(APPEARANCES OF COUNSEL ENTERED.) CHIEF JUSTICE
RABNER: GOOD MORNING TO CALL COUNSEL AND WELCOME. MS. ABRUPTLY, PLEASE GO AHEAD.
MARCIA BLUM: THANK YOU F I MAY I'D LIKE IT RESERVE A FEW MINUTES
FOR REBUTTAL. CHIEF JUSTICE RABNER: THAT'S FINE. BLUK MR.
GARCIA PRESENTED A STRONG CLAIM OF SELF-DEFENSE. AS THE PROSECUTOR STATED IN HIS
SUMMATION, THIS WAS IN THE JUNE 15TH TRANSCRIPT OF PAGE 130, THIS CASE COMES
DOWN TO WHICH VERSION OF EVENTS YOU FIND CREDIBLE. BUT MR. GARCIA WAS NOT
ALLOWED TO PRESENT CRITICAL EVIDENCE IN THE FORM OF A VIDEO THAT SUPPORTED THE
CREDIBILITY OF THE DEFENSE WITNESSES. THE TRIAL COURT RULING EXCLUDING THE
VIDEO WHOLLY UNDER MIND THE CREDIBILITY OF THE DEFENSE WITNESSES AND THE PROSECUTOR
TOOK IMPROPER ADVANTAGE OF THE EXCLUSION. VIDEO IN THE STATES TO FURTHER
UNDERMINED THE CORRECT OF THE DEFENSE WITNESSES. THERE WERE
TWO POINTS WHEN THE VIDEO WAS ADMISSIBLE. FIRST WHEN THE DETECTIVE TESTIFIED AND
SECOND WHEN THE PROSECUTOR CROSS-EXAMINED MR. GARCIA'S MOTHER.
SO FIRST WHEN THE DETECTIVE TESTIFIED SHE TOLD -- SHE REPRESENTED ALL OF THE POLICE
OFFICERS AT THE SCENE. SHE TOLD US THAT THAT THEY WERE PERHAPS AS MANY AS
TEN OFFICERS AT THE SCENE AND THAT THEY WERE ALL INVESTIGATING THE SCENE, THEY WERE
LOOKING FOR EVIDENCE, THEY WERE LOOKING FOR WITNESSES AND ON CROSS-EXAMINATION
AFTER ESTABLISHING THAT THE DEFENSE ATTORNEY TRIED TO ELICIT THAT SHE DIDN'T
SPEAK TO ANY MEMBERS OF THE DEFENDANT'S FAMILY, TO THE DEFENDANT OR ANY
MEMBERS OF HIS FAMILY. THE DETECTIVE INSISTED THAT THEY DEVELOPED ONLY A SINGLE
WITNESS WHO SAW EVERYTHING AND THAT WITNESS WAS THE COMPLAINANT'S WIFE AND SHE
REPEATEDLY SAID NO OTHER WITNESSES WERE FOUND, NO OTHER WITNESSES WERE FOUND.
WELL AT THAT POINT THE VIDEO WOULD HAVE REBUTTED THE DETECTIVE'S
TESTIMONY AND WOULD HAVE KNOWN THAT INDEED THE -- MR. GARCIA'S PARENTS HAD COME
FORWARD TO THE POLICE AT THE SCENE. THE VIDEO AS WE ARGUED IN THIS APPELLATE
DIVISION BRIEF WAS NOT HEARSAY EVIDENCE BECAUSE WE WERE NOT ASKING THAT ANYTHING THAT
WAS SAID SHOULD HAVE BEEN HEARD BY THE JURORS. IT WAS STRICTLY THE PICTURE
ON THE VIDEO THAT SHOWED THE PARENTS SPEAKING TO THE STAMZ.
STATE V. MILLER IT SAID THAT VIDEO EVIDENCE PRESENTS A MORE COMPLETE PICTURE. INDEED
IN THIS CASE AS I HOPE THE COURT HAS SEEN THE VIDEO YOU CAN SEE THAT A WOMAN
NOT IN UNIFORM WITH A NOTEBOOK IS WITHIN A FEW FEET OF WHERE THE DEFENDANT'S PARENTS
ARE SPEAKING TO THE POLICE. AND THAT IS PRECISELY HOW THE DETECTIVE WAS
DESCRIBED IN THE TRANSCRIPT AS A WOMAN NOT IN UNIFORM WITH A NOTEBOOK.
SO THE VIDEO WOULD NOT ONLY HAVE SHOWN THE PICTURE THAT THE PARENTS WERE, IN FACT,
SPEAKING TO THE POLICE BUT THAT THE DETECTIVE WAS NEAR BY AND AT THE SCENE
AND SPEAKING TO THE POLICE. ANY WAY IT CERTAINLY REBUTTED THE DETECTIVE ALSO TESTIMONY
THAT NOBODY ELSE CAME FORWARD AND SHE SAID IF ANYONE ELSE HAD CAME FORWARD OF
COURSE SHE WOULD HAVE SPOKEN TO THEM. NOW, THIS WAS NOT TANGENTIAL EVIDENCE.
THIS WAS ESSENTIAL AND CRITICAL EVIDENCE BECAUSE OF THE IMPLICATION THAT
THE DEFENDANT AN PARENTS DIDN'T COME FORWARD AT THE SCENE. NOW TWO YEARS LATER
AFTER THEY HIRED AN ATTORNEY NOW THEY'RE TELLING US IT'S SELF-DEFENSE.
SO THIS WOULD ADDRESS THE IDEA THAT THE SELF-DEFENSE WAS A CLAIM OF RECENT
FABRICATION. THERE WAS A SECOND POINT WHEN THE VIDEO WAS ADMISSIBLE
AND THAT'S WHEN THE PROSECUTOR CROSS-EXAMINED THE DEFENDANT'S MOTHER. ON
DIRECT EXAMINATION THE DEFENDANT'S PARENTS BOTH SAID WE TRIED TO SPEAK TO THE
POLICE AT THE SCENE. AND I BELIEVE THE STEPFATHER SAID WE WERE IGNORED.
ON CROSS-EXAMINATION THE PROSECUTOR TRIED TO DROVE DOWN ON THAT. HE ASKED
THE MOTHER REPEATEDLY YOU UNDERSTOOD WHO THE DETECTIVE WAS AT THE SCENE. AND
HE DESCRIBED THE DETECTIVE AS THE WOMAN WITH THE NOTEBOOK AND MR. GARCIA'S
MOTHER AGREED THAT SHE UNDERSTOOD WHO THE DETECTIVE WAS AT THE SCENE. AND THE
IMPLICATION WAS WELL MAYBE SHE SPOKE TO THE POLICE BUT SHE CERTAINLY DIDN'T
SPEAK TO THE DETECTIVE. WELL, THE VIDEO WOULD HAVE EXPLAINED WHY THE
PARENTS DIDN'T SPEAK TO THE DETECTIVE. AT THAT POINT THE VIDEO WAS ADMISSIBLE
TO EXPLAIN THAT AND I HAD CITED IN MY BRIEF THE CASE STATE VS. ST. PETER'S
HOSPITAL BUT THE ATTORNEY GENERAL ALSO CITED THAT CASE AND I THINK IF I MAY ON PAGE
29 OF THE ATTORNEY GENERAL'S BRIEF THEY TOWED DOWN ON STATE V. LC I THINK THAT
EXPLAINS WHY PRECISELY IT WOULD HAVE BEEN ADMISSIBLE AT THAT POINT WHEN THE PROSECUTOR
WAS CROSS-EXAMINING THE MOM. THE AG SAID A STATEMENT IS NOT
INADMISSIBLE HEARSAY WHERE STATEMENTS ARE OFFERED NOT FOR THE TRUTHFULNESS
OF THEIR CONTENT BUT ONLY TO SHOW THEY WERE IN FACT MADE AND THAT THERE EXISTED
OR TOOK CERTAIN ACTION SARMENTS THERE OF. WELL, IN THIS CASE
THE VIDEO SHOWED WHY THE PARENTS DIDN'T TAKE CERTAIN ACTION AS A RESULT THEREOF.
THE PARENTS DIDN'T GO TO THE DETECTIVE BECAUSE THE POLICE OFFICERS TOLD
THEM NOW IS NOT THE TIME TO TAKE IT TO COURT. SO THE UNIFORM REPRESENTATIVE OF THE
JERSEY CITY POLICE DEPARTMENT NOW IS NOT THE TIME TO TALK TO THE POLICE,
YOU TAKE THAT TO COURT. SO THAT WENT A LONG WAY TO EXPLAIN WHY THE PARENTS DIDN'T
PRESS ON AFTER THE POLICE TOLD THEM TAKE IT TO THE COURT, WHY THEY DIDN'T
PRESS ON AND INSIST ON TRYING TO TALK TO THE DETECTIVE. THE
EXCLUSION OF THE VIDEO COMPLETELY UNDERMINED THE PARENTS ANTICIPATES
CREDIBILITY. THE COURT INSTRUCTED ON THIS CREDIBILITY. THE COURT TOLD THE
JURY AS THEY WERE ENTITLED TO SAY AFTER THE MODEL CHARGE THAT YOU HAVE TO CONSIDER
THE BIAS OF THE WITNESS, YOU HAVE TO CONSIDER WHETHER THEIR INTEREST IN THE
OUTCOME. CASE. AND FRANKLY I ASSUME THAT EVEN WITHOUT THE INSTRUCTION THE JURY
WOULD HAVE HAD SOME EXCEPT SICHL ABOUT THE CREDIBILITY OF THE DEFENDANT AN
PARENTS. BUT AFTER THE INSTRUCTION ON CONSIDERING BIAS OF THE WITNESS THE COURT
GAVE FALSE IN ONE - FALSE IN ALL INSTRUCTION. SO IN OTHER WORDS, THE GIVEN
WAS GIVEN LICENSE THAT IF YOU DON'T BELIEVE THE PARENTS THAT THEY WENT TO THE
POLICE AT THE SCENE, THEN YOU DON'T HAVE TO BELIEVE THE PARENTS WHEN THEY TESTIFIED
THAT THE DEFENDANT AGENT IN SELF-DEFENSE. SO IF THE STATE WAS
ALLOWED TO ATTACK THE PARENT'S CREDIBILITY AS TO WHETHER THEY WENT TO THE POLICE
AT ALL, WHICH THEY WERE AND THE DEFENSE WAS NOT ALLOWED TO REHABILITATE THEN THE
JURY HAD A GREEN LIGHT TO DISBELIEF EVERYTHING THE PARENTS SAID. THE OMISSION
OF THE VIDEO WAS CRITICAL TO THE CREDIBILITY OF THE PARENTS. AND THE
PARENTS WERE CRITICAL TO THE CREDIBILITY OF THE SELF-DEFENSE. THAT'S
ESSENTIALLY MY ARGUMENT FOR POINT ONE AS TO WHY IT'S REVERSIBLE ERROR AND PREJUDICIAL
ERROR. TO EXCLUDE THE VIDEO AND IT WAS HIGHLY PREJUDICIAL TO EXCLUDE THE
VIDEO. IF I MAY I WOULD CONTINUE ON TO THE SECOND POINT AS TO
WHY THE PROSECUTOR'S ARGUMENT ABOUT THE EXCLUSION OF THE VIDEO WENT BEYOND THE
BOUNDS OF FAIR COMMENT AND TO QUOTE THE U.S. SUPREME COURT IN BERGER. AND
THE PROSECUTOR'S ARGUMENT WITH RESPECT TO THE VIDEO WAS AT THE JUNE 15TH TRANSCRIPT
AND I BELIEVE THE OBJECTIONABLE PORTIONS START ON PAGE 141 WHERE THE PROSECUTOR
MOCKS ESSENTIALLY THE PARENTS TESTIMONY WHERE THEY SAY HE SAYS THE FAMILY IS OUTSIDE
AND THEY'RE SUPPOSEDLY OUT THERE AND NOBODY CARES WHAT THEY HAVE TO SAY.
SO THE PROSECUTOR IS SAYING THEY TOLD YOU THAT THE PARENTS TOLD
YOU THAT THE POLICE DIDN'T WANT TO HEAR WHAT THEY HAVE TO SAY AND HE WAS TAKING
ADVANTAGE OF THE FACT THAT THE VIDEO WAS SHOWED THAT INDEED THE PARENTS
DID TRY TO SPEAK TO THE POLICE AND THEY WERE TOLD TAKE IT TO COURT, WE'RE NOT
INTERESTED IN HEARING WHAT YOU HAVE TO SAY AT THIS TIME. BUT
THEN THE PROSECUTOR ESSENTIALLY WENT FURTHER THAN THAT. BECAUSE FIRST HE WAS
ATTACKING WHAT THE POLICE ACTUALLY TOLD THE PARENTS WE'RE NOT INTERESTED
IN WHAT YOU HAVE TO SAY. BUT HAVING ESTABLISHED THAT FOUNDATION NOW WE MADE AN
EVEN GREATER ATTACK AND HE'S QUESTIONING WHETHER THE PARENTS WENT TO THE POLICE
AT ALL. NOT WHETHER THE POLICE SHUT THEM DOWN, BUT WHETHER THEY WENT TO THE POLICE
AT ALL. AND HE SAYS ON PAGE 142 AND I THINK THAT'S ON LINE SEVEN IF THIS
REALLY HAPPENED LIKE THAT, IN OTHER WORDS, THE DEFENDANT AT IN SELF-DEFENSE, YOU
RUNNING OUT THERE, REFERRING TO THE PARENTS, YOU RUNNING OUT THERE FOR
YOUR SON YOU'RE GOING TO TELL THE PEOPLE, THE POLICE AT THE SCENE, THE DETECTIVES
AT THE SCENE, THOSE CHARGED WITH INVESTIGATION THAT NO THERE'S SOMETHING ELSE
GOING ON HERE. BUT SHE NEVER DID. SHE NEVER DID, SHE NEVER DID AND THAT.
THE VIDEO WOULD HAVE REBUTTED ALL OF THOSE THINGS. THE PROSECUTOR
KNEW THE VIDEO WASN'T COMING IN AND HE TOOK UNPRINCIPLED ADVANTAGE OF THE EXCLUSION
OF THE VIDEO TO PAINT A DISHONEST PICTURE OF WHAT WENT ON. JUSTICE
LA VECCHIA: JUST TO PUT A FINE POINT ON IT YOUR POSITION WAS IN SUMMATION IT WAS
NOT SIMPLY MISLEADING IT WAS OUTRIGHT FALSE. MARCIA BLUM:
I BELIEVE SOME OF THE STATES WERE OUTRIGHT FALSE. JUSTICE LA
VECCHIA: I JUST WANT TO UNDERSTAND YOUR POSITION. THANK YOU.
MARCIA BLUM: LET ME QUALIFY. BUT PROSECUTORIAL MISCONDUCT IS NOT BASED ON
WHETHER THE PROSECUTOR LIED. PROSECUTORIAL MISCONDUCT IS -- IT'S NOT A
PREREQUISITE FOR FINDING PROSECUTORIAL MISCONDUCT. MERELY BEING MISLEADING, MERELY
PRESENTING AN INACCURATE PICTURE OF WHAT WENT ON IS SUFFICIENT. AS I FOUND
FOUL BLOWS ARE NOT. SO EVEN IF THE COURT FINDS THAT NO ONE SENTENCE WAS A FALSE
I BELIEVE THE COURT SHOULD AND HAVE TO FIND THAT IT WAS MISLEADING. THAT IT
TOOK UNPRINCIPLED ADVANTAGE OF THE EXCLUSION OF THE VIDEO, A MISLEADING PICTURE
TO THE JURY. AGAIN AS I SAID EARLIER WITH RESPECT TO THE FIRST POINT NOT A
TANGENTIAL ISSUE. JUSTICE LA VECCHIA: THANK YOU FOR THAT THAT
QUALIFICATION. MARCIA BLUM: THE QUESTIONS I'D LIKE TO SORT OF
CLOSE WITH REMINDING UP ABOUT {CASE CITED} WHICH TALKS ABOUT THE CONSTITUTION GUARANTEES
CRIMINAL DEFENDANTS TO PRESENT A COMPLETE DEFENSE, BUT THE COURT SAYS THAT
OPPORTUNITY WOULD BE AN EMPTY ONE IF THE STATE WERE PERMITTED TO EXCLUDE COMPETENT
RELIABLE EVIDENCE WITH SUCH EVIDENCE IS ESSENTIAL TO THE DEFENDANT'S CLAIM
OF INNOCENCE. IN THIS CASE NOT ONLY DID WAS MR. GARCIA FACTORS DNDZ THE OPPORTUNITY
TO PRESENT LIVE EVIDENCE TO ESSENTIAL TO HIS CLAIM OF INNOCENCE BUT THEN
THE PROSECUTOR EXPLOITED THE OMISSION OF THE EVIDENCE. AND ESSENTIALLY THE
CREDIBILITY -- THE DEFENDANT'S ABILITY TO DEFEND THE CREDIBILITY WAS JUST CUT OFF
AT THE KNEES WITH THE EXCLUSION OF THE VIDEO. AND WE'RE SAYING THAT IT'S
HIGHLY PREJUDICIAL AND WE'RE ASKING THE COURT TO REVERSE. CHIEF
JUSTICE RABNER: QUESTIONS, ANYONE? THANK YOU MS. BLUM. I'M GOING TO ASK ALL COUNSEL
IF YOU'RE NOT PRESENTING TO PLEASE MUTE UNTIL YOU WENT. WE'LL HEAR NEXT
FROM MS. THOMPSON. KAREN THOMPSON: GOOD MORNING.
CHIEF JUSTICE RABNER: A COUPLE OF ATTORNEYS NEED TO MUTE. PLEASE GO AHEAD.
KAREN THOMPSON: GOOD MORNING, MAY IT PLEASE THE COURT. AS MS.
BLUM ALREADY POINTED OUT, THIS IS A VERY VERY CLOSE CASE. THERE ARE TWO
CONFLICTING VERSIONS OF AN INCIDENT. I'D LIKE TO DRAW DOWN A LITTLE BIT ON HOW
THAT PROCESS DENIED MR. GARCIA HIS RIGHT TO A FAIR TRIAL. WE'RE FOCUSING ON THE
FALSE STATEMENTS THE PROSECUTOR NOTED IN HIS SUMMATION REGARDING THE GARCIAS
REACHING OUT TO THE POLICE. BUT THAT STATEMENT WAS ALSO EMBEDDED IN ADDITIONAL
LAYERS OF BIAS. AND THIS STARTS AT THE VERY INSTANCE OF LAW ENFORCEMENT
SHOWING UP AT THE SCENE, THE POLICE OFFICERS THERE DECIDED ALMOST IMMEDIATELY
THAT MR. GARCIA WAS A FAVORED SUSPECT, THAT IS THE BIAS IN DECIDING THAT HE WAS
GUILTY BEFORE SPEAKING TO HIM BEFORE QUESTIONING MUCH ABOUT THE CASE, UNDERMINED
THE TRUTH FINDING PROCESS FROM THE VERY VERY BEGINNING. MR. GARCIA WAS
IMMEDIATELY ARRESTED. HE'S TOLD THAT HIS PROTESTATIONS OF INNOCENCE WOULD MAKE
THINGS WORSE FOR HIM. THE DETECTIVE DECIDES RIGHT AWAY THAT THE CASE IS
CUT AND DRY AND THAT SHE KNOWS WHO THE VICTIM IS. WHAT THIS DOES IS IT TRANSFERS
LAW ENFORCEMENT'S OWN BIAS, IT TRANSFERS THE LACK OF INVESTIGATION AND THE
CONFIRMATION BIAS INTO SOMEHOW THE GARCIAS MORAL FAILING. THE PROSECUTION INTERPRETS
THAT KIND OF WALL OF REBUFFING THE GARCIAS AS EVIDENCE OF THEIR INABILITY TO BE
CREDIBLE AND THIS ALSO PLAYS OUT LATER ON IN THE PROSECUTION'S SUMMATION. WE'VE BEEN
TALKING VERY MUCH ABOUT THE INCIDENT WITH THE VIDEO. BUT ON PAGE 1:45 OF THE
TRANSCRIPT I DO WANT TO READ THIS AT LENGTH, THE PROSECUTOR SAYS I'M ASKING YOU
TO MAKE ANOTHER CREDIBILITY DETERMINATION, TO SIZE UP THE URBANSKIS IN THIS CASE.
ASK YOURSELF THIS. WERE THEY THE TYPE OF PEOPLE. JUSTICE
FERNANDEZ-VINA: CAN I ASK YOU A QUESTION. WHEN THE POLICE ARRIVED THERE WAS A PERSON
BLEEDING AND ONE WASN'T BLEEDING IT WAS SEVERELY CUT. IS THAT BIAS, USUALLY
THE PERSON THAT COMMITTED THE -- CAUSED THE BLEEDING IS THE PERSON HOOFGS THE
POTENTIAL DEFENDANT OR POTENTIAL PERSON WHO COMMITTED THE CRIME. IS THAT
BIAS OR POLICE TECHNIQUE AND WITH RESPECT TO THIS BIAS, OTHER THAN THE FACT THAT
MR. GARCIA WAS HISPANIC, WHAT PROOF DO YOU HAVE THAT THERE WAS BIAS THAT
AFFECTED THE ENTIRE INVESTIGATION SYSTEM. WE'RE NOT TALKING ABOUT PROSECUTOR'S STATES
AT TRIAL. I'M TALKING ABOUT AT THE SCENE WHICH IS WHERE YOU'RE TALKING ABOUT.
YOU'RE SAYING THERE WAS BIAS AND THAT'S WHY WAS INVESTIGATED. WHAT APPROVE DO YOU
HAVE? KAREN THOMPSON: THE ONE I'M SPEAKING ABOUT WITH REGARD
TO THE SCENE IS A CONFIRMATION THAT MR. GARCIA HAD CAUSED THE INJURY. AND NOBLE
KNEW THAT. NOBLE HAD ACTUALLY SPOKEN TO MR. GARCIA. IT WAS ALL BASED ON
MR. URBANSKI'S WORD AND HIS WORD WAS COMPLICATED. THE FACTS OF THE CASE DON'T
SHOW THAT THIS WAS CLEAR-CUT. MR. GARCIA HAD LEFT THE SCENE --
JUSTICE FERNANDEZ-VINA: THE SCENE IS WHERE IT'S MORE COMPLICATED. HE SAID THE
GENTLEMAN ATTACKED ME. KAREN THOMPSON: RIGHT BUT MR. GARCIA.
JUSTICE FERNANDEZ-VINA: THE LATER FACTS DEVELOP MORE DETAIL,
MORE BREADTH TO THIS BUT INITIALLY ALL THEY HAD WAS A STATEMENT FROM SOMEONE
BLEEDING THAT THE OTHER INDIVIDUAL ATTACKED HIM. SO AT THAT POINT HOW IS THAT
-- HOW DOES THE BIAS COME IN? KAREN THOMPSON: IT'S NOT MAKING ANY
ADDITIONAL EFFORTS TO DETERMINE IF THAT WAS, IN FACT, TRUE AND SINCE MR.
GARCIA'S ACCOUNT WAS THAT HE WAS ACTUALLY ATTACKED BY MR. URBANSKI I THINK THAT
BY ENDSING IT RIGHT THERE ON THE REST OF HIM AND ALSO ANYTHING THAT ANY EFFORT
TO DEFEND HIS POSITION OR PRESENT HIS RECITATION OF FACTS WOULD MAKE IT WORSE FOR
HIM, SHOWED THAT THE POLICE WEREN'T ACTUALLY INTERESTED IN TWEEZING OUT
THAT INFORMATION. I THINK THAT'S UNDERSCORE BY THE BEHAVIOR OF THE DETECTIVE.
WHO DOESN'T EVEN BOTHER TO SPEAK TO THE GARCIAS. THIS INCIDENT
HAPPENS IN STAGES. ONE OF THE STAGES HAPPENS ON AN ACTUAL GARCIA HOME. NOBODY
ATTEMPTS TO SPEAK TO THEM ABOUT WHAT UNFERRELLED THERE. I THINK
THE SUMMATION GOES DIRECTLY TO YOUR POINT, JUSTICE FERNANDEZ-VINA, BY SAYING WERE
THESE THE TYPE OF PEOPLE WHO TRIED TO COME IN AND PULL THE WOOL OVER YOUR
EYES. THIS IS THE PROSECUTOR REFERRING TO THE URBANSKIS. ARE THESE THE TYPE OF PEOPLE
TO LIE ABOUT THIS FOR WHAT PURPOSE. JUSTICE FERNANDEZ-VINA:
THAT WAS AT TRIAL. THE PROSECUTOR IS A WHOLE DIFFERENT ISSUE. I'M NOT TAKING
ISSUE WOMEN. I'M TALKING ABOUT THE INVESTIGATION. THE CAUSE OF THE STATEMENT
HAS NOTHING TO DO WITH THE INVESTIGATION. KAREN THOMPSON:
I DO BELIEVE THAT WAS -- THAT THE CLOSING STATEMENT DID GO BACK AND INCORPORATE
THE BIAS THAT IS BEING SHOWN IN THE INVESTIGATION AT THAT MOMENT.
JUSTICE FERNANDEZ-VINA: SO YOUR PROSECUTOR ADOPTED THE SOMETHING OF
THE INVESTIGATION IS THAT WHAT YOU'RE SAYING? KAREN THOMPSON:
YES. BY PRESENTING THAT TO THE JURY, BY SAYING LOOK THEY'RE NOT TALKING TO THE
POLICE HE'S ACTUALLY DOUBLING DOWN ON THE LAW ENFORCEMENT SHUTTING DOWN THE
KIND OF OPEN MIND TO WHAT ACTUALLY OCCURRED TO BE A MORAL ISSUE WITH THE GARCIAS
AND BY SAYING THAT THE URBANSKIS WERE NOT THE TYPE OF PEOPLE TO LIE, THIS
DOESN'T BECOME ABOUT WHAT THEY SAY, IT DOESN'T BECOME ABOUT HOW THEY ACT. IT
DOESN'T BECOME ABOUT THEIR TESTIMONY. IT BECOMES ABOUT WHO THEY ARE. AND
SO THE GARCIAS AND URBANSKIS ARE DIVIDED INTO TWO GROUPS. THE TYPE OF PEOPLE WHO
HIDE THINGS, THE TYPE PEOPLE WHO LIE. THE TYPE OF PEOPLE WHO SWEEP PEOPLE
UP IN A HORRIBLE VICIOUS ATTACK. THAT'S THE WORDS OF THE PROSECUTOR AND THOSE
MOO DON'T. AND THE URBANSKIS ARE IMMEDIATELY BELIEVED. THEY'RE BELIEVED
BY THE POLICE DESPITE THE FACT THAT THE URBANSKIS NEVER CALLED THE POLICE, MR.
GARCIA CALLS THE POLICE. THEY'RE BELIEVED DESPITE THE FACT THAT MR. URBANSKI
APPROACHES MR. GARCIA WITH ANOTHER MAN. CHIEF JUSTICE RABNER:
I'M SORRY TO INTERRUPT YOU. WE UNDERSTANDS YOUR POSITION ON BIAS AS
YOU ARTICULATED IT. AND WE HAVE THE TRANSCRIPT. TELL US THE REMEDY IN THIS CASE
YOU ARE SEEKING, THE SPECIFIC REMEDY. KAREN THOMPSON: I BELIEVE
THAT MR. GARCIA IS ENTITLED AND TO A NEW TRIAL BECAUSE THE DEPTH OF HOW THIS
BIAS IS COLORED WHAT THE JURY SAW, WHAT THE JURY HEARD SURROUNDED BY THIS ESSENTIAL
MISCONDUCT WHICH IS TO SAY THAT THE GARCIAS WERE INCREDIBLE, THAT THEY WERE
LYING, WAS ONLY DEEP PENNED BY ALL OF THE ADDITIONAL LAYERS OF THE ISSUES WITH
THE INVESTIGATION AND THE KIND OF MORAL FAILURE THAT IS PUT ON THE GARCIAS.
CHIEF JUSTICE RABNER: IS IT YOUR POSITION THAT ASIDE FROM THE QUESTION
OF THE ADMISSIBILITY OF THE VIDEO AND THE COMMENTS IN SUMMATION THAT DEFENSE
COUNSEL ARGUED JUST MOMENTS AGO, THE BIAS THE CHIEF IDENTIFIED IS A BASIS FOR
OVERTURNING CONVICTION ALONE? KAREN THOMPSON: I DON'T BELIEVE IT
NECESSARILY HAS TO -- TO BE CONSIDERED ALONE BUT I DON'T BELIEVE THEY'RE
INDIVISIBLE WHEN THE JURY IS HEARING ALL OF THIS INFORMATION IT COLORS HOW THEY'RE
MAKING THE CHOICE. AND IN THE CASE LIKE THIS WHERE THEY'RE DELIBERATING
ON THE QUESTION OF TWO STORIES ON WHOSE STORY IS MORE BELIEVABLE THEIR ABILITY
TO MAKE THAT DELIBERATION, THEY'RE FORCED TO READ INTO THE BASIS ITSELF
BY ENGAGING WITH THESE FORMS OF BIAS. SO THAT COLORS THE WAY THAT THEY ARE MAKING
THEIR DECISIONS, THE WAY THEY'RE INTERPRETING THE FACTS THAT ARE
PRESENTED TO THEM. AND TO THE POINT -- TO THE EXTENT THAT THE VIDEO WOULD SHINE
TRUTH AND LIGHT ON THE FACT THAT THE GARCIAS REACHED OUT TO THE POLICE, IT
ALSO SHINES THE LINE ON THE BECOMING BIAS BEING REBUFFED BY THE POLICE AND HAVING
THEIR STORY BE HEARD AS WELL. SO THESE ISSUES WHILE THEY SEEM.
JUSTICE FERNANDEZ-VINA: WHAT WAS THE COMPOSITION OF THE JURY, COUNSEL?
KAREN THOMPSON: I ACTUALLY I'M NOT SURE THAT I ACTUALLY DID ASK MS. BLUM
MYSELF. I DID WANT TO KNOW. AND MAYBE SHE CAN ANSWER IN HER REBUTTAL, IN THE
TIME THAT SHE HAS REMAINING. BUT WHEN WE TALK ABOUT THESE ISSUES,
THEY COLOR THIS PATTERN THAT OVER WHAT THEY PUT TO THE FACTS OF THIS CASE.
THE BIAS DOESN'T REMAIN HARMLESS. IT CREATES UNJUST CONDITIONS FOR DEFENDANTS.
AND IT PERMEATES HOW JUSTICE IS ABLE TO BE DONE. SO WHILE IT'S NOT THE
ONLY FACTOR, WHILE IT'S NOT PERHAPS EVEN THE MOST EGREGIOUS ISSUE IN THIS CONDUCT
IT CAN'T BE EASILY SEPARATED FROM -- JUSTICE ALBIN: COUNSEL,
THE BIAS THAT YOUR ARGUMENTS, CONFIRMATION BIAS ON THE SCENE, THE POLICE DECLARED
THAT THE DEFENDANT WAS GUILTY AND THE URBANSKIS WERE THE VICTIM. AND, THEREFORE,
SHUT DOWN THE DEFENDANT'S PARENTS FROM COMING FORWARD AND GIVING THEIR
ACCOUNT AT THE TIME. AND HAVING -- AND ONCE THEY DENIED THAT THEN THE PROSECUTOR
EXPLOITED THAT FACTOR IN SUMMATION. THAT'S BASICALLY YOUR ARGUMENT? AM I
MISTAKEN? KAREN THOMPSON: YES, YOUR HONOR, YES, JUSTICE.
CHIEF JUSTICE RABNER: ANYTHING YOU'D LIKE TO ADD?
KAREN THOMPSON: THAT'S IT. THANK YOU VERY MUCH. CHIEF
JUSTICE RABNER: THANK YOU. MR. MCGUIRE? DILLON MCGUIRE:
GOOD MORNING YOUR HONORS MAY IT PLEASE THE COURT. IN THE INTEREST OF EFFICIENCY
I WOULD ADOPT AND INCORPORATE THE ARGUMENTS OF MY COLLEAGUES AND FOCUS
JUST BRIEFLY ON THE PROSECUTORIAL MISCONDUCT AND THE CUMULATIVE ERROR POINTS IN
OUR BRIEF. THE ACL URGES THIS COURT TO REAFFIRM IMPORTANT HOLDING IN STATE V.
ROSS AND STATE V. SEXTON THAT PROSECUTORS CANNOT MAKE STATEMENTS THAT ARE CLEARLY
CONTRARY TO EVIDENCE OF WHICH THEY HAVE KNOWLEDGE, WHETHER OR NOT IT'S
ULTIMATELY ADMITTED OR EXCLUDED. THIS PRINCIPLE GOES TO REALLY GOES TO THE HEART
OF THE CRIMINAL DEFENDANT'S DUE PROCESS RIGHTS TO PRESENT A COMPLETE DEFENSE
AND TO HAVE HAVE A FAIR TRIAL. AND WHEN THE PROSECUTOR IS PERMITTED TO MAKE COMMENTS
LIKE THIS, YOU KNOW, REALLY TO THE ARGUE TO THE JURY THAT THEY COULD REJECT
A DEFENSE WITNESS' TESTIMONY WHEN THERE'S A VIDEO THAT SHOWS THAT THEY WERE TELLING
THE TRUTH REALLY UNDERMINES THE DEFENDANT'S RIGHT TO A FAIR TRIAL AND
THIS COURT HAS CONSISTENTLY SAID THE PROSECUTORS ARE HELD TO A HIGH STANDARD AND
FOR GOOD REASON. THEY HAVE A TON OF POWER AND THEY HAVE THE RESPONSIBILITY
TO WIELD IT FAIRLY. AND WHEN ALLOW A PROSECUTOR TO MAKE THESE TYPES OF COMMENTS
IT REALLY IN CASES LIKE THIS WHERE CREDIBILITY IS THE KEY ISSUE IT
UNDERMINES THE DEFENDANT'S RIGHT TO A FAIR TRIAL. AND I WOULDN'T BELABOR THE POINT
BUT WHEN WE LOOK AT THE SERIES OF ERRORS THAT OCCURRED IN THIS CASE, YOU KNOW,
IT REALLY DOES HAVE TO, YOU HAVE TO LOOK AT THE MOON FEFRT OF WHAT HAPPENED
HERE. THE VIDEO WAS EXCLUDED THE PROSECUTOR WAS THEN PERMITTED TO URGE THE
JURY TO REJECT THE FAMILY'S TESTIMONY THAT THEY CAME FORWARD, THAT THEY TRIED
TO TELL THE POLICE THAT, YOU KNOW, OUR SON DID ACT IN SELF-DEFENSE AND I THINK
THE IMPORTANT ASPECT OF THAT LOOKING AT THE ATTORNEY GENERAL'S BRIEF THEY
LAYOUT THE TRANSCRIPTION OF THE VIDEO AND ONE OF THE COMMENTS THE POLICE OFFICER
MAKES IS IF HE DID NOTHING WRONG HE WOULDN'T HAVE LEFT AND I THINK THE
JURY COULD REASONABLY INFER FROM THAT STATEMENT THAT THE FAMILY HAD, IN FACT, SAID HE
WAS ACTING IN SELF-DEFENSE. THERE'S NO OTHER EXPLANATION OF WHY THE OFFICER
WOULD MAKE THAT TYPE OF STATEMENT. AND THE FACT THAT THE JURY DIDN'T SEE THAT
REALLY CAUSED A HUGE ERROR HERE FOR THE DEFENDANT AND WE ASK THE COURT TO
REVERSE THIS CONTRADICTION AND REAFFIRM THE PRINCIPLE THAT PROSECUTORS CANNOT MAKE
COMMENTS LIKE THAT WHEN THEY KNOW OF EVIDENCE THAT STANDS FOR SOMETHING ELSE.
CHIEF JUSTICE RABNER: THANK YOU, MR. MCGUIRE.
MS. CAMPBELL. ERIN M. CAMPBELL: AT TRIAL THE STATE'S PROOF
SHOWED BEYOND A REASONABLE DOUBT THAT IN THE EARLY MORNING HOURS OF SEPTEMBER 11,
2016 THIS DEFENDANT SLASHED -- TO THAT SLASHING URBANSKI HIS WIFE JENNIFER
AND HIS BROTHER-IN-LAW JASON. THE DEFENDANT FLED THE SCENE WITH THE BOX CUTTER
WHICH WAS NEVER SEEN AGAIN. IT'S IMPORTANT TO NOTE THAT THIS SLOOD
WASN'T PRODUCED UNTIL AFTER THE STATE RESTED AT TRIAL AND THIS VIDEO
PURPORTED TO SHOW THE DEFENDANT'S FAMILY SPEAKING WITH POLICE AT THE SCENE. IT'S
UNCONTESTED THAT THOSE FAMILY MEMBERS DIDN'T SEE HOW THE CONFRONTATION
STARTED. AND IT'S ALSO UNCONTESTED THAT DEFENDANT LEFT THE SAFETY OF HIS VEHICLE
TO CONFRONT URBANSKI. THE APPELLATE DIVISION HERE PROPERLY HEALTH
THAT THE EXCLUSION -- PROPERLY UP SELDOM THE EXCLUSION OF THE VIDEO. THE
VIDEO HERE IS IRRELEVANT AND IT RISKS CONFUSING AND MISLEADING THE JURY. IN FACT,
THE TRIAL COURT SAID IT WAS CONCERNED THAT THIS VIDEO IS NOT RELEVANT TO
ANYTHING AND THE COURT ASKED REPEATEDLY BOTH THE DEFENSE COUNSEL IMPORTANTLY DEFENSE
COUNSEL WAS NEVER ABLE TO ARTICULATE A RULE UNDER WHICH THE VIDEO WOULD BE
ADMITTED INTO EVIDENCE. THIS VIDEO DID NOT HELP THE DEFENDANT'S SELF-DEFENSE CLAIM
BECAUSE IT WASN'T EVEN TAKEN UNTIL AFTER THE INCIDENT WAS OVER. THERE WAS
A PARENT A VIDEO WITHIN THE VIDEO OF THE VICTIM THREATENING THE DEFENDANT'S FAMILY
BUT ACCORDING TO THE TESTIMONY OF BOTH HIS SISTER AND HIS MOTHER THAT DIDN'T
OCCUR UNTIL AFTER THE DEFENDANT HAD LEFT THE SCENE. IT DIDN'T CONTRADICT THE TESTIMONY
OF DETECTIVE DOMENECH. IT SHOWS DOMENECH AT THE END VT VIDEO WALKING AROUND
WITH HER NOTEBOOK AND THE FAMILY IGNORING HER. WHAT THE VIDEO SHOWED WAS A PIECE
OF AN INTERACTION BETWEEN THE DEFENDANT'S FAMILY AND THE PAROLE OFFICERS.
AND THAT'S CONFUSING AND POTENTIALLY MISLEADING UNDER 403 BECAUSE THERE'S NO
CONTEXT FOR IT. IT PICKS UP IN THE MIDDLE OF THE SENTENCE WHERE THE PATROL
OFFICER IS STATING DEFENSES ARE FOR COURT. WE DON'T KNOW WHAT PRECEDED THAT FOR HOW
LONG IT WAS HAPPENING OR FOR HOW LONG IT CONTINUED. ADDITIONALLY THE
INFORMATION IN THAT SLOOD WAS POTENTIALLY DAMAGING TO DEFENDANT'S CASE. THE FAMILY
TOLD POLICE THAT THEY HAD A VIDEO SHOWING RAYMOND MAKING THREATS BUT DO THIS
DATE THEY NEVER PRODUCED IT. THE FAMILY STATED THE SISTER CALLED 9-1-1 AND THE
OFFICERS IN THE VIDEO REFUTED THAT. THE STATE MAID ADDITIONAL ARGUMENTS AS TO
WHY THE VIDEO WAS ADMISSIBLE, THAT IT WAS CUMULATIVE AND IT WAS NOT PROPERLY
AUTHENTICATED. HERE, THE APPELLATE DIVISION CORRECTLY FOUND
THAT THE VIDEO WAS NOT HEARSAY BECAUSE IT WASN'T OFFERED FOR ITS TRUE. THE VIDEO
IS OFFERED FOR THE TRUTH. THAT THE FAMILY APPROACHED LAW ENFORCEMENT WITH THEIR
VERSION OF THE STORY AND THEY WERE TO QUOTE, MOM PUSHED AWAY AND TO DAD QUOTE TOTALLY
IGNORED. IN ORDER FOR THE VIDEO TO BOLSTER THEIR CREDIBILITY THE CONTENTS
MUST BE TRUE. THEREFORE, THE TRIAL COURT PROPERLY FOUND THE HEARSAY RULE WAS TRISHGD
AND THE VIDEO MUST COME IN UNDER AN EXCEPTION. SHE TESTIFIED
THAT SHE NEITHER FOUND NOR WAS MADE AWARE OF OTHER WITNESSES AT THE SCENE. THE
VIDEO DOESN'T REFUTE THAT. FURTHERMORE IT'S IMPORTANT TO NOTE THAT
DEFENDANT'S MOTHER TESTIFIED OKAY DIRECT EXAMINATION THAT DETECTIVE DOME WAS AN
INVESTIGATOR. SHE WAS TASKED WITH INVESTIGATE AT THIS TIMING THIS CRIME.
MOM TESTIFIED THEY KNEW WHAT A DETECTIVE WAS AND THAT A DETECTIVE WAS DIFFERENT
FROM THE PAROLE OFFICER. SHE ADDITIONALLY TESTIFIED THAT SHE SAW DOMENECH
TAKING A STATEMENT FROM JENNIFER URBANSKI BUTT THAT SHE DID NOT APPROACH DOMENECH
HERSELF. THE VIDEO IS CUMULATIVE AND TESTIMONY MAY NOT BE REPEATED IT SHOW
THAT A WITNESS' VERSION REMAINS INTACT. FATS WHAT WE HAVE HERE. THE ONLY EFFECT
OF ADMITTING THIS VIDEO IS TO BOLSTER THE WITNESS' ELIGIBILITY CONSIDER. DISHLT
THE VIDEO WAS NOT PROPERLY AUTHENTICATED AT THE 104 HEARING. MR. SALGADO
NEVER LAID A FOUNDATION FOR HOW HE RECOGNIZED VOICES ON THE FICHL. NEVER ASKED
IF IT FAIRLY AND ACCURATELY ADDICTED HIS RECOLLECTION OR IF THE VIDEO HAD BEEN
ENDED ANY WAY. SALGADO TESTIFIED THROUGH AN INTERPRETER THAT HE DIDN'T UNDERSTANDS
ENGLISH. NO ONE EVER ASKED IF HE UNDERSTOOD THE CONTENT OF THE VIDEO.
NO VALID REASONS OFFERED FOR THIS VIDEO'S MISSION AND IT WAS PROPERLY EXECUTED
BY THE TRIAL COURT. ADDITIONAL THE APPELLATE DIVISION PROPERLY FOUND
THERE WAS NO ERROR NEXT CONCLUDEING IT. IT DIDN'T GO TO THE SELF-DEFENSE CLAIM.
THE EVENTS ON THE VIDEO WERE TESTIFIED TO AT TRIAL AND, THEREFORE, IN THE
CONTEXT OF THE ENTIRE TRIAL THE DEFENDANT WAS NOT PREJUDICED BY ITS EXCLUSION.
JUSTICE FERNANDEZ-VINA: DID THE VIDEO SHOW, IN FACT, THAT
THE FAMILY -- REGARDLESS -- EVEN IF IT SHOWED SILENT WITH NO COMMENTS, IT SHOWED
THAT THE FAMILY HAD APPROACHED THE POLICE AND IT NEGATED THE STATEMENT BY THE
PROSECUTOR THAT THEY NEVER APPROACHED THE POLICE. AND THAT'S NOT AN ISSUE, THAT
SIMPLY SHOWS THAL THEY APPROACHED THE POLICE AND WERE TURNED AWAY. SO,
THAT WOULD BE A HEARSAY ARGUMENT, THAT WOULD NOT FALL ANY OF THE RULES, 804. IT WOULD
SIMPLY SHOW THAT THEY APPROACHED THE POLICE AND THE POLICE HAD NO RECORD OF
ANYTHING THAT THEY PROPOSED AND WERE SAYING, IN FACT, THEY CAN APPROACH. WOULDN'T
THE VIDEO SIMPLY SHOW THAT? CAMP I THINK IT BECOMES EVEN LESS RELEVANT IF YOU
PLAY IT WITHOUT THE SOUND. THEY COULD HAVE BEEN TALKING TO THE POLICE ABOUT ANYTHING.
MOM HAD TESTIFIED THAT. JUSTICE FERNANDEZ-VINA: THE ARGUMENT
BY THE PROSECUTOR IS THEY NEVER APPROACHED THE POLICE WHETHER THEY WERE
TALKING ABOUT THE WEATHER OR WHAT THEY WERE HAVING FOR DINNER THEY DID APPROACH
THE POLICE IT AT LEAST HAD AN EFFECT NEGATING THAT ARGUMENT WITH THE
PROSECUTOR THAT THEY NEVER APPROACHED THE POLICE. WOULDN'T IT? CAMP THE IMPORT
OF THE ARGUMENT THAT THEY NEVER APPROACHED THE POLICE WAS THAT THE POLICE
WERE UNINTERESTED IN HEARING THE OTHER SIDE OF THE STORY. WE WATCHED THE VIDEO
ON SILENT. THEY COULD HAVE BEEN TALKING ABOUT ANYTHING. JUSTICE
FERNANDEZ-VINA: THEY WERE SYSTEM TALKING TO THE POLICE AND PROSECUTOR SAID THEY
NEVER APPROACHED THE POLICE. IT WOULD HAVE NEGATED THAT COMMENT, WOULDN'T
IT NOT? ERIN M. CAMPBELL: YOUR HONOR THIS IS AN ISSUE OF THE
COLDNESS OF THE TRANSCRIPT. IF THINK -- THEY'RE GOING TO TELL THE PEOPLE, THE POLICE
AND THEN THE PROSECUTOR CORRECT HIMSELF AND SAYS THE DETECTIVES AT THE SCENE.
THOSE CHARGED WITH THIS INVESTIGATION. JUSTICE ALBIN: COUNSEL, IT
-- YOUR ADVERSARIES ARE SAYING YOU MADE IT RELEVANT. YOU WERE ARGUING THAT
THE FAMILY DIDN'T COOPERATE, THAT'S WHAT YOU ARGUED. AND YET YOU KEPT OUT THE
VERY EVIDENCE YOU ARGUED TO KEEP OUT THE EVIDENCE THAT WOULD SHOW THAT THEY
WERE ATTEMPTING TO COOPERATE. AND PART OF THE TRANSCRIPT WAS IN THE EXCHANGE GO TO
COURT, BRING YOUR EVIDENCE TO COURT, THE COURT -- NO ONE WAS TAKING THE MOTHER,
THE FATHER, THE SISTER TO DOMENECH. THEY WERE TELLING GO TO COURT. SO THAT'S
THE ARGUMENT. YOU KEPT IT OUT AND YOU EXPLOITED IT. WHAT'S YOUR RESPONSE TO
THAT? ERIN M. CAMPBELL: YOUR HONOR, I WOULD ARGUE
THAT THE PROSECUTOR DIDN'T EXPLOIT IT. THE DEFENSE SUMMATION FOCUSED ENTIRELY ON THE
ONE-SIDED NATURE OF THIS INVESTIGATION, THE DEFENSE SUMMATION IGNORED THE
FACT THAT POLICE COME TO THIS CRIME SCENE. THEY SEEM A MAN WITH HIS FACE SLASHED
OPEN FROM EAR TO MOUTH. THE DEFENDANT IS GONE. HE'S NOWHERE TO BE SEEN.
JUSTICE ALBIN: THAT'S YOUR ARGUMENT FOR CONFIRMATION BIAS.
YOU KNOW, YOU'VE GONE ONE PERSON AND YOU DECIDE, THE OTHER PERSON IS GUILTY. WHEN
-- AND NOW THE DEFENSE IS ARGUING YOU SHOULD HAVE BEEN CANVASSING AND TAKING
STATEMENTS FROM EVERYONE. AND NOT LATER CLAIMING THAT THE FAMILY DIDN'T COOPERATE.
WHEN, IN FACT, THE VIDEO INDICATES OTHERWISE. GO AHEAD.
ERIN M. CAMPBELL: YOUR HONOR, I THINK THE DIFFERENCE BETWEEN THE VIDEO AND
THE TESTIMONY HERE IS THAT MOM TESTIFIED SHE KNEW WHO DOMENECH WAS. SHE KNEW
WHILE SHE WAS THERE. SHE SAW DOMENECH TAKING THE STATEMENTS. SHE KNEW
DOMENECH WAS THE ONE CHARGED WITH INVESTIGATING AND SHE MADE NO EFFORT TO
APPROACH. JUSTICE PIERRE-LOUIS: I'M HAVING TROUBLE WITH
THIS ARGUMENT THAT THE FAMILY AT THE SCENE HAS TO TALK TO THE THIS SPECIFIC PERSON.
THERE'S MANY LAW ENFORCEMENT OFFICERS AT THE SCENE. WE HAVE THE VIDEO SHOWING
THAT THEY WERE STANDING THERE SPEAKING TO SEVERAL LAW ENFORCEMENT OFFICERS. SO
BECAUSE THEY DID NOT SPEAK TO THE SPECIFIC DETECTIVE THAT WAS TASKED WITH
THIS INVESTIGATION THAT NEGATES THE FACT THAT THEY DID SPEAK TO THE POLICE, I MEAN,
I'M NOT -- I DON'T KNOW HOW THAT ARGUMENT IS PERSUASIVE. THE VIDEO REFUTES
WHAT DOMENECH SAYS THAT THERE WAS NO ONE ELSE AROUND AND NO ONE ELSE APPROACHED
THE LAW ENFORCEMENT; IS THAT RIGHT? ERIN M. CAMPBELL: YOUR HONOR
DOMENECH'S TESTIMONY IS NO ONE APPROACHED HER. THE IMPORT OF THIS IS THAT
THE GARCIAS KNEW WHO TO APPROACH AND THEY CHOSE NOT TO. I BELIEVE THE APPELLATE
DIVISION FOUND THAT IT WAS A FAIR INFERENCE TO DRAW THAT THEY DIDN'T APPROACH THE
RIGHT PERSON. JUSTICE PIERRE-LOUIS: SO IT DOESN'T MATTER
THAT THEY'RE TALKING TO POLICE ON THE SCENE. THEY'RE TALKING TO LAW ENFORCEMENT
OFFICERS ON THE SCENE AND THOSE LAW ENFORCEMENT OFFICERS TELL THEM THIS NOT THE
TIME WAIT TO GET TO COURT. THEY'RE TOLD WE DON'T WANT TO TALK ABOUT THIS
ANY LONGER. ; ISN'T THAT CORRECT, IN THAT WHAT HAPPENS IN THE VIDEO THE OFFICER
TELLS THEM THIS IS NOT THE TIME. ERIN M. CAMPBELL: THAT'S CORRECT
YOUR HONOR. I WOULD ARGUE THE POLICE AREN'T THERE TO DETERMINE WHETHER OR
NOT THE DEFENDANT HAS A VALID CLAIM OF SELF-DEFENSE. THAT IS FOR COURT. AGAIN THIS
IS A ONE MINUTE PIECE OF WHATEVER HAPPENED THERE. IT STARTS MID-SENTENCE
FROM THE OFFICER WE DON'T KNOW WHEN THIS INTERACTION STARTED AND WE DON'T KNOW
WHETHER IT ENDED. WE JUST HAVE THIS LITTLE PIECE IN THERE OF THE VICTIM
-- EXCUSE ME. JUSTICE ALBIN: THAT VIDEO EXPLAINS WHY THE MOTHER
DIDN'T GO TO DOMENECH, DIDN'T GO TO DOMENECH BECAUSE THE POLICE OFFICER IS SAYING
TAKE IT TO COURT. AND DOMENECH IS THEN GOING TO SAY, OH, NO ONE IS COMING TO
ME, NO ONE IS TALKING TO ME WHEN THE VIDEO IS EXPLAINING WHY THE MOTHER AND THE
FATHER ARE NOT SPEAKING TO HER. BECAUSE THEY WERE TOLD TO GO SOMEWHERE
ELSE. AM I WRONG ABOUT THAT? ERIN M. CAMPBELL: YOUR HONOR, IT DOESN'T
EXPLAIN WHY SHE DIDN'T GO TO DOMENECH IN THE FIRST PLACE KNOWING WHO DOMENECH
WAS AND WHY SHE WAS THERE. JUSTICE FERNANDEZ-VINA: IS THAT THE
PROTOCOL NOW WHEN YOU'RE A WITNESS AND THE POLICE I YOU ASK FOR THE HIGHEST
RANKING MEMBER WHO IS IN CHARGE OF THE INVESTIGATION, IF YOU SPEAK TO ANYONE ELSE
IT DOESN'T COUNT? ERIN M. CAMPBELL: IT IS NOT YOUR HONOR
BUT IN THIS CASE THE MOTHER VOLUNTEERED ON DIRECT THAT SHE KNEW WHO DOMENECH
WAS AND WHAT HER PURPOSE WAS IT BEING AT THAT SCENE. SHE SAW HER TAKING STATEMENTS
FROM OTHER WITNESSES. JUSTICE FERNANDEZ-VINA: YOU GO TO THE
HIGHEST PERSON BECAUSE IF YOU FEEK TO ANOTHER POLICE OFFICER YOU UNDERSTAND
THAT DOESN'T MATTER BECAUSE YOU HAVE TO SPEAK TO THE VICTIM IN CHARGE OR THE LEAD
INVESTIGATOR OR THE HIGHEST RANKING OFFICER. IS THAT WHAT CITIZENS ARE
REQUIRED TO DO NOW? ERIN M. CAMPBELL: NO, YOUR HONOR. IT'S THE
STATE'S POSITION THAT MOM KNEW WHO TO TALK TO AND DELIBERATE CHOSE NOT TO SPEAK
TO HER. BECAUSE MOM YOU CAN THE HIGH ARC TEA AT THAT SEEN SHE SHOULD HAVE SPOKE
TO DETECTIVE DOMENECH. CHIEF JUSTICE RABNER: THAT'S NOT THE
ARGUMENT THE PROSECUTOR MADE IN SUMMATION. WHEN YOU QUOTED THE PASSAGE
EARLIER YOU ADDED SOMETHING THAT THE PROSECUTOR CORRECTED HIMSELF. LET'S LOOK
AT WHAT WAS ACTUALLY SELDOM. YOU'RE GOING TO THE POLICE AT THE SCENE, THE
DETECTIVES AT THE SCENE BUT SHE NEVER DID. IS THAT AN ACCURATE STATEMENT? WAS
THAT A PROPER STATEMENT TO MAKE TO THE JURY? ERIN M. CAMPBELL:
I SUBMIT THAT IT WAS, YOUR HONOR. HE CLARIFIED HE SAID THE DETECTIVES AT THE
SCENE. THOSE CHARGED WITH INVESTIGATING WHICH MOM TESTIFIED SHE UNDERSTOOD
TO MEAN DETECTIVE DOMENECH. CHIEF JUSTICE RABNER: SO YOU'RE IN EFFECT
EDITING A TRANSCRIPT AS I SEE IT LOOKING AT IT COLE BECAUSE HE DOESN'T
REPUDIATE THE STATEMENT MOM NEVER SPOKE TO THE POLICE. YOU'RE JUST ASKING THAT
WE FOCUS ON THE LATTER HALF. NO? ERIN M. CAMPBELL: I'M ASKING
YOUR HONORS TO FOCUS ON THE LATTER HALF. IT SAYS THE PEOPLE, THE POLICE
AT THE SCENE AND THE DETECTIVES THOSE CHARGED WITH INVESTIGATING WHICH MOM TESTIFIED
SHE UNDERSTOOD TO MEAN DOMENECH. CHIEF JUSTICE RABNER: IF
WE READS THE LANGUAGE AS IT APPEARS IS IT INAPPROPRIATE IN THIS CASE FOR THAT
THE PROSECUTOR TO HAVE ARGUED MOM NEVER SPOKE TO THE POLICE AT THE SCENE?
ERIN M. CAMPBELL: MOM DID SPEAK TO THE POLICE IN THE VIDEO, HOWEVER, SHE
DIDN'T SPEAK TO THE PERSON THAT SHE KNEW TO BE INVESTIGATING AND THAT'S THE
DIFFERENCE HERE. JUSTICE PATTERSON: COUNSEL YOU MENTIONED THAT
THIS WAS NOT OFFERED FOR ITS TRUTH BUT IT WAS OFFERED FOR ITS TRUTH AND WAS, THEREFORE,
HEARSAY. I'M GOING TO ASK ABOUT THAT BECAUSE IF, IN FACT, THE DEFENDANT
WAS SEEKING TO OFFER THIS VIDEO FOR WHATEVER, THE VIDEO TO ME IT WAS CLEAR TO ME
IT WAS BEING SAID THAT THE DEFENDANT WANTED WHATEVER THE MOTHER WAS SAYING
TO THE OFFICER TO BE OFFERED FOR ITS TRUTH, I WOULD BE WITH YOU ON THAT. BUT I
GOT TO TELL YOU, THIS IS NOT, THE STATEMENTS WITHIN THE VIDEO ARE NOT OFFERED
FOR THEIR TRUTH AS FAR AS I CAN TELL. WHAT THEY'RE BEING OFFERED FOR IS
THE FACT THAT THERE WAS AN ATTEMPT TO COMMUNICATE. WHY IS THAT HEARSAY AS THE
TRIAL COURT SEEMED TO THINK IT WAS? ERIN M. CAMPBELL: BECAUSE, YOUR
HONOR, THE IMPORT OF THE STATEMENTS DEPENDS ON THEIR CREDIBILITY, THAT THE
DAUGHTER HAD BEEN CALLING 9-1-1. WELL, NO, SHE WASN'T. THAT THERE'S THIS VIDEO WITHIN
THE VIDEO OF THE VICTIM THREATENING THE DEFENDANT'S FAMILY. THAT VIDEO
HAS NEVER MATERIALIZED. JUSTICE PATTERSON: I UNDERSTAND WHY IT
GOES TO CREDIBILITY. BUT HEARSAY BY DEFINITION IS SOMETHING MORE FOR THE
TRUTH OF THE MATTER ASSERTED. IF IT'S NOT IN THAT CATEGORY YOU DON'T EVEN HAVE
TO GET TO THE SECTIONS OF THE HEARSAY RULE. SO THIS IS BEING OFFERED FOR
THE FACT THAT THERE WAS AN APPROACH TO POLICE BUT NOT OFFERED AS I UNDERSTAND IT
FOR THE TRUTH OF ANY STATEMENTS THAT MAY HAVE BEEN MADE TO THE POLICE ON
ANY OCCASION. DO YOU AGREE WITH THAT DISTINCTION? AND IF SO WHY IS IT
HEARSAY? ERIN M. CAMPBELL: I WOULD YOUR HONOR I WOULD ARGUE
THAT IT'S HEARSAY BECAUSE IN ORDER TO BOLSTER THE WITNESS' CREDIBILITY THE CONTENTS
OF THAT VIDEO HAVE TO BE TRUE. JUSTICE PATTERSON: BUT THAT
WOULD VIRTUALLY ANY CREDIBILITY INFORMATION IS HEARSAY I RESPECTFULLY
DISAGREE WITH THAT. I THINK, YOU KNOW, I WOULD BE A HUNDRED PERCENT WITH YOU IF
THE DEFENDANT SAID I'M SEEKING TO ADMIT THIS VIDEO BECAUSE YOUR MOTHER AND
AGAIN I WATCHED THE VIDEO IT'S A LITTLE UNCLEAR EXACTLY WHAT WAS SAID BUT YOU HEAR
THE MOTHER GIVING AN ACCOUNT OF THE EVENT AND THAT IS THE ACCOUNT AND,
THEREFORE, WE WANT THIS VIDEO IN THERE AND THEN YOU HAVE TO LOOK AT WHETHER IT'S WITHIN
AN EXCEPTION. BUT THAT'S NOT WHAT THEY WERE SEEKING. THAT REALLY ISN'T
WHAT THE VIDEO DOES FOR THEM ANY WAY. WHAT IT DOES SHOW AT LEAST, A COUPLE OFFICERS,
ONE SPEAKING TO THE WOMAN WHO WAS IDENTIFIED AS THE MOTHER, INTERACTING
AND VERY CLEARLY SAYING YOU HAVE TO TAKE IT TO COURT. I DON'T KNOW THE EXACT WORDS
BUT IT'S ALONG THOSE LINES. ERIN M. CAMPBELL: UNDERSTOOD
YOUR HONOR. I THINK WE HAVE TO KEEP IN MIND THAT WHEN DEFENSE COUNSEL PRESENT
THIS SLOOD SHE HAD NO IDEA WHY IT CAME IN AND THE TRIAL COURT REPEATEDLY ASKED
HER FOR WHAT PURPOSE DOES THIS VIDEO COME IN AND UNDER WHAT RULE. THAT WAS
NEVER ARTICULATED BY DEFENSE COUNSEL. THE TRIAL COURT WAS LEFT WITH ITS OWN DEVICES
TO TRY TO FIGURE OUT WHAT FRAMEWORK IT SHOULD BE ANALYZED AND THIS IS WHAT
HE DECIDED ON. JUSTICE ALBIN: THE OTHER APPROACH WAS OFFERED
TO MEET THE CHARGE OF FABRICATION. PART OF THE DEFENSE WITNESS WAS YOU WENT TO THE
ATTORNEY. THE WHOLE SUGGESTION THAT THE DEFENSE WAS CONTINUE CONDUCTED
AFTER THE FACT AND THE DEFENSE WAS OFFERING THE VIDEO TO SHOW, OH, NO, THEY WANTED
TO SPEAK ON DAY ONE AT THE MOMENT WITH THE POLICE. SO THAT IS AN ALTERNATE
HEARING. WHY IS NOT GOOD? ERIN M. CAMPBELL: WELL, YOUR HONOR, I
DON'T THINK IT PROVIDES AN ALTERNATE THEORY BECAUSE THE CROSS-EXAMINATION
OF MOM WAS SO NARROW BECAUSE SHE HAD VOLUNTEERED ON DIRECT THAT SHE KNEW WHO
DOMENECH WAS AND WHY SHE WAS THERE. THE VIDEO DOESN'T REFUTE THAT.
JUSTICE ALBIN: CAN YOU CONCENTRATE ON THAT SO THAT'S LIKE THE ONE PIECE THAT
COULD BE CONSIDERED AND EVERYTHING ELSE DISREGARDED. BUT SHE WAS QUESTION,
OH, ABOUT HER RELATIONSHIP, YOU DO ANYTHING TO HELP YOUR SON. I MEAN THE TYPICAL
QUESTIONS THAT ARE ASKED OF PARENTS THAT THEIR TESTIMONY SHOULD BE DISREGARDED
BECAUSE OF THE RELATIONSHIP AND ALSO ASKING DIDN'T YOU SPEAK WITH THE ATTORNEY
SUGGESTING THAT THE ATTORNEY SOMEHOW HELPED CREATE SOME SORT OF DEFENSE. THEY
WANT THIS VIDEO TO SHOW OH, NO BEFORE ANY ATTORNEY. THIS IS WHAT THEY WANTED
TO DO. THEY WANT TO TELL THEIR STORY TO THE POLICE. WHY DOESN'T THAT COME AS
-- EVEN UNDER THE EVIDENCE RULE AS -- ERIN M. CAMPBELL: THAT
BIAS STILL EXISTED ON SEPTEMBER 11, 2016. MOM TESTIFIED THAT SHE WAS UPSET
THEY WOULDN'T LET HER SEE HER SON AND I'M NOT QUITE SURE, AGAIN, BECAUSE THIS IS
JUST A PIECE OF THE INTERACTION THAT THEY HAD WITH POLICE THAT NIGHT WHEN THIS
COMES UP THAT THEY'RE SPEAKING WITH THEM. JUSTICE ALBIN: THAT'S
YOUR ARGUMENT. NO ONE IS SAYING YOU CAN'T MAKE IT. YOU CAN MAKE YOUR BIAS
ARGUMENT AT THE BEGINNING, END, SUMMATION. THEY WANT A CHANCE TO PRESENT THEIR
CASE WELL. THAT'S WHERE IT IS. NO? THEY DON'T HAVE A RIGHT TO PRESENT THEIR
CASE? ERIN M. CAMPBELL: JUDGE THEY PRESENT FIVE
DIFFERENT WITNESS TO TESTIFY AS TO WHAT HAPPENED AND THOSE WITNESS WERE HARDLY
INCONSISTENT WITH ONE ANOTHER. INCONSISTENCIES WHICH WERE POINTED OUT IN
SUMMATION AT FAR GREATER LENGTH THAN WAS GIVEN TO THIS THE FAMILY DIDN'T TALK
TO THE DETECTIVE ISSUE. JUSTICE LA VECCHIA: COUNSEL, IF TESTIMONY
OR A VIDEO BECOMES CUMULATIVE SIMPLY BECAUSE THERE WAS SOME NARRATIVE
TESTIMONY ON IT THEN WOULDN'T THAT SUBSTANTIALLY UNDERCUT THE ABILITY IT USE
VIDEO TESTIMONY? WHEN I LOOK AT THE TRANSCRIPT DEFENSE COUNSEL PLAINLY
SAID YOU WANTED TO QUOTE SUPPORT THEIR ASSERTION THAT THE POLICE OFFICER DID NOT
WANT TO TAKE THEIR STATEMENT AND THE VIDEO WENT DIRECTLY TO SUPPORT THAT
LINE OF ARGUMENT. TO THEN PILE ON A CUMULATIVE ARGUMENT, CUMULATIVE EVIDENCE ARGUMENT,
I THINK SHOULD BE -- IMPACTS THE DEFENSE I THINK. ERIN M. CAMPBELL:
YOUR HONOR, I DON'T WANT TO PUT TOO FINE A POINT ON IT BUT IT'S CUMULATIVE
BECAUSE THE WITNESS' VERSION THAT THEY DID NOT SPEAK TO THE RIGHT PERSON WASN'T
CHALLENGE DOLLARS. THE VIDEO JUST BOLSTERED WHAT THEY TESTIFIED TO.
JUSTICE LA VECCHIA: THE DEFENSE CAN STILL ARGUE THAT THE FAMILY DID TRY
TO SPEAK TO LAW ENFORCEMENT REPRESENTATIVES. CHIEF
JUSTICE RABNER: ANYTHING YOU'D LIKE TO ADD TO YOUR PRESENTATION, MS. CAMPBELL?
ERIN M. CAMPBELL: I'D LIKE TO ADDRESS THE PROSECUTORIAL
MISCONDUCT BRIEFLY IF I MAY. THE APPELLATE DIVISION PROPERLY FOUND THAT THE PROSECUTOR'S
COMMENTS COUNTERED DEFENSE COUNSEL'S ARGUMENTS THAT THE INVESTIGATION WAS
UNSIDED. AS I STATED HER CLOSING WAS FAIRLY BRIEF FOCUSED ON DOMENECH'S TESTIMONY
THAT SHE SPOKE WITH THE URBANSKIS AND NO ONE ELSE. SHE MISSTATED THAT RAYMOND
WENT TO THE CAR TO FIGHT. SHE REFERENCED HIS DEMEANOR. WHICH IS WHERE WE GET
THIS RESPONSE FROM THE PROSECUTOR THAT THE ACLU REFERRED. SHE CALLED THE
DEFENSE WITNESSES KREFBL AND CONSISTENT AND SHE PUT THE WEIGHT OF THE BIAS
ACCUSATIONS ON DOMENECH. THE PROSECUTOR'S CLOSING WAS MUCH MORE LENGTHY
AND BROAD AND AS THE APPELLATE DIVISION FOUND IT'S A FAIR INFERENCE TO DRAW THAT
THE DEFENDANT'S MOTHER DIDN'T SPEAK TO DOMENECH BECAUSE SHE HAD NO
INFORMATION FAVORABLE TO DEFENDANT TO OFFER. THE PROSECUTOR HERE HIGHLIGHTED THE
NUMEROUS INCONSISTENCIES WITH DEFENSE WITNESSES' TESTIMONY WHERE THERE WERE
TWO, THREE, FOUR OR FIVE ATTACKERS. BECAUSE EACH WITNESS TESTIFIED DIFFERENTLY.
WAS MOM PUSHED OR WASN'T SHE? AT WHAT POINT DID THAT HAPPEN. IT DIDN'T
CLARIFY ANY OF THE INCONSISTENCIES THAT THE PROSECUTOR HIGHLIGHTED, IN FACT, IT
DISPROVED NONE OF THE STATES MADE BY THE PROSECUTOR. THE PROSECUTOR CONFINED HIS
TESTIMONY -- HIS COMMENTS TO TESTIMONY ELICITED THROUGH PROPER
CROSS-EXAMINATION AND AS A RESPONSE TO THE ARGUMENT BY TRIAL COUNSEL THAT THE CHARGES
AGAINST DEFENDANT WERE THE RESULT OF A BIAS INCOMPLETE INVESTIGATION. THE
JURY HERE WAS FREE TO DISREGARD ANY INFERENCES THE PROSECUTOR WAS URGING HIM TO
DRAW AND IMPORTANTLY DEFENSE COUNSEL NEVER OBJECTED TO THIS TESTIMONY AT
TRIAL. IF COUNSEL DOESN'T OBJECT THEIR REMARKS WOULD NOT BE DEEMED PREJUDICIAL
DEFENSE COUNSEL DIDN'T BELIEVE THEY WERE PRESSURE AT THE TIME THEY WERE MADE.
THE ABSENCE OF A CONTEMPORANEOUS OBJECTION CAN LEAD TO A FAIR REFERENCE THAT IN THE
CONTEXT OF THE ENTIRE TRIAL THE STATEMENT WAS OF NO MOMENT. DIESHLTLY IT
APPRISED THE COURT OF AN OPPORTUNITY TO TAKE CURATIVE ACTION. IT DOES NOT RISE
TO THE LEVEL OF PLAIN ERROR. IT WAS NOT CLEARLY SO EGREGIOUS TO FAIRLY
EVALUATE THE MERITS OF HIS DEFENSE. THE VIDEO HAD NO IMPACT ON THE DEFENDANT'S
SELF-DEFENSE CLAIM AND HERE SUMMATION FOCUSED ON ONE THE DEFENDANT'S STORY AND
TWO THE INCONSISTENCIES AND THE DIFFERENT VERSUS TO WHICH HIS FAMILY TESTIFIED
NEITHER OF WHICH WAS RE FUFTD BY THE VIDEO. EXCLUDED EVIDENCE,
NOR CURES THE NUMEROUS MATERIAL INCONSISTENCIES IN HIS FAMILY'S TESTIMONY.
THE STATE WOULD ASK THIS COURT TO AFFIRM THE HOLDING OF THE LOWER COURTS AS WELL
AS THE DEFENDANT'S CONVICTION. DEBORAH BARTOLOMEY: I WOULD LIKE TO ASK
THE COURT TO LOOK AT THE SUMMATION COMMENT IN CONTEXT WITH THE PRIOR PARAGRAPH.
BECAUSE THE PROSECUTOR IS VERY CLEARLY POINTING OUT THAT HE IS MAKING A
DISTINCTION BETWEEN POLICE OFFICERS ON THE SCENE AND SPEAKING TO THE DETECTIVE.
AND BY DOING THAT, HE'S AS MUCH AS SAYING YES, THEY DID TALK TO THE POLICE. BUT
THEY SHOULD HAVE SPOKEN TO THE DETECTIVE. AND THE REASON THAT HE IS SAYING
IS THAT IS THAT THE DETECTIVE TESTIFIED THAT WHEN SHE GOT TO THE SCENE, SHE WAS
WALKING AROUND, SAYING, DID ANYBODY SEE THIS? DID ANYBODY SEE THIS? AND
NO ONE CAME UP TO HER EXCEPT THE PERSON SHE TALKED TO. SHE TALKED TO THE URS AND
SHE TALKS TO MRS. UR BUT YOU NO ONE IN DEFENDANTS CAME UP AND SAY WERE THEY
AN EYEWITNESS HAD THEY SEEN IT? SO THAT IS WHY AND THEN THE PROSECUTOR SAID TO THE
MOTHER, AFTER SHE HAD SAID ON DIRECT, OH I KNOW WHO THE DETECTIVE WAS, I KNEW
SHE WAS THE ONE INVESTIGATING. I NOW SHE WAS THE ONE TAKING STATEMENTS. AND HE
SAID YOU KNEW THAT BUT YOU NEVER WENT UP TO THE DETECTIVE. NOW, THAT'S
THE POINT HE'S TRYING TO MAKE. BECAUSE IN THE PRIOR PARAGRAPH HE SAYS I WANT TO
EMPHASIZE TO YOU THAT I THINK IT'S RELEVANT TO FIGURE OUT WHAT HAPPENED HERE.
THAT THE MOTHER KNEW THE DIFFERENCE BETWEEN POLICE OFFICERS AND DETECTIVE.
SHE KNEW POLICE OFFICERS DON'T HAVE THE SAME ROLE AND ON AND ON AND THEN IN THE
NEXT PARAGRAPH, HE SAYS, PLEASE SET THE SCENE THE DETECTIVES AT THE SCENE
WHICH I BELIEVE IN CONTEXT THAT MEANS HE'S CORRECTING HIMSELF. BECAUSE THAT IS
THE POINT HE'S MAKING. HE NEVER SAID THAT THE URS DID NOT TALK TO THE POLICE.
[!EZ SPEAKER 05]: YOU ARE SUGGESTING THIS A SLIP OF THE TONGUE?
AND NOTHING MORE. DEBORAH BARTOLOMEY: AND WE HAVE CASES THAT
SAY THAT. ONE WORD TO JUST HONE IN ON THAT AND AND SEES UPON THAT AND SAY HE'S
SAYING SOMETHING WHICH, IF HE HE WOULDN'T BE DISTINGUISHING BETWEEN POLICE
OFFICERS AND DETECTIVES IF HE DIDN'T ACKNOWLEDGE THAT THEY SPOKE TO POLICE OFFICERS
AT THE SCENE. SO WE DON'T NEED THIS VIDEO TO SHOW THAT. AND ALSO THIS SUMMATION
IS RESPONSIVE TO WHAT THE DEFENSE SUMMATION WAS WHICH IS, THIS WAS ACTUALLY A MOB
ATTACK, DEFENDANT INCIDENT DEFENSE HAD HIMSELF BUT THEY DIDN'T WANT TO HEAR
IT. THE POLICE DID NOT. JUSTICE ALBIN: YOU ARE MAKING SUCH A FINE
POINT. IF YOUR VIEW WERE CORRECT WHY DIDN'T THE PROSECUTOR HAVE SAID OH
YEAH THE FAMILY WENT TO THE POLICE THEY SPOKE WITH THE POLICE. BUT THEY DIDN'T
SPEAK WITH THE DETECTIVE. I MEAN THAT WOULD HAVE REALLY MADE IT CLEAR.
IF THAT'S THE CASE. AND THEN THAT WOULD HAVE TAKEN THE STATE OUT OF IT. BUT THE
FACT IS, YOU SUCCESSFULLY KEPT OUT THE VIDEO. AND THEN THE SUGGESTION IS
THEY DIDN'T COOPERATE AT ALL. AND I THINK THE CHIEF JUSTICE READ THIS AND AT THE BEGINNING AND THEN AGAIN THE FAMILIES OR ONE OF THE COUNSEL THEN AGAIN THE
TO SAY. IT'S ALMOST LIKE A MOCKING REFERENCE THAT YEAH, IF THEY HAD
SOMETHING TO SAY, THE POLICE OFFICERS WOULD HAVE TAKEN IT DOWN. AND THEN YOU HAVE
THE OTHER PARTS THAT ARE QUOTED. HOW DO YOU RESPOND TO THAT?
DEBORAH BARTOLOMEY: WELL, I WOULD SAY YOUR HONOR, THAT YOU ARE MAKING THE RECORD
IT ISN'T AS IF WE KNOW HOW HE SAID IT AND HE'S ALSO SAYING THIS IN RESPONSE
TO A DEFENSE SUMMATION WHICH IS SAYING THEY WOULDN'T LISTEN TO OUR STORY. AND
THEN AS FAR AS THIS VIDEO GOES, THE VIDEO DOES NOT SUPPORT THE DEFENSE. THERE'S
NO MENTION IN THIS VIDEO -- HERE'S THE MOTHER AND THE STEPFATHER AND THE SISTER
AND THE SISTER ADMITTED SHE WASN'T OUTSIDE DURING THIS EVENT. CUT THE MOTHER
AND THE STEPFATHER BOTH TESTIFIED THAT THEY WERE SURROUNDED BY AN ARMED MOB. AND
YET NOT ONE WORD ABOUT ANY ARMED MOB. THEY POINT TO A VIDEO THAT WAS TAKEN OF
THE VICTIM AFTER THE FACT RUNNING AROUND ANGRY, BLEEDING MAKING THREATS TO THE
FAMILY. YET THEY NEVER EVEN BRING THAT VIDEO IN. SO WHAT IS THE JURY TO THINK
ABOUT THAT? I MEAN TO ME, IF ANYTHING, THIS REFUTES THE DEFENSE BECAUSE
IF YOU'RE THERE RIGHT AFTER THE FACT AND YOUR SON WAS MOBBED BY A GANG OF ANGRY
ARMED MEN, GO AND YOU DON'T EVEN MENTION IT TO THESE OFFICERS AND THAT'S
ANOTHER THING, THIS CLAIM THAT THE OFFICERS DIDN'T -- JUSTICE ALBIN:
WHAT STORY COULD THEY HAVE GRIFFIN THEY'RE REPEATEDLY TOLD TO TAKE THE STORY TO
COURT THEY WERE SAID DON'T BOTHER IS I DON'T WANT TO HEAR IT TAKE IT TO
COURT LIKE WHY WOULD THEY GO ON ANY FURTHER I DON'T UNDERSTAND YOUR ARGUMENT.
DEBORAH BARTOLOMEY: YOUR HONOR I WATCHED THE VIDEO SEVERAL TIMES
AND WHAT I SAY WERE TWO POLICE OFFICERS VERY PATIENTLY LISTENING TO CITIZENS,
DISCUSSING WHAT THEY SAY, MAYBE NOT AGREEING WITH WHAT THEY SAID.
OBVIOUSLY THE ONE OFFICER WAS VERY SKEPTICAL ABOUT THEY CALLED THE POLICE AND
SAID OH WE GOT ONE CALL ON THIS. BUT THEY WERE TALKING TO THE PEOPLE, ENGAGING
WITH THE PEOPLE. NOW THEY POINTED TO THE VIDEO, NOW REMEMBER THE SISTER HAD TESTIFIED
THAT TWO OFFICERS ACTUALLY HAD WATCHED THE VIDEO. AND BUT THEY WEREN'T
VERY IMPRESSED BY IT. LA ISN'T IT TRUE THAT NOT ONLY THE DETECTIVE IN HER TESTIMONY
NOT REFLECT THAT THE FAMILY SPOKE TO HER BUT ALSO THE POLICE REPORTS DID
NOT INDICATE THAT THE FAMILY WILL SPOKEN TO THE POLICE, JUST THE FAMILY WAS TRYING
TO SAY THEY DID AT TRIAL. SO DON'T WE HAVE TWO PIECES OF EVIDENCE IN THE
STATE'S CASE AS TRYING TO PUSH THIS NARRATIVE THAT THE DEFENSE WAS TRYING TO
RESPOND TO BY USE OF THE VIDEO? DEBORAH BARTOLOMEY: I THINK,
YOUR HONOR, I WOULD, WHEN I SEE IT, I SEE THE DEFENSE SAYING YOU DIDN'T
WANT TO TALK TO US OR HEAR ABOUT US OR HEAR WHAT WE HAD TO SAY. AND MAYBE THE
FAMILY CAME FORWARD. THE SPEAKER: BUT WHAT WERE WE TALKING
ABOUT THEY WERE TALKING ABOUT WHO WAS GOING TO PUT DEFENDANTS CAR IN THE DRIVEWAY
WHO CALLED THE POLICE AND THAT WAS A LITTLE BROTHER. NOT ONCE DO WE HAVE ANY
INDICATION THAT ANY ONE OF DEFENDANTS FAMILY TALKED ABOUT THIS MOB ATTACKING
HIM. JUSTICE LA VECCHIA: THE POLICE OFFICERS DO NOT CONTAIN
ANY REFERENCE TO THE CONVERSATIONS WITH THE FAMILY. DEBORAH
BARTOLOMEY: LIKE I ASSUME, I DON'T KNOW. I HAVEN'T SEEN THEM. BUT I WOULD ASSUME
THAT THAT THERE WAS NOTHING AT LEAST IN THIS VIDEO IN WE SAW THAT WOULD
MAKE ITS WAY INTO A POLICE REPORT NECESSARILY BECAUSE THEY'RE FOCUSED ON WHO
WAS IF VICTIM AND WHO IS THE PERPETRATOR AND THEY. JUSTICE
FERNANDEZ-VINA: THAT'S NOT RELEVANT TO AN INVESTIGATION A STATEMENT FROM SOMEONE
IN THE AREA AS TO WHO WAS A VICTIM AND THE PERPETRATOR YOU DON'T THINK THAT
IS RELEVANT TO THE INVESTIGATION. DEBORAH BARTOLOMEY: I DON'T THINK
IT'S RELEVANT WHEN THEY COME FORWARD AND THEY SAY WE CALLED THE POLICE AND
WHEN CAN THE POLICE ARE SAYING YOU DIDN'T CALL THE POLICE. THEY WEREN'T EYEWITNESSES.
WE KNOW THAT BECAUSE. JUSTICE FERNANDEZ-VINA: HOW DO WE KNOW
THAT? THE POLICE SAID THEY. DEBORAH BARTOLOMEY: BECAUSE DECK
DOCUMENT. JUSTICE FERNANDEZ-VINA: WAS THE DETECTIVE
THERE TO SEE WHO WITNESSED IT? DEBORAH BARTOLOMEY: THAT'S WHAT THEY
SHE SAID. JUSTICE FERNANDEZ-VINA: THERE WERE ALL THE
DETECTIVE WAS STANDING BY AND OBSERVED IT. DEBORAH BARTOLOMEY: NO NO, YOUR
HONOR. JUSTICE FERNANDEZ-VINA: THAT'S WHAT YOU WERE SAYING TO ME
IT SOUNDED LIETH. DEBORAH BARTOLOMEY: I'M SORRY WHAT I MEANT TO
SAY WAS WHEN THE DETECTIVE GOT TO THE SCENE, SHE WENT AROUND SOLICITING EYEWITNESS
ACCOUNTS AND NONE WERE FORTHCOMING FROM ANYBODY IN DEFENDANT'S FAMILY. AND,
LET'S ALSO PUT THIS IN THE CONTEXT OF I SAW THE STATE'S EXHIBITS, THE PHOTOGRAPHS
OF THE DEFENDANT AND OF THE VICTIM THAT NIGHT OF THE AND I HAVE TO SAY THAT,
THIS IS WHAT THE JURY SAW AND THAT WAS -- THE VICTIM'S IT WAS PRETTY OR IFING HE WAS
HORRIBLY CUT UP AND WOUNDED WHEREAS THE DEFENDANT HAD LYING A LITTLE MARK ON
HIS HEAD. SO THAT INFORMS THE JUDGMENT OF THE POLICE. JUSTICE
FERNANDEZ-VINA: SOMEONE STARTED A FIGHT AND LOST IT? DEBORAH
BARTOLOMEY: NO. JUSTICE FERNANDEZ-VINA: DOESN'T NECESSARILY
HAVE TO BE THE VICTIM SOMETIMES THEY SAY THE PERSON STARTS IS THE FIGHT AND LOSES
IT. DEBORAH BARTOLOMEY: WELL THAT IS POSSIBLE AND THEY GAVE
ALL THEIR TESTIMONY. THEY TALKED ABOUT THIS MOB. TALKED ABOUT HOW DEFENDANT WAS
CHASED DOWN THE STREET. EVERY PERSON THAT CAME IN ON ON THE DEFENDANTS
SIDE HAD A DIFFERENT NUMBER. THE SOURCE WAS -- THE JURY WAS ABLE TO ASSESS I THINK
BASED ON ALL THE TESTIMONY, TO WHICH THIS WAS RESPONSIVE THIS SUMMATION.
CHIEF JUSTICE RABNER: THERE'S A PASSAGE AN IN THE VIDEO ONE MINUTE AND 2 SECONDS
AS I RECALL, THERE'S A PASSAGE I BELIEVE IN WHICH THE DEFENDANT STEPFATHER
SAYS, WHAT HAPPENED, THIS GUY, THAT SHORTER GUY OVER THERE, HE GOT A KNIFE. IS
IT YOUR POSITION THAT THAT'S INCULPATING OR EXCULPATING THE DEFENDANT? DOES
THAT BARE ON SELF-DEFENSE? DEBORAH BARTOLOMEY: TO ME I THOUGHT THAT
WHAT HE WAS SAYING THAT HE SAID HE IS GOING TO KILL THE WHOLE FAMILY.
THERE'S FOUR, THERE'S LIKE FOUR WORDS HE GOT A KNIFE THAT SHORTER GUY. I THOUGHT
WHAT HE WAS SAYING BUT SEEMS LIKE TO ME IS THAT THE VICTIM WAS SAYING THAT
THE DEFENDANT HAD A KNIFE AND THAT HE WAS GOING TO KILL THE WHOLE DEFENDANT'S FAMILY
AND LET'S PUT THIS IN CONTEXT. JUSTICE FERNANDEZ-VINA: SHOULDN'T
THE RIGHT YOU WEREN'T ON JURY SHOULDN'T THAT BE GO FOR THE JURY FOR THEIR
ASSESSMENT AND CREDIBILITY AS FACTS AND NOT YOU I UNDERSTAND WHAT YOU THOUGHT BUT
SHOULDN'T THAT HAVE GONE TO THE JURY TO DECIDE. DEBORAH
BARTOLOMEY: IT WAS IRRELEVANT, YOUR HONOR. AND IT BRINGS OUT SO MANY PROBLEMS.
JUSTICE FERNANDEZ-VINA: HOW IS IT IR YOU JUST GIVE A DISSERTATION
WHAT YOU THOUGHT IT MEANT WE CAN'T HAVE IT BOTH WAYS COUNSELOR.
DEBORAH BARTOLOMEY: I WAS JUST RESPONDING TO YOUR HONOR'S QUESTION ABOUT WHAT THE
VIDEO MEANT BUT I THINK AT ALL I SEE NOTHING THAT GOES TO SELF-DEFENSE IN
THAT VIDEO. I SEE THE PARENTS OF THE DEFENDANT ARE TALKING. THEY'RE SAYING THINGS
TO THE POLICE, THE POLICE ARE RESPONDING TO THEM. AND THEY ARE TRYING TO SAY
OH WELL THEY TOLD US TO GO AWAY PLEASE DIDN'T TELL THEM TO GO WHOA THE POLICE
OFFICER SAYS -- JUSTICE ALBIN: LET'S STOP COUNSEL LET'S STOP
RIGHT THERE I'M LOOKING AT PAGE 94 OF OF THE TRANSCRIPT OF THE VIDEO. I WANT YOU
TO COMMENT ABOUT IT. I'LL READ FROM IT. IT'S THE STEPFATHER STEPFATHER.
I'M GOING TO READ IT. I'VE GOT A RECORD FOR THE CALLING A RECORD FOR CAN CALLING
I GOT A VIDEO THIS GUY IS SAYING HE'S KILLING AND THEN HIS PARENTS
INDISCERNIBLE POLICE OKAY YOU TAKE THAT COURT. TAKE THAT TO COURT WHEN YOU GO TO
COURT WHEN YOU GO TO COURT YOU TAKE IT TO COURT. WHAT THIS GUY SAID, OKAY.
THE SPEAKER: AND THEN THIS GUY THIS GUY NO COMMENT, TAKE THE TAKE IT COULD
COURT. THEY DON'T SAY TAKE IT TO DECK DOCUMENT WHO'S SUPPOSEDLY IS CONDUCT GO
THE INVESTIGATION. TAKE IT TO COURT. AND THEN LATER IN THE SUMMATION,
THE PROSECUTOR SUGGESTED THEY WEREN'T COOPERATING. BOY, IF YOU HAD A STORY
WOULDN'T YOU BE TELLING THE POLICE? SO WHAT DO YOU HAVE TO SAY ABOUT THE
PART I JUST READ? DEBORAH BARTOLOMEY: THE PART THAT YOU JUST
READ. THEY'RE REFERRING, THE STEPFATHER IS REFERRING TO A VIDEO OF THE VICTIM,
POST CRIME. WHICH IS NOTHING TO DO WITH WHAT'S HAPPENING ON THE STREET THAT NIGHT.
BECAUSE THEY WANT TO KNOW WHO IS THE PERPETRATOR, WHO SHOULD BE ARRESTED.
THE FACT THAT AFTER THE FACT THE VICTIM WHO HAD HIS FACE SLASHED IS ANGRY MAKING
THREATS, AND THE FAMILY TAKES A VIDEO OF HIM, THE POLICE APPARENTLY THOUGHT
THAT THAT WAS SOMETHING THEY SHOULD TAKE TO COURT, MAYBE THEY WOULD WANT TO PUT
IT IN EVIDENCE FOR SOME REASON. BUT IT HAD NOTHING TO DO WITH WHO'S THE
PERPETRATOR OR NOT. IF THEY HAD SAID -- JUSTICE ALBIN: SO THE POLICE
WOULDN'T HAVE BEEN CONCERNED EVEN AFTER THE FACT UR WAS THREATENING TO KILL
THE FAMILY? NO CONCERN ABOUT THAT? DEBORAH BARTOLOMEY: I THINK WHEN
YOU ARE LOOKING AT A VIDEO OF A MAN WITH HIS FACE BASICALLY SLICED IN HALF
AND BLEEDING UNDER HIS HIS ENTER I CAN'T AND SHOCK AND BAY THE WAY YOUR HONOR OUR
WITNESSES ALL ADMITTED TO THAT OUR WITNESSES TESTIFIED THAT HE WAS
HISTORICAL HE RAN UP ON RAGE ON PORCH HE THREATENED THE FAMILY AND HE HAD TO
GRAB HIS T-SHIRT AND TAKE HIM OFF THE PORCH SO THIS ISN'T ANYTHING NEW. THIS ISN'T
ANYTHING THAT HAS TO BE SHOWN TO THE JURY ABOUT REBUT ANYTHING BECAUSE THIS WAS
THE EVIDENCE ALL THE LONG. EVERYBODY TESTIFIED ABOUT THIS ON OUR SIDE. SO, EXCEPT
FOR THE DETECTIVE WHO WASN'T THERE BUT THE VICTIM AND HIS WIFE, YOU KNOW,
THIS IS SOMETHING THAT WAS CONCEDED. SO I FAIL TO SEE ANY PREJUDICE TO THE
DEFENSE BY NOT HAVING THIS CONVERSATION. CERTAINLY THE STUFF ABOUT WHAT'S
HAPPENING TO DEFENDANT'S CAR IS IRRELEVANT. YOU KNOW, WE -- THIS ACTUALLY, I THINK
THE FACT THAT THE POLICE OFFICER OUT AND OUT SAYS THEY DIDN'T CALL THE POLICE,
WE GOT ONE CALL. THAT ACTUALLY SHOOTS A FEW HOLES IN THE DEFENSE STORY BECAUSE
THEY WERE ALL SAYING THEY CALLED THE POLICE. SO I DON'T THINK THE VIDEO
WAS AT ALL HELPFUL TO THE DEFENSE. AND I THINK THE PROSECUTORS SUMMATION WAS CLEARLY
RESPONSIVE TO THE DEFENSE COMMENTED ON THE EVIDENCE, WHAT HE SAID WAS, I THINK,
PRETTY CLEAR. I MEAN MAYBE IT'S NOT YOU KNOW, MAYBE IT'S PEOPLE WOULDN'T AGREE
WITH THE POINT. WELL, THEY COULD TALK TO ANYBODY AND THAT'S TRUE. IF THEY
RAN UP TO ONE OF THOSE POLICE OFFICERS AND THEY SAID LOOK, WE WERE BEING ATTACKED
BY A MOB, IT'S NOT LIKE YOU THINK THIS IS WHAT HAPPENED, THEN I WOULD SAY,
SURE, PUT THE VIDEO IN. AND ALSO I WOULD ASSUME THAT THOSE POLICE OFFICERS ON THE
STREET HAD THEY HEARD THAT, YES, THEN THEY WOULD HAVE CALLED DOMENECH OVER
DETECTIVE DOMENECH AND SAID YOU KNOW, THERE'S SOMETHING LEADING UP TO THIS SO IT'S
NOT WHAT IT LOOKS LIKE OR WHAT ARE. BUT THEY NEVER SAID ANYTHING LIKE THAT.
JUSTICE SOLOMON: I DON'T WANT TO PROLONG WE'RE SORT OF RELIT
RELAYING THE WHOLE KAY YOUR ARGUMENT IS THE VIDEO WAS PROPERLY EXCLUDED OF THE
CORRECT? DEBORAH BARTOLOMEY: YES. JUSTICE
SOLOMON: IT WAS PROPERLY EXCLUDED BECAUSE IT WAS HEARSAY AND IRRELEVANT. TO ANY
MATERIAL ISSUE CORRECT. DEBORAH BARTOLOMEY: CORRECT YES.
JUSTICE SOLOMON: THE DEFENSE POSITION IS SIMPLY THAT IT IS RELEVANT AS TO
CREDIBILITY SINCE THIS WAS TWO PEOPLE WITH VERY DIFFERENT VIEWS OF WHAT HAPPENED
THAT NIGHT AND VERY DIFFERENT STORIES. CORRECT? DEBORAH
BARTOLOMEY: CORRECT. JUSTICE SOLOMON: FORGETTING WE KNOW THEY
DIDN'T SEE THE FIGHT WE KNOW THOETH SAW THE AFTERMATH WE KNOW IT'S NOT RELEVANT
TO WHAT WAS HAPPENING IN THE ALTERCATION. IS IT RELEVANT TO THE CREDIBILITY OF
THE DETECTIVE WHEN THEY SAY NOBODY TOLD ME ANYTHING THERE WERE NO OTHER
WITNESSES TO TALK TO. IN ORDER IS IT RELEVANT TO ANY ISSUE OF CREDIBILITY WITH
RESPECT TO ANY WITNESS IN THIS CASE, WHETHER IT'S MOM, STEPFATHER, AND
MOTHER, WHETHER IT'S THE INVESTIGATOR, IS IT RELEVANT TO ANY ISSUE?
DEBORAH BARTOLOMEY: WELL, I WOULD SAY -- JUSTICE SOLOMON: CREDIBILITY.
DEBORAH BARTOLOMEY: -- DOES NOT SUPPORT THE CREDIBILITY OF THE
DO NOT SUPPORT THE CREDIBILITY OF THE STEPFATHER. IT DOESN'T AFFECT EITHER WAY
THE CREDIBILITY OF THE DETECTIVE. THE DETECTIVE CAN BE SEEN WALKING BY
AND SHE'S DOING EXACTLY WHAT. JUSTICE SOLOMON: THAT'S AN ARGUMENT
ABOUT WHETHER IT DOES AFFECT IT. BASED UPON THE DEFENDANT'S ASSERTIONS
IS RELEVANT TO CREDIBILITY ONLY BECAUSE THE PARENTS SAID WE TRIED TO TALK TO THEM
BUT THEY WOULDN'T TALK TO US AND THE INVESTIGATOR SAID, NOBODY TALKED TO
US. IS IT RELEVANT TO THAT? JUST CREDIBILITY. FORGET THE PROSECUTOR'S ARGUMENT
IN CLOSING FORGET ABOUT THE COMMENT GIVEN ALL THE BENEFITS OF THE DOUBT CREDIBILITY
IS ALWAYS AN IMPORTANT ISSUE AT TRIAL IS IT ONLY ON THAT ONE NARROW POINT
IF THEY REALLY CARED THINGS WERE REALLY AWFUL WOULDN'T THEY HAVE TRIED TO TALK
TO ANYBODY? IS IT RELEVANT TO THAT CREDIBILITY ISSUE?
DEBORAH BARTOLOMEY: SHOWING THAT THEY SPOKE TO THE POLICE? AT ALL.
JUSTICE SOLOMON: THEY TRIED TO TALK TO THE POLICE AND AS JUSTICE ALBIN SAID,
THE POLICE SAID TAKE IT TO COURSE. KIND OF BLEW THEM OFF. IS THAT THE
CREDIBILITY QUESTION THAT THAT VIDEO BEARS UPON? I DON'T CARE WHAT WAS SAID ON THE
VIDEO I DON'T CARE WHETHER THEY WITNESSED THE ACCIDENT I DON'T CARE WHAT
HAPPENED BEFORE I DON'T EVEN CARE WHAT HAPPENED AFTER JUST THE ISSUE OF THE
CREDIBILITY OF THE DETECTIVE AND THE PARENTS ON WHETHER THEY SPOKE TO ANYBODY.
IS IT RELEVANT TO THAT ONE CREDIBILITY ISSUE? DEBORAH
BARTOLOMEY: WELL, TAKEN COMPLETELY OUT OF CONTEXT ABOUT WHAT THEY SAID JUST WHAT
THEY SAID AND EVEN THOUGH THAT'S NOT AN ISSUE AT ALL IN THE CASE BECAUSE
EVERYONE ACKNOWLEDGED THEY WELL SPOKEN TO THE POLICE. SURE. YOU KNOW I GUESS
ANYTHING THAT SHOWS YOU DOING SOMETHING THAT EVERYBODY KNOWS YOU MAY HAVE
[ENTER]. BECAUSE AGAIN YOUR HONOR, WE DID NOT CONTEST AT ALL THAT THEY SPOKE TO
POLICE OFFICERS THAT WAS THE POSSIBLY TO THE PROSECUTORS ALL OF THEN MAYBE YOU
DID SPEAK TO POLICE OFFICERS BUT YOU SHOULD HAVE THEY DIDN'T SAY SHOULD
THEY SAID YOU NEVER DID AND I THINK THAT'S TELLING AND I THINK THE JURY SHOULD
LOOK AT THAT. AND I'M NOT SAYING THAT EVERYONE MUST ACCEPT THAT ARGUMENT.
I'M SAYING IT'S A LEGITIMATE ARGUMENT. THAT IT'S BASED ON THE EVIDENCE AND THAT
IT'S RESPONSIVE. SO THIS VIDEO. JUSTICE SOLOMON: NOT BASED
ON NOT SAYING IT'S NOT A LEGITIMATE ARGUMENT. DOES THE VIDEO RAISE THE
QUESTION WHEN THEY GO UP TO THE OFFICERS, DETECTIVES WALKING AROUND IN THE BACKGROUND,
THEY GO UP TO THE OFFICERS AND THEY TRY TO TELL THEM SOMETHING ABOUT WHAT
HAPPENED. MOB ATTACKED BANKING DOWN THE DOOR CAME ON THE PORCH BANG HAD ON THE
DOOR TRY TO THEY WILL THEM AND THE OFFICER SAYS TAKE IT TO COURT IS IT RELEVANT
TO CREDIBILITY EITHER OF THE, THE DETECTIVE, THE POLICE OFFICER, THE PARENTS.
DEBORAH BARTOLOMEY: YOUR HONOR, I DON'T THINK THEY WERE TRYING TO --
JUSTICE SOLOMON: YOU ARE NOT THE JURY. I'M AN 80 I'M SITTING UP THERE.
TRYING TO GIVE ME THIS VIDEO PROSECUTOR IS OBJECTING. CREDIBILITY IS ALWAYS AN
ISSUE IF IT'S BEARS UPON CREDIBILITY AND JURY HAS TO MAKE A CREDIBILITY ASSESSMENT
IT'S ALWAYS AN ISSUE AND I'M SITTING UP THERE AS A JUDGE. PROSECUTOR, DOES IT
IN ANY WAY BEAR UPON THEIR STORY THAT WE TRIED TO TALK TO THE INVESTIGATOR
OR TRIED TO TALK TO THE POLICE OFFICERS? THEY BLEW US OFF SAID TAKE IT TO COURT.
THE DETECTIVE DIDN'T TALK TO US AND WE DIDN'T TRY TO TALK TO THE DETECTIVE
BECAUSE THE OFFICER SAID TAKE IT TO COURT. IS IT PERTINENT TO THAT ISSUE? AND
IS THAT A CREDIBILITY ISSUE? ALL I WANT TO KNOW YES OR NO?
DEBORAH BARTOLOMEY: I WOULD HAVE TO SAY NO IT DOESN'T SUPPORT THEIR CREDIBILITY
BASE IT'S A COMPLETELY DEALERSHIP. JUSTICE FERNANDEZ-VINA:
607-B EVERYBODY IS TALKING ABOUT HEARSAY. ISN'T THAT A PRIOR CONSISTENT
STATEMENT ADMISSIBLE TO REBUT A CHARGE OF RECENT FABRICATION WHICH IS WHAT YOUR
PROSECUTOR IS ARGUING WE ONLY TAKE ABOUT 803 HOW ABOUT 607-B?
DEBORAH BARTOLOMEY: AGAIN IT IS NOT CONSISTENT WITH THEIR DEFENSE.
JUSTICE FERNANDEZ-VINA: IT DOESN'T HAVE TO GO. PRIOR CONSISTENT STATEMENT
TO REBUT A CHARGE OF RECENT FABRICATION WHICH IS WHAT WE HAVE HERE WHY ISN'T
IT ADMISSIBLE UNDER 60 RECEIVE B. DEBORAH BARTOLOMEY: I WOULD SAY IT'S
NOT A PRIOR CONSISTENT STATEMENT. IT'S A TOTALLY. JUSTICE
FERNANDEZ-VINA: SURE IT IS THEY SAID THEY SPOKE TO THE POLICE AND YOUR PROSECUTOR
SAID THEY DIDN'T SPEAK TO THE POLICE. YOU WOULD TAKE IT THEY WERE OUT THERE
THEY WOULD BE TALKING TO SOMEONE SO EVEN THOUGH YOU TRY DIFFERENTIATE THE EXTINGUISH
ONE FROM ANOTHER DETECTIVE POLICE OFFICER THE ORIGINAL STATEMENT THEY DIDN'T
SPEAK TO ANYBODY WHY ISN'T IT ADMISSIBLE UNDER 607-B. DEBORAH
BARTOLOMEY: YOUR HONOR DIDN'T SPEAK TO PLEASE OR SPEAK TO PLEASE IT'S ABOUT OUR
STORY. THERE ARE TWO STORIES HERE. THERE'S THE DEFENSE SIDE AND THE
PROSECUTOR'S SIDE. JUSTICE FERNANDEZ-VINA: YES AND THE
PROSECUTOR IS ARGUING THEY DIDN'T GO TO TO THE POLICE AND I'M SAYING TO YOU WHY
ISN'T THIS VIDEO MEBL UNDER SIEKS SERVE SEVEN B? TO REBUT THE CHARGE OF RECENT
FABRICATION THAT THEY ARE CLAIMING IT'S A RECENT FABRICATION THAT THEY TRIED
TO SPEAK TO THE POLICE. DEBORAH BARTOLOMEY: BECAUSE IN THIS VIDEO,
YOUR HONOR, THEY ARE NOT BRINGING THEIR SORRY OF SELF-DEFENSE THAT THEY
TESTIFIED ABOUT AT TRIAL TO THE POLICE. THAT'S WHY I'M SAYING IRRELEVANT. BECAUSE
WE NEVER DENIED THE VICTIM GETTING HYSTERICAL AFTER THE VCCA R FACT.
JUSTICE FERNANDEZ-VINA: I'M SORRY. EITHER YOU DIDN'T UNDERSTAND
MY QUESTION OR REALLY DON'T WANT TO ANSWER MY QUESTION SO I'LL LET IT GO BECAUSE
IT'S GETTING LATE. THE COURT: ANYTHING YOU WOULD LIKE TO SAY
IN CLOTHING MR. BARTOLOMEY. DEBORAH BARTOLOMEY: NO THANK YOU.
THE COURT: MS. BLUM REBUTTAL. MARCIA H. BLUM: I'LL REST
ON PIE DIRECT. THE COURT: THANK YOU ALL COUNSEL WE'LL TAKE THE
MATTER UNDER ADVISEMENT.