF IT'S SUCH -- IF THE CASE IS SO STRONG FOR THE STATE, WHY
ENGAGE IN THIS TYPE OF CONDUCT? MR. MAGID: FIRST AND FOREMOST
THE STATE'S POSITION IS THAT IT'S NOT HIGHLY INFLAMMATORY, YOU LOOK AT THE
SHINING IN GENERAL, THE SHINING IN GENERAL HAS BEEN THROUGHOUT TIME USED AS PAR
DECEMBER, THAT MOVIE IS A PARITY SO MANY TIMES THAT'S HARD TO KEEP COUNT, FOR
EXAMPLE, THE EXACT SEEM -- JUSTICE FERNANDEZ-VINA: YOU THINK
THIS WAS A PARITY, WHAT WAS DONE IN THIS CASE -- MR. MAGID:
THE STATE'S ARGUMENT IS NOT THAT THIS WAS A PARITY, WRA WE'RE TALKING ABOUT IS
THE STATE'S USE OF THIS IMAGE AND THEN THE ASSUMPTION OR THE BELIEF OF WHAT
THE JURY KNOWS THE ENTIRE MOVIE WAS, THE DEFENSE ARLT IS THAT JACK NICHOLSON'S
CHARACTER I WAS A HOME SIDE DAL MANIAC, THAT WAS NERVE REFERENCED BY THE
PROSECUTOR, BUT THE DEFENSE IS OPERATING ON WHAT THIS MOVIE IS MEANT TO BE, AND
THE STATE'S POSITION IS THAT IT IS NOTHING MORE THAN A PAR RODE, FOR EXAMPLE, THIS
ACTUAL SCENE WAS A SUPER BOWL COMMERCIAL, THEDZ THE ACTOR GO THROUGH THE
DOOR AND THEN COME IN WITH MOUNTAIN DUE. JUSTICE ALBIN: ARE YOU
SUGGESTING THAT THE PROSECUTOR IS USING IT AS A LIGHT MOMENT, THIS IS JUST A
FAILED ATTEMPT AT HUMOR. MR. MAGID: NO, WHAT THE STATE IS SUGGESTING
IS THAT WE ARE OPERATING UNDER THE ASSUMPTION THAT THE JURY ONLY LOOKS AT
THE MOVIE AS A HORRIFIC HOMICIDAL MANIAC, AND THIS MOVIE HAS BEEN PRESENTED TO THE
PUBLIC, TO CULTURE, OVER THE PAST 40 YEARS -- JUSTICE PIERRE-LOUIS:
BUT HOW IS IT BEING PRESENTED IN THIS CASE WHERE THE QUESTION WAS THIS WAS A
ROBBERY OR A THEFT, I THINK WE CAN ALL AGREE IT WASN'T BEING PRESENTED AS A LIGHT
HEARTED JOKE, IT WAS BEING PRESENTED TO SHOW THAT THERE'S THIS HOME SIDE DAL MANIAC
THAT DON'T ON THEIR FACE SEEM THREATENING, BUT THEY ARE REALLY THREATENING
BECAUSE HE'S A HOME SIDE DAL MANIAC, REGARDLESS OF HOW THIS MOVIE HAS BEEN USED
IN A LIGHT HEARTED FASHION, WE'RE TALKING ABOUT HOW THIS WAS USED HERE IN THIS
SUMMATION, THAT WAS CLEARLY NOT THE CASE HERE. MR. MAGID:
IT'S THE USE COUPLED BY THE JURY'S UNDERSTANDING OF THE MOVIE, IF THE JURY'S
UNDERSTANDING OF THE MOVIE IS THAT IT'S A HORROR MOVIE, THAT'S ONE THING, BUT
THE JURY MAY ALSO UNDERSTAND THAT THIS MOVIE DOESN'T CARRY THAT WEIGHT.
JUSTICE ALBIN: SO MR. MAGID, ON THE TOP OF THE ICONIC PHOTOGRAPH THERE'S
ACTIONS SPEAK LOUDER THAN WORDS, IF I PUT IN FRONT OF THAT THE PROSECUTOR'S
ACTIONS SPEAK LOUDER THAN WORDS, THAT THE PROSECUTOR -- AND THIS GOES TO JUSTICE
PEE AIR LIEU WEE, THE ACTIONS OF THE PROSECUTOR IN USING THIS WAS TO SOMEHOW MAKE
SOME SORT OF COMPARISON TO A HORRIFIC IMAGE TO THE PHOTOGRAPH IN THIS CASE.
AM I MISTAKEN. MR. MAGID: IT WAS TO ILLUSTRATE THE UNDERSTANDING
OF WHAT ACTIONS SPEAK LOUDER THAN WORDS MEAN, IT WAS NOT FOR A COMPARISON TO THE
HOME SIDE DAL MANIAC, THE COMPARISON THAT THE PROSECUTOR OFFERED WAS WRA
IF YOU'RE IN A PARKING LOT AND SOMEONE GOT EXTREMELY CLOSE TO YOU AND DEMANDED
YOUR WALLET, THAT WAS THE COMPARISON OFFERED BY THE PROSECUTOR IN THIS CASE IN
RELATION TO THE CONDUCT BY THE DEFENDANT, THE IMAGE WAS TO EXPLAIN WHAT
ACTIONS SPEAKER LOUDER THAN MEANS, IT WAS NOT TO INVITER THE COMPARISON OF HOME
SIDE DAL MANIAC TO THE DEFENDANT. AND ALSO WITH RESPECT TO POTENTIAL
PREJUDICE, WHAT WE'RE TALKING ABOUT IS A STILL IMAGE FROM THE MOVIE BUT WHAT THE
JURY ACTUALLY SAW IN THIS CASE, THE ACTUAL MOVIE, THE ACTUAL VIDEO THE JURY SAW
IN THIS CASE, WAS THE CRIME IN ITS ENTIRETY. THERE IS NO QUESTION THAT THE JURY
HAD TO IN LTHS MINDS PIECE TOGETHER WHAT THE CRIME LOOKED LIKE COUPLED WITH THIS
IMAGERY, THE JURY ON MULTIPLE OCCASIONS WAS PRESENTED WITH ACTUAL VIDEO
OF THE CRIME, SO THE JURY SAW THE CRIME CARRIED OUT IN ITS ENTIRETY VIA VIDEO,
SO THE JURY WAS ABLE TO SEE THE ACTUAL CRIME AND UNDERSTAND HOW THE CRIME
OCCURRED WITHOUT HAVING TO IMAGINE IT. SO THAT ALSO NEGATES PREJUDICE.
CHIEF JUSTICE RABNER: THE KEY ISSUE IN THIS CASE IS WHETHER IT COMES DOWN TO
ROBBERY OR THEFT, AND I'D LIKE YOU TO ADD DIRECT EXAMINATION HARMLESS ERROR WITH
THE FOCUS ON THAT, HARMLESS ERROR WITH RESPECT TO ROBBERY VERSUS THEFT, NOT WITH
RESPECT TO WHETHER THE DEFENDANT COMMITTED A CRIME. MR. MAGID:
IT'S HARMLESS BECAUSE IF YOU LOOK AT THIS OTHER CASES WHERE THEY FOUND IT TO BE
SO PREJUDICIAL THAT THE ISSUE WAS FAR GRIETD AS TO WHAT WAS THE CONCERN.
SO, FOR EXAMPLE, IN THE STATE VS. RIVERA CASE, WHERE IT WAS THE BAR FIGHT, THERE WAS
AN ISSUE OF TWO DIVERGENT STORIES AND SELF-DEFENSE, OR IN STATE VS. SMITH
I BELIEVE THAT WAS THE ISSUE WHERE IT CAME DOWN TO EXPERT TESTIMONY AND THE PROSECUTOR
MADE A CLEAR DISPARAGING COMMENTS ABOUT THE DEFENSE'S EXPERTS. HERE WHILE
THE POTENTIAL FOR THE JURY TO UNDERSTAND THAT AN ACTION WAS USED PRIOR TO TAKE
DOWN THE DOOR PRIOR TO PUTTING HIS HEAD THROUGH THE DOOR, THERE WAS NO ARGUMENT
BY THE DEFENSE, THE PROSECUTION, ANYONE, THAT THE THREAT OR THE FEAR OF
BODILY INJURY WAS CAUSED BY THE POTENTIAL OR THE THREAT OF A WEAPON, IT WAS NOT.
JUSTICE LAVECCHIA: DIDN'T THE TELLER TESTIFY THAT SHE DIDN'T
KNOW WHAT WAS IN HIS POCKET, SO WASN'T THERE THAT ELEMENT INTRODUCED TO THE JURY
THAT PERHAPS THERE WAS LURKING SOMEWHERE, AT LEAST IN THE TELLER'S MIND
THE POSSIBILITY OF A WEAPON, WHICH COULD HAVE BEEN BROUGHT FOREMOST TO THE JUROR'S
MIND WHEN THEY SEE THIS FACE OF NICHOLSON AFTER HE HAD JUST ACTION ACTION
ED AND CUT HIGS WAY THROUGH THE DOOR, SO YOU'RE SUGGESTING THERE'S NO CONNECTION
WHATSOEVER AND WE'RE NOT CONSIDERING AT A TIME FACT THAT THAT WAS TESTIMONY
PRESENTED TO THE JURORS. MR. MAGID: THAT WAS TESTIMONY BUT AGAIN
WE'RE TALKING ABOUT THE IMAGE OF AN ACTION COMPARED TO WHAT THE DEFENDANT
MAY OR MAY NOT HAVE HAD IN HIS POSSIBILITY, TO DRAW A CORRELATION I WOULD
SAY THE JURY WOULD HAVE THOUGHT HE MUSTER SOME DANGEROUS WEAPON IN HIS POCKET,
WHAT WAS ACTUALLY THE KEY TO THE VICTIM'S TESTIMONY WAS THE UNKNOWN, IT WAS THAT
THIS DEFENDANT WITH HIS I WAS DASHS BEHAVIOR TO WALK INTO A BANK --
JUSTICE FERNANDEZ-VINA: ISN'T THAT EXACTLY WHAT THE PROSECUTOR TRIED TO
POINTS OUT BY SAYING YOU DON'T SEE THE ACTION BYE WE ALL KNOW HOW HE BROESHG THAT
DOOR, ISN'T THAT THE PROSECUTOR'S ARGUMENT EXACTLY, TO CONVINCE THEM EVEN
THOUGH YOU DIDN'T SEE AN ACTION, HE PROBABLY HAD AN ACTION, EVEN THOUGH YOU
DIDN'T SEE A GUN HE PROBABLY HAD A GUN IN HIS POCKET. MR. MAGID:
ABSOLUTELY NOT, THAT WASN'T THE ARGUMENT PUT FORTH BY THE STATE, THE ARGUMENT BY
THE STATE WAS THE DEFENDANT'S CONDUCT BY WALKING INTO THE BANK, PRESSING
HIS BODY AGAINST THE SMALL GATE, THE FOCUS WAS THE POLICE AND THE THANK YOU, THAT
BEING A POLITE CRIMINAL IS NOT SUFFICIENT TO GET YOU OUT FROM UNDER A ROBBERY
CON CONVICTION. JUSTICE ALBIN: SO THE QUESTION IS NOT WHETHER
THERE WAS SUFFICIENT EVIDENCE TO CONVICT THE DEFENDANT, THE QUESTION IS WHETHER OR NOT
THE INTRODUCTION OF THAT PHOTOGRAPH HAD THE CAPACITY TO TIP THE SCALES.
MR. MAGID: CORRECT. JUSTICE ALBIN: THAT'S THE
ISSUE. MR. MAGID: CORRECT. JUSTICE ALBIN: OKAY.
MR. MAGID: YES, THAT IS ABSOLUTELY THE ISSUE, WE DON'T LOOK
TO -- WE LOOK TO WHETHER IT'S PREJUDICIAL, BUT THE WEIGHT OF THE EVIDENCE DOES
GO TO THE EVIDENCE BECAUSE THERE WAS A VIDEO OF THE CRIME, THEY GOT TO SEE
THAT AND THE STILL IMAGES, THEY HEARD THE TELLER'S TESTIMONY AS TO WHAT THE DEFENDANT
SAID AND DID, THAT WEIGHED AGAINST THIS IMAGE OF JACK NICHOLSON WEAKENED
ANY POTENTIAL PREJUDICE BECAUSE THE JURY WAS MADE CLEAR WHAT WAS AT ISSUE IN THIS CASE,
IT WAS DO THE WORDS PLEASE AND THANK YOU AMELIORATE THE ROBBERY, THE THEORY
OF BODILY INJURY, DOES IT AMELIORATE THAT, AND THAT WAS WHAT WAS WHAT THE PURPOSE
OF IT WAS FOR. CHIEF JUSTICE RABNER: THANK YOU MR. MAGID,
THANK YOU, MISS HENDERSON. MS. HENDERSON: GOOD MORNING, YOUR HONORS,
THE ATTORNEY GENERAL'S INTERESTS IN THIS CASE IS ESSENTIALLY LOOKING AT THE
POWER POINTS USED DURING SUMMATIONS AND THE STANDARDS TO BE USED IN EVALUATING
ON APPEAL WHETHER OR NOT THEY WERE PREJUDICIAL OR APPROPRIATE. IT SEEMS
TO BE THAT ALL THE PARTIES AGREE THAT THE STANDARDS FOR THE POWER POINT PRESENTATION
ARE IDENTICAL TO THE STANDARDS FOR WHAT'S SAID DURING AN ORAL SUMMATION
IN TERMS THAT IT HAS TO BE BASED ON THE EVIDENCE OR REASONABLE INFERENCES THERE
FROM AND AS I OUTLINED IN OUR BRIEF, THERE'S CLEAR STANDARDS OF WHERE YOU
CROSS THE LINE AND WHERE YOU DON'T. IN THIS CASE OBVIOUSLY THE PHOTOGRAPH WAS
INAPPROPRIATE, ILL-ADVISED AND PROBABLY DRAMATIC, BUT THE ARGUMENT ITSELF WITHOUT
THE PHOTOGRAPH IS APPROPRIATE, THAT ACTIONS SPEAK LOUDER THAN WORDS, BUT
THEN THE QUESTION IS, YOU KNOW, THE USE OF THE PHOTOGRAPH, DID IT -- WAS IT UNDULY
PREJUDICIAL AND DENY THE DEFENDANT A FAIR TRIAL. OUR POSITION WAS THAT
THE THEORY WAS NOT TO COMPARE HIM TO A HOME SIDE DAL MANIAC, NO ONE CLAIMED THAT
THERE WAS ANY GUN IN THIS CASE OR ANY OTHER WEAPON, SO THE FACT THAT THE
CHARACTER THAT WAS IN THE PHOTOGRAPH WAS A HOME SIDE DAL MANIAC, NOBODY WAS CLAIMING
DEFENDANT WAS A HOME SIDE DAL MANIAC. IN TERMS OF A CURATIVE INSTRUCTION I THINK
THE JUDGE COULD HAVE SIMPLY SAID PLEASE DISREGARD THIS PHOTOGRAPH, I DON'T
THINK PEOPLE HAD TO THINK OVER HOW AM I GOING TO EXPLAIN WHAT THE PHOTOGRAPH MEANS,
JUST SAY PLEASE DISREGARD THE PHOTOGRAPH, IT'S NOT PART OF THE EVIDENCE,
IT SHOULD NOT BE PART OF YOUR DELIBERATIONS.
REGARDING THE PUBLIC DEFENDER'S ARGUMENT THAT THERE SHOULD BE A PROPHYLACTIC RULE,
I DON'T THINK A RULE IS NECESSARY AT THIS TIME BECAUSE THERE'S REALLY NOT
A WIDE SPREAD PROBLEM, THERE'S ONLY BEEN A FEW CASES WHERE IT'S BEEN RAISED ON
APPEAL AND THE ONLY CASE WHERE THERE'S BEEN A SIGNIFICANT PROBLEM IS THIS ONE,
SO I THINK TO AT THIS POINT, TO TAKE A RULE, MAYBE DOING TOO MUCH AT THIS
PARTICULAR TIME. CERTAINLY I'VE LISTENED TO THE DIFFERENT DISCUSSIONS ABOUT IF
WE DID IT WHAT TIMING WE SHOULD DO IT AND I AGREE THAT IF THERE'S ANY TYPE
OF RULE ADOPTED THAT IT SHOULD BE CLEARLY APPLICABLE TO BOTH SIDES, THAT THE PROSECUTOR
SHOULD NOT HAVE TO DISPLAY IT BEFORE THE ARGUMENT TO GIVE DEFENSE COUNSEL
A HEADS UP ON WHAT THEIR SUMMATION IS GOING TO BE. I ALSO THINK IT SHOULD BE LIMITED
TO IMAGERY IN TERMS OF PHOTOGRAPHS AND NOT NECESSARILY TO, YOU KNOW, THE
ENTIRE POWER POINT PRESENTATION, AND I THINK GOING BACK TO WHAT ONE OF THE JUS
TITSZ SAID, IF THERE'S REPRESENTATION MADE THAT ALL THE PHOTOGRAPHS ARE IMAGES
IN THE POWER POINT PRESENTATION ARE EVIDENCE THAT WAS PRESENTED AT TRIAL,
I DON'T BELIEVE THERE WOULD BE A NEED TO REVIEW IT AT THAT TIME. I THINK IF IT'S
LIMITED TO IMAGERY THAT'S NOT PART OF THE RECORD, WHICH PROBABLY SHOULDN'T
BE IN THE POWER POINT PRESENTATION TO BEGIN WITH, THAT THE PROSECUTOR OR DEFENSE
COUNSEL IS GOING TO PUT AN IMAGE IN THAT WAS NOT PART OF THE RECORD, THAT THEY
WOULD HAVE TO GET THE APPROVAL FROM THE JUDGE AND THE OPPOSING COUNSEL. BUT THE
MAJORITY OF THE POWER POINTS ARE SEEMINGLY BASED UPON THE EVIDENCE PRESENTED AT
TRIAL, THE PHOTOGRAPHS PRESENTED AT TRIAL, AND I THINK THAT SHOULD BE SUFFICIENT.
IF THE COURT HAS ANY QUESTIONS, YOU KNOW, I'LL TAKE THEM AT
THIS TIME, BUT, YOU KNOW -- CHIEF JUSTICE RABNER: QUESTIONS ANYONE?
HIS HENDERSON, WAS THERE ANYTHING YOU'D LIKE TO ADD? MS.
HENDERSON: NO, I THINK THAT COVERS IT, I THINK THAT, YOU KNOW, CLEARLY I THINK
THESE HAVE BEEN WORKING, I DON'T THINK THERE'S BEEN AN ABUSE OF POWER POINTS,
BUT I THINK IT'S SOMETHING OBVIOUSLY THE STANDARDS THAT WE HAVE FOR ORAL ARGUMENT
SHOULD BE APPLIED TO THE POWER POINTS AND THINGS THAT ARE NOT PART OF THE
RECORD SHOULD NOT BE INCLUDED IN ORAL PRESENTATION ANY MORE THAN IN A POWER POINT.
CHIEF JUSTICE RABNER: THANK YOU. MISS GIFFORD, BRIEF REBUTTAL?
APPELLANT: YES, YOUR HONOR, I JUST WANTED TO EMPHASIZE
AGAIN THAT DISCLOSURE HERE WOULD HAVE PRESENTED US FROM BEING IN THE VERY POSITION
THAT WE ARE IN NOW AND I ALSO WANTED TO JUST TOUCH UPON THE STATE AND ATTORNEY
GENERAL'S ARGUMENT THAT THIS WASN'T PREJUDICIAL HERE, THAT IT WAS HARMLESS ERROR,
THE COMPARISON HERE IT ABSOLUTELY CARRIED THE RISK OF IMPORTING THE EXISTENCE
OF A WEAPON INTO A CASE WHERE THERE WAS ABSOLUTELY NO EVIDENCE OF SUCH A WEAPON,
AND WHEN THE CASE TURNED ON HOW DANGEROUS THE JURY FOUND THE PERPETRATOR
TO BE, THERE WAS A CLEAR RISK OF PREJUDICE. AND THAT'S ALL. THANK YOU, YOUR HONOR.
CHIEF JUSTICE RABNER: THANK YOU, AND THANK YOU ALL COUNSEL
FOR THE HELPFUL ARGUMENTS, WE'LL TAKE THE MAD UNDER ADVISEMENT.