Well, that sure is a whole pile of near-SovCit arglebargle.
Maybe it’s just me, but for every instance of “clearly” and “it stands to reason” I see in a lawyer’s filing, my estimation of their arguments’ validity drops. She’s a public defender, and she has to do something, I suppose, but arguing for dismissal on the grounds that no grand jury in over a century has been able to return a valid indictment is…something else.
I’d have my attorney negotiate immunity from the drug charges if he can use it as an alibi. The prosecution would have a pretty hard time proving he was killing four people while standing crosstown at an ATM. Either way, that video with it’s timestamp is going to come out. Heck, his attorney could release it right now and stop the trial in it’s tracks.
First of all, it’s just a hypothetical to illustrate the pitfalls of assuming there is an easy answer to “what do you do if you are erroneously accused of murder and the evidence appears damning?”
Second, ignoring what I just said and treating the hypothetical as something really worth in depth analysis, what makes you think your defense attorney holds that kind of negotiating power? What makes you think the prosecutor will be motivated to deal at all? After all, we’re talking an ATM camera here and it was dark out. Sure, you say it’s you, but all we can really discern is that it’s someone of your general size and shape.
You might think, and I would agree, that surely the prosecutor would want to know if he’s got the wrong man in custody, and wouldn’t least investigate your alibi further and in good faith, employing state resources to fully investigate, but…
Yeah. Stories of the genuinely innocent but wrongly convicted are replete with examples of people where an unbiased view of new evidence makes it clear the prosecutor really did put the wrong person on trial, but where even after the person has been exonerated and released the prosecutor insists the evidence was and is air tight and the appeals court ought to be ashamed of itself.
It’s really all just a way of saying… sometimes prosecutors fuck up, in a subset of caes prosecutors will double down long after the weight of evidence makes clear they fucked up, that some defendants at least, and hopefully all defense attorneys know this, and that merely keeping a close-hold on an alibi for as long as possible (hoping to keep the prosecutor flat footed so they will get tripped up in front of the jury and fumble the case) makes sense from a certain point of view.
Prosecutors developing tunnel vision is in fact but one of many incentives for even an innocent person to refuse to cooperate with an investigation. For instance, did you know that if you make a statement to someone else, and later end up as a defendant, and you then try and bring the person in to repeat what you said, it will likely be excluded as hearsay, but that if the prosecution does the same it will be admitted as a statement by a party opponent? Which means that all the prior statements you made that, if true, would tend to undermine the prosecution’s case will be inadmissible to help you by default, while anything you might have said that would tend to incriminate you, such as if you misspoke about the time when you were selling drugs in front of the ATM because under pressure you misremembered, will be admissible as evidence against you, that you fabricated the ATM story? Suppose, for example, you said you were there (thinking back many months) from midnight to 5AM, when in fact the dealer appears on camera from 1AM to 6AM. A perfectly plausible alternative story of the ATM footage, then, is that, sure, someone was dealing there—we can all see that with our own eyes—but you were probably just one of the customers, and you came by before or after the murder to get high, and you only latched onto this “alibi” later out of desperation. After all, there’s mounds of other evidence against you and doesn’t that really seem more plausible to you, oh fair and impartial jury? I mean, we just knowing this guy is lying because he didn’t immediately confess to a number of other felonies in response to being arrested for murder, and when he finally did talk details of his alibi were inconsistent with the ATM footage…
Yeah. If the defendant was supposed to say something themselves, not through their attorney, at the point of “How do you plead?”, and he’s a raging nutball likely to start a SovCit or whatever rant, far better to coach him to just stand there impassively. Or worse yet if his poor impulse control would likely lead to “They had it coming to them; they all deserved it!!!11!!!”, then standing silent may be the best move.
Unrelated to this case about a year ago I was in the jury pool for a murder 1 case here in SoFL. During the voir dire the defense attorney was at pains to ask questions about how the prospective jurors would react if the defendant chose not to testify. Could we avoid reading that as a sign of guilt or whatever, etc. Throughout this the defendant sat impassively at his table.
I wasn’t empaneled, so I never heard how the trial actually unfolded, nor what the verdict was. But clearly this defense attorney was planning, or at least considering, having the defendant sit out his opportunity to testify.
I agree the poor PD is stuck with a hopeless case.
Don’t forget we are watching this unfold in Idaho, where SovCit thinking may not be mainstream, but is mainstream-adjacent. Pulling the SovCit routine may be a way of generating at least local sympathy for Kohberger’s side of the story.
IMO they’re not going for acquittal here; they’re going for mistrial, confusion, hung or contaminated jury, etc.
This doesn’t fit the video of the hearing in any way, shape or form.
I’d like to understand how you came to this conclusion when, from the video shows that the defendant answered a series of questions from the bench clearly, with no side comments, no shouting, no mumbling, no back talk and then, when the defense attorney answered the plea question, the judge didn’t hesitate, pause to think, ask any clarifying questions, just entered the plea for the defendant. It’s almost as if the defense had let the court know that they were going to take this tack. Sounds like a real zoo, doesn’t it?
Never watched the video; that’s how.
Full arraignment video
Orrrr… this isn’t the judge’s first rodeo.
I’ve had a lot of jury duty experience (it’s like they have my name on speed dial), and I’ve heard this so much, I’ve made the assumption that the defendant, more often than not, does not take the stand.
Definitely true. My rough estimation is that defendants testify about 1/3 of the time. I used to remind jurors that my client doesn’t have to take the stand just to say, “I didn’t do it.” His not guilty plea and presumption of innocence do that. A defendant has to take the stand when he or she has to explain something that only he or she can explain. (self defense is a good example)
As I mentioned earlier, the courts have a rule for this scenario, and the lawyer’s response invoked it. The judge just followed protocol. There was no need to inform the court in advance, though it’s possible that the lawyer did so.
My point was not that I expected the defendant to dissolve into bizarre ranting, only that he may be refusing to cooperate in certain ways. The other option is that the public defender advised this, but I’m struggling to see any legal advantage in doing so. (On the other hand, the lawyer’s argument in the motion to dismiss is…creative. So who knows?) One of them must see some reason to do this, but one is not necessarily basing their decision on an understanding of court proceedings, and the other is obligated to come up with some kind of strategy without much to work with.
Hard cases make bad law. If this argument put forth supporting the motion to dismiss were to ever be seriously considered, they should have raised it in a much less serious felony. It would be a lot easier to get the courts interested in such an argument in a theft case than a quadruple homicide. No judge is going to throw out an indictment in this case because of this argument.
That’s my feeling as well–indeed, I can’t see a judge accepting this argument in any case. Logic aside, sheer pragmatism makes it untenable; the courts would be flooded with prison lawyers and SovCits trying to use it to get every case under the sun overturned.
I’m amazed the defense counsel actually put forth such a wackadoodle argument in a motion. A competent lawyer would know better and any lawyer with a shred of self-respect wouldn’t allow themselves to be bullied into it by a recalcitrant defendant.
Just sad.
Again we’re talking small town Idaho here. By those standards it’s not as wackadoodle as all that. On any national-scale legal reckoning it’s wacky as all get out.
Right. It’s usually a very bad idea unless there is an affirmative defense being argued. I remember a murder case I was tangentially involved in when I was a detective. By the time it got to trial I was back on the road. About a week after the trial I happened to go on a call and the complaint told me he was a juror on the trial. He let me know that he might have voted not guilty except the guy took the stand and he was clearly lying and guilty. And he was right the guy was guilty and lying.
My take is that the attorney for the accused is more or less checking the ethical box; put forth the best legal defense possible, knowing this is (most likely) an unwinnable case.
Agreed. They are doing the best they reasonably can with limited resources and a very bad fact pattern.
Even a legal team with unlimited resources would be hard-pressed to create an effective defense given what we in the general public have seen.
I know, right? A decent attorney would kindly inform their client they don’t really need a lawyer, they need a priest, and that rather than demanding the prosecution prove every element of the offense charged, they should just confess and ask for the death penalty like a responsible citizen.
Don’t play the cards you are dealt. If you find yourself holding a pair of deuces, and the other guy swears he’s holding a straight flush, don’t fight it. Just go ahead and fold even though you’ve already gone all in.
Right?
Yes. A Kobayashi Maru. And the thing about the Kobayashi Maru is, when it happens in the real world, you don’t actually know it was a no-win scenario until it’s over. If then. But in the meantime you must keep on fighting to the extent duty demands at least.