Now that he's been terminated, here are some ways the Commonwealth could try to limit the damage ... but chances are pretty good they're stuck with it.
The following is originally designed for a chart of 3 columns. First column is "Alleged Matter of Fact". Second column is "Inference/Reasonable Inference". Third column is "Matter of Fact" (presented to Jury).
The following is a vertical presentation of the chart: 1 = 1st Col; 2 = 2nd Col.; 3 = 3rd Col.
CHART
Row 1:
1. [Alleged Matter of Fact] Crime Scene = INSIDE the Albert House.
2. [Inference] Blood flowed downward from John O'Keefe's nose while he was upright.
3.[Matter of Fact]John O'Keefe had a bloody nose inside the Albert House (blood flow downward onto his shirt).
Row 2:
1.[Alleged Matter of Fact] Dog caused O'Keefe to fall backward (and hit the back of his head) as he either pulled away or was jumped on by the dog.
2. [INFERENCE] Back of head trauma, O'Keefe.
3. [Matter of Fact] Dog was inside the
Albert house.
Row 3:
1.[Alleged Matter of Fact] Severe pain experienced by O'Keefe from multiple dog bites.
2.[Inference] O'Keefe tried to pull away.
3.[Matter of Fact]. O'Keefe falls backward, hitting back of head on concrete basement floor.
Row 4.
1.[Alleged Matter of Fact].Multiple horizontal punches, possible knock out punch.
2. [Inference] Brian Albert & Brian Higgins lying in wait for O'Keefe inside house.
3.[Alleged Matter of fact] John O' Keefe 2 black eyes. Albert & Higgins inside Albert House.
Row 5:
1.[Alleged Matter of Fact] "Ill Will" of Albert and Higgins towards O'Keefe. Intent to beat up O'KEEFE.
2.[Inference] Albert and Higgins lie in wait for O'Keefe inside house. Later they are inside with a dead body.
3.[Matter of Fact] Albert and Higgins are inside the House.
Row 7
1.[Matter of fact.]Ford Edge parked in front of Albert House.
2.[inference) Albert and Higgins are inside the house with a dying or dead O'Keefe.
3.[Matter of Fact] at about 3 am snow plow drives by house, sees no body on lawn and sees a parked Ford Edge. After 3am, They carry Okeefe's uunconscious body to a freezing area of the lawn.
I saw that. What they are specifically focused on is the intersection between admitting hearsay and the right to confront witnesses against you. In Crawford v. Washington, authored by J. Scalia, the court limited the use of what they called "testimonial" hearsay at trial without producing the witness who made the out-of-court statement for cross-examination. The question in these cases is whether the statement was intended to assist with prosecuting someone or not - if it was, they have to produce the witness to admit it.
Reconsidering Crawford, if they did it, wouldn't affect the cases on the right to confront witnesses who do testify for bias. But it is interesting that there's an appetite to cut back on cross-examination and open the door more broadly to convict people on hearsay.
I'm guessing it's because Michigan v Bryant gutted the Confrontation Clause, giving the right to manipulate it to judges and police -- quite contrary to its purpose to avoid Kanga Trials like that of Sir Walter Raleigh.
I could be way off.
But Scalia and Ruth Bader Ginsberg were in strong dissent.
Oh I think you're absolutely right. In general, it's hard to reconcile a practice being something you have a guaranteed right to with something a judge can decide you shouldn't be able to do because reasons.
Scalia: Judges cannot "be trusted to assess the reliability of uncross-examined testimony in politically charged trials or trials implicating threats to national security." Sounds familiar.
It would be nice if the question of third party culprits can be brought up like new since its Read's constitutional right to present that defense. That seems at least logically related to a Bowden defense. Logic: Proctor decided not to investigate all leads because that would have led him to investigate Albert and Higgins.
I don't know what was done by the judge or why, in the first trial on the other culprits defense. And would the defense be able to bring it up as if the new trial was as if there had never been a first trial. (I haven't been watching in the interim.)
They are treating it as a new trial for purposes of admitting third-party culprit evidence. That said, the defense seems to have indicated that they intend to pursue a Bowden defense, and not necessarily a pure third-party culprit defense where they would actually argue the Alberts or Higgins did it. I think that's the smarter approach - focus on the suspicion that should have led to them being investigated rather than implicitly assuming the burden of proving what you can't prove, because of the fact that the police didn't investigate it.
Is the Court's denial of time, place, and person or source data to the Defense for the manipulated police garage video, the Court's participation in a Brady Violation -- the hiding of possible video manipulation where the manipulation was reasonable evidence of police, and prosecutor, intent to hide evidence of an intact tail light?
Brady as such only applies to prosecutors. That said, court rulings can also amount to a deprivation of due process. I think the issue here is Judge C didn't rule outright that they couldn't have it, she ruled that they hadn't submitted affidavits - ironic - establishing that their proposed procedure was necessary to preserve the metadata. So they could have cured it and, in theory, did so in their motion to reconsider. It's just that the CW seems to have taken the opportunity to go ahead and destroy the metadata in the meantime. I can't imagine we won't hear more about this at trial - it seems to be consciousness of guilt on the same level as separately disposing of your phone and your SIM card in a dumpster on a military base.
The following is originally designed for a chart of 3 columns. First column is "Alleged Matter of Fact". Second column is "Inference/Reasonable Inference". Third column is "Matter of Fact" (presented to Jury).
The following is a vertical presentation of the chart: 1 = 1st Col; 2 = 2nd Col.; 3 = 3rd Col.
CHART
Row 1:
1. [Alleged Matter of Fact] Crime Scene = INSIDE the Albert House.
2. [Inference] Blood flowed downward from John O'Keefe's nose while he was upright.
3.[Matter of Fact]John O'Keefe had a bloody nose inside the Albert House (blood flow downward onto his shirt).
Row 2:
1.[Alleged Matter of Fact] Dog caused O'Keefe to fall backward (and hit the back of his head) as he either pulled away or was jumped on by the dog.
2. [INFERENCE] Back of head trauma, O'Keefe.
3. [Matter of Fact] Dog was inside the
Albert house.
Row 3:
1.[Alleged Matter of Fact] Severe pain experienced by O'Keefe from multiple dog bites.
2.[Inference] O'Keefe tried to pull away.
3.[Matter of Fact]. O'Keefe falls backward, hitting back of head on concrete basement floor.
Row 4.
1.[Alleged Matter of Fact].Multiple horizontal punches, possible knock out punch.
2. [Inference] Brian Albert & Brian Higgins lying in wait for O'Keefe inside house.
3.[Alleged Matter of fact] John O' Keefe 2 black eyes. Albert & Higgins inside Albert House.
Row 5:
1.[Alleged Matter of Fact] "Ill Will" of Albert and Higgins towards O'Keefe. Intent to beat up O'KEEFE.
2.[Inference] Albert and Higgins lie in wait for O'Keefe inside house. Later they are inside with a dead body.
3.[Matter of Fact] Albert and Higgins are inside the House.
Row 7
1.[Matter of fact.]Ford Edge parked in front of Albert House.
2.[inference) Albert and Higgins are inside the house with a dying or dead O'Keefe.
3.[Matter of Fact] at about 3 am snow plow drives by house, sees no body on lawn and sees a parked Ford Edge. After 3am, They carry Okeefe's uunconscious body to a freezing area of the lawn.
I bet these charts are AMAZING. Have you published them in a spreadsheet format anywhere?
Justices Alito and Gorsuch want SCOTUS to reexamine the Confrontation Clause.
I saw that. What they are specifically focused on is the intersection between admitting hearsay and the right to confront witnesses against you. In Crawford v. Washington, authored by J. Scalia, the court limited the use of what they called "testimonial" hearsay at trial without producing the witness who made the out-of-court statement for cross-examination. The question in these cases is whether the statement was intended to assist with prosecuting someone or not - if it was, they have to produce the witness to admit it.
Reconsidering Crawford, if they did it, wouldn't affect the cases on the right to confront witnesses who do testify for bias. But it is interesting that there's an appetite to cut back on cross-examination and open the door more broadly to convict people on hearsay.
I'm guessing it's because Michigan v Bryant gutted the Confrontation Clause, giving the right to manipulate it to judges and police -- quite contrary to its purpose to avoid Kanga Trials like that of Sir Walter Raleigh.
I could be way off.
But Scalia and Ruth Bader Ginsberg were in strong dissent.
Oh I think you're absolutely right. In general, it's hard to reconcile a practice being something you have a guaranteed right to with something a judge can decide you shouldn't be able to do because reasons.
Sad.
Scalia: Judges cannot "be trusted to assess the reliability of uncross-examined testimony in politically charged trials or trials implicating threats to national security." Sounds familiar.
It would be nice if the question of third party culprits can be brought up like new since its Read's constitutional right to present that defense. That seems at least logically related to a Bowden defense. Logic: Proctor decided not to investigate all leads because that would have led him to investigate Albert and Higgins.
I don't know what was done by the judge or why, in the first trial on the other culprits defense. And would the defense be able to bring it up as if the new trial was as if there had never been a first trial. (I haven't been watching in the interim.)
They are treating it as a new trial for purposes of admitting third-party culprit evidence. That said, the defense seems to have indicated that they intend to pursue a Bowden defense, and not necessarily a pure third-party culprit defense where they would actually argue the Alberts or Higgins did it. I think that's the smarter approach - focus on the suspicion that should have led to them being investigated rather than implicitly assuming the burden of proving what you can't prove, because of the fact that the police didn't investigate it.
Chart II LETHAL WEAPONS, cumulative/composite (3 columns)
Col.1 Fact:
Dog teeth; attack dog.
Col.2 Inference:
Horizontal bite, horizontal pull. Horizontal resist.
Col.3 Lethal Action: John O'Keefe falls backward in pulling away from dog, hits back of head on concrete floor.
Col.1 Fact: Boxer's hands.
Col.2 Inference. Multiple hands, horizontal and vertical fist strikes.
Col.3 Lethal Action. Albert amd Higgins deliver multiple punches to Okeefe's body.
Col.1 Fact:
Freezing Temperature, exterior front yard.
Col.2 Inference: O'Keefe dies because unconscious from injuries and exposure.
Col.3 O'Keefe is carried from the house and abandoned on the lawn.
Col 1.Fact:
Intentional plan to place OKeefe outside the house after 3 a.m.(snow plow guy drives by at 3 a.m.(?) and testifies there is no human body on the lawn.
Col.2 Interence: The Albert's and Higgins collude to kill OKeefe by exposure and by "accident" [car accident].
Col 3. Lethal Acton: O'Keefe is carried from house to lawn and abandoned unconscious in freezing weather.
Is the Court's denial of time, place, and person or source data to the Defense for the manipulated police garage video, the Court's participation in a Brady Violation -- the hiding of possible video manipulation where the manipulation was reasonable evidence of police, and prosecutor, intent to hide evidence of an intact tail light?
Brady as such only applies to prosecutors. That said, court rulings can also amount to a deprivation of due process. I think the issue here is Judge C didn't rule outright that they couldn't have it, she ruled that they hadn't submitted affidavits - ironic - establishing that their proposed procedure was necessary to preserve the metadata. So they could have cured it and, in theory, did so in their motion to reconsider. It's just that the CW seems to have taken the opportunity to go ahead and destroy the metadata in the meantime. I can't imagine we won't hear more about this at trial - it seems to be consciousness of guilt on the same level as separately disposing of your phone and your SIM card in a dumpster on a military base.