Knocked this out of the park, Andrea. If Judge Judge has to be offended by anything it should be this motion. It seems written by someone and for someone who doesn't know the law.
A couple questions. 1. "Prosecutors enjoy enormous institutional preferences from judges - their legal interpretations are assumed to be correct..." Don't judges have an army of interns and clerks to research all this stuff, and even write opinions for them? 2. Doesn't BK have access to his own phone so that he can extract all the gps history etc independently? Asked differently, why does he have to rely on disclosures from the prosecutor?
1. Clerks are common in federal court and appellate courts. Trial level judges in State court rarely have law clerks. Because of the law school being there, I could see Judge Judge occasionally having an intern but I wouldn't expect him to have regular or substantial assistance with his legal research.
2. There's a couple of reasons why accessing the phone or independently obtaining the information may not be adequate. First, the State will sometimes fight you on the request because they will raise concerns that your handling of the phone could alter the data in it. I've had to get a court order to let my jailed client access his phone from his jail property to look up the number of a witness so I could contact them, because the State didn't want him to have the ability to turn the phone on. The fact that the State already has their extraction done here should mitigate that but I wouldn't be shocked if they objected or made access difficult. Second, it's extremely difficult to challenge the State's witnesses' analyses without being provided the materials they relied on. The reason why is because a clever witness will refuse to authenticate your independent materials for you - say you want to confront them with a piece of data on a document you obtained from Verizon, they will say, I don't know what this is, I can't say this is the same thing I looked at, I don't know if this is unaltered, etc. So to effectively cross-examine you absolutely need the State's own materials so you can be sure you're both questioning the expert about the same thing.
Very well written. Is it ok to share this? because I noticed that you didn't directly link to this post on twitter, and people without accounts on Substack won't see it.
Yes, go right ahead! I only didn't link it on Twitter because Elon hates Substack and throttles the links so they don't get as much exposure as just directing people here through my bio.
Great post and analysis, Andrea, and very educational (for me) as well. Can we look forward to the Defense's response to the State's motion before the hearing?
Knocked this out of the park, Andrea. If Judge Judge has to be offended by anything it should be this motion. It seems written by someone and for someone who doesn't know the law.
A couple questions. 1. "Prosecutors enjoy enormous institutional preferences from judges - their legal interpretations are assumed to be correct..." Don't judges have an army of interns and clerks to research all this stuff, and even write opinions for them? 2. Doesn't BK have access to his own phone so that he can extract all the gps history etc independently? Asked differently, why does he have to rely on disclosures from the prosecutor?
1. Clerks are common in federal court and appellate courts. Trial level judges in State court rarely have law clerks. Because of the law school being there, I could see Judge Judge occasionally having an intern but I wouldn't expect him to have regular or substantial assistance with his legal research.
2. There's a couple of reasons why accessing the phone or independently obtaining the information may not be adequate. First, the State will sometimes fight you on the request because they will raise concerns that your handling of the phone could alter the data in it. I've had to get a court order to let my jailed client access his phone from his jail property to look up the number of a witness so I could contact them, because the State didn't want him to have the ability to turn the phone on. The fact that the State already has their extraction done here should mitigate that but I wouldn't be shocked if they objected or made access difficult. Second, it's extremely difficult to challenge the State's witnesses' analyses without being provided the materials they relied on. The reason why is because a clever witness will refuse to authenticate your independent materials for you - say you want to confront them with a piece of data on a document you obtained from Verizon, they will say, I don't know what this is, I can't say this is the same thing I looked at, I don't know if this is unaltered, etc. So to effectively cross-examine you absolutely need the State's own materials so you can be sure you're both questioning the expert about the same thing.
Very well written. Is it ok to share this? because I noticed that you didn't directly link to this post on twitter, and people without accounts on Substack won't see it.
Yes, go right ahead! I only didn't link it on Twitter because Elon hates Substack and throttles the links so they don't get as much exposure as just directing people here through my bio.
Great post and analysis, Andrea, and very educational (for me) as well. Can we look forward to the Defense's response to the State's motion before the hearing?
Unless the court just denies it outright, which I think he should, we'll likely get a response from the defense.