03 February 2010

Dan Talbot murder trial 3 Feb. 2010 -- The Appellate Process and the $64,000.00 question.

After yesterday's conviction Attorney Krupp vowed to bring the Appeals. So Attorneys Zabin and Krippendorf, or whomever handles the State's Appellate work will soon be busy defending their victory.

I can't imagine what the breadth of the Appeal will be, but there will obviously be a Manifest Weight of the Evidence Argument for a ton of reasons including the position of the body, the miraculously-discovered and placed bullet casings (both the 9mm and .40 cal on the Gatorade bottle), testimony of Paramedic Lee Ann Kraft that Soto told her the kid who returned, wearing a red hoodie shot Officer Talbot (KingCast hosted YouTube video). As to the procedural matters I still need to find out how Murder 2 arrived on the table and there is the procedural/substantive matter of the proffered witness Michael Racca, who was Derrick Lodie's childhood friend, as noted in this 27 Jan 2010 post. Unlike the State's witnesses who testified against Robert Iacoviello, nothing was offered to Mr. Racca, who is not a career criminal. He's finishing up his G.E.D. and studying to be a doctor's assistant or nurse I believe was his testimony. Racca said that Derek Lodie implied that he shot Officer Daniel Talbot during the telephone conversations that evening shortly after the tragedy when Lodie telephoned him.

Racca stated in the top video that Lodie told him: "[Lodie] had first related to me that the kids had a gun, we thought they were kids but we all know now that they were officers. They had flashed a gun to him at first, and that's when he said he showed them what it really meant to have a gun."

The Court asked for clarification and the proffered witness said it again, clear as a bell. He did not stammer, he did not hem and haw, and he was quite credible, and he also said that Lodie told him the officers fired first.

With that in mind, and re-thinking the Court's Decision (with which I initially agreed) I still agree that I don't see it as an excited utterance -- too much time for fabrication -- but why isn't it a Statement Against Penal Interest that could be argued for two purposes: One, to show Lodie as the shooter, and two, to show that whomever shot after the first shot from the officers fired in self-defense.

Then there is also the adjutant evidence on the Bombard case that the Court did not allow in to evidence, when Krupp alleges that Officer Talbot, dressed in plain clothes but on duty, discharged his weapon 8 times after a fleeing suspect who had his back turned. Read the Evening News and watch the videos from 26 Jan 2010 right here.

So basically Krupp will argue in addition to the Manifest Weight arguments that his client got dissed at every turn, and that cumulative effect of that is tantamount to Reversible Error, or in some fashion shows enough unlawful bias that the trial was tainted and a new one must be held. I look forward to reading the briefs from the Defense and Prosecution when they are filed, probably in late spring or early summer.

The $64,000.00 question: If a New Trial is ordered, will Robert Iacoviello, Jr. take the stand. And you can best believe a New Trial would occur, unlike the State's BS case against Derrick Gillenwater, where the State ran away on remand and I had to embarrass two prominent Boston Attorneys into paying Mr. Gillenwater for their Ineffective Assistance of Counsel (Judge Moriarty, p. one and two) which in Massachusetts is tantamount to Legal Malpractice. Google his name, I'm not getting into all of that right now. I'm sure those guys hated what I did, but all I did was exercise my First Amendment Rights to address what Harvard Law School's Citizen Media Blog deemed to be Constitutional violations against Mr. Gillenwater, thank you.

3 comments:

Anonymous said...

thank you very much MR KING for your honesty your Italian brother 4 life

Christopher King said...

9:30

Always keeping it Real.

The KingCaster.
kingjurisdoctor@gmail.com

Christopher King said...

I'm watching the video of my interview with Attorney Zabin and Jake Wark.

Zabin told me that under MGL 265(1) the Court is required to instruct the Jury on Murder 2 as part of the Murder Statute.

I told him that I was asking for clarification as to how Massachusetts does it because in other jurisdictions you had to name your poison, and unless Defense Counsel requested a lesser instruction the State had to go with what brung 'em.

I'm still looking into this, but WBZ reported the Robert Iacoviello was indicted "First Degree Murder," and I have had conversations with many people about the fact that the State's case could not sustain such a charge.

That's where the State relies on Commonwealth v. Brown, a bizarre Felony-Murder case involving marijuana, hashish and a 6-year international flight by the Defendants.

Anyway,

In addressing Paulding's appeal, the Massachusetts Supreme Judicial Court ("SJC") recognized that the trial judge's instructions were the product of the SJC's decision in Commonwealth v. Brown, 392 Mass. 632, 467 N.E.2d 188, 197 (1984), which held that the Massachusetts murder statute "requires a trial judge to instruct on murder in the first and second degrees if there is evidence of murder in the first degree, even though there appears to be no hypothesis in the evidence to support a verdict of murder in the second degree."

This holding was based on a provision in the Massachusetts murder statute which states that "the degree of murder is for the jury to determine." Mass. Gen. Laws ch. 265, § 1. The Brown court interpreted this provision to require that the jury, regardless of the evidence, have an opportunity, in every first degree murder prosecution, to convict the defendant of second degree murder — regardless of the state of the evidence. See Brown, 467 N.E.2d at 196-97.

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So as far as I know, or can see, if there is any appeal there Attorney Krupp would have to argue that the evidence doesn't fit second degree murder.

We shall see what if anything is argued on this. Krupp filed a Notice of Appeal at Sentencing, as did Attorney Willie Davis, on behalf of Defendant Heang.

We already know what Davis will argue in addition to Manifest Weight, he will argue Commonwealth v. Perez, 437 Mass 186:

At common law, a wife could not be prosecuted as an accessory after the fact for giving aid to her felon husband. 2 W.R. LaFave & A.W. Scott, Jr., supra at 169, citing 4 W. Blackstone, Commentaries *38-39. No other relative could claim such a defense at common law. 2 W.R. LaFave & A.W. Scott, Jr., supra. Our statute now allows other relatives (husbands, wives, parents, grandparents, children, grandchildren, and siblings) to defend against an accessory charge on the ground of their family relation to the principal offender. G. L. c. 274, § 4. This expansion of the relationship defense merely reflects the fact that it is unrealistic to expect family members to deny aid to other family members, notwithstanding their felonious conduct. See Commonwealth v. Barnes, 369 Mass. 462, 466-467 (1976), quoting R. Perkins, Criminal Law 683 (2d ed. 1969) ("it is asking too much of a jury to expect a conviction of one who has merely opened his door or 192 given some similar aid to a parent, child or other intimate relation"). Modernization of the relationship defense does not suggest that the Legislature intended to abandon the fundamental common-law definition of the crime itself.

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The Court ruled that the Jury found that Heang offered assistance not to his brother, but to Defendant Iacoviello.

-The KingCaster.