Anyone know anything about criminal justice and the court system?

Most states have means that if new evidence is discovered, the defense lawyer(s) can present it to the presiding judge and try to get a new trial.

It wouldn't be a parole thing, it would be a total new trial thing. The results of this trial, if the motion is granted by the judge, would supersede the results of the previous one.

Of course, if Ken's defense attorney saw the 'tape', he'd drop the whole thing. So would the judge, since it just proves what the previous trial already established. Unless you have Emily withholding that evidence and committing perjury. And I'm not sure if an eye-witness account would be sufficient in itself to warrant a new trial since eye-witnesses are notoriously 'iffy' and there's no corroborating evidence (see above).

underthecity said:

DeeDee doesn't know about that recording. She was going to rely on Emily's testimony as an eyewitness.

Click to expand...

Again, iffy at best. Doubtful a judge would allow the testimony without corroboration.

underthecity said:

Secondly, I was trying to frame this into some kind of deadline. Maybe there was already going to be some sort of trial for something regarding the case. And DeeDee intended to be there to present new evidence.

Click to expand...

Not sure what other reason there would be for a new trial, unless they had already had a hearing and found some error which would have affected the outcome (very rare, from my understanding).

But maybe what you want is a hearing, versus a full-on trial. ??

You file a motion with the trial court to reopen the case based upon new evidence. The original judge, if still available, will sit on the hearing. The defendant has a substantial burden to prove that he should get a new hearing.

First hurdle is presenting evidence as to why the evidence was not available at trial. It's hard to show. Second hurdle is the sufficiency of the evidence. An eyewitness isn't worth a bucket of warm spit. The video might work, but it's going to have to be real good. And there's going to be a lot of work in proving that the video is authentic.

Defense counsel would screen this carefully. Very carefully.

And even if the video shows that Ken was a bystander (I understand it does not), it doesn't help him a whole hell of a lot. Ken was involved in a felony of purchasing drugs. It is reasonable that in the commission of a felony, someone can get hurt or killed. If someone dies in the commission of a felony, all of the participants in the felony (the drug deal) would be guilty of felony murder even if they don't do the actual killing.

I wouldn't bother to file it for the defendant even if after I became convinced that Ken didn't do the actual stabbing. It's not going to make a bit of difference. He took part of a felony that resulted in a death, and is therefore guilty of felony murder.

Best of luck,

Jim Clark-Dawe

jclarkdawe said:

And even if the video shows that Ken was a bystander (I understand it does not), it doesn't help him a whole hell of a lot. Ken was involved in a felony of purchasing drugs. It is reasonable that in the commission of a felony, someone can get hurt or killed. If someone dies in the commission of a felony, all of the participants in the felony (the drug deal) would be guilty of felony murder even if they don't do the actual killing.

I wouldn't bother to file it for the defendant even if after I became convinced that Ken didn't do the actual stabbing. It's not going to make a bit of difference. He took part of a felony that resulted in a death, and is therefore guilty of felony murder.

Click to expand...

This. In most, if not all states, the felony murder rule makes the evidence irrelevant, even if it proved Ken didn't do the actual stabbing. For this to be evidence that could get him a lighter sentence, they needed to be there for a different reason, a non-criminal reason.

If Ken lied to his sister about why they were there, and she thought she could prove he hadn't been there to commit a crime, maybe it could be relevant to file a motion. But like jclarkdawe wrote, I'm not sure an eye-witness, without corroborating documents/video/pictures, would be enough.

Now, could it be that the sister mistakenly thinks it's enough, and so is scrambling around/putting pressure, not knowing that it's a futile effort? Sure, if she hasn't discussed it with the attorney, or the attorney is not well versed in criminal law.

But if the attorney is a competent criminal attorney, he/she is going to know that it doesn't matter who did the stabbing if they were there in the commission of a crime.

I'll echo what Jim said... and add a cautionary thought.

You might want to keep this in a US state court. Federally there could be potential criminal issues facing a witness who withheld evidence - or worse, one who lied to federal investigators. That in itself is a felony (18USC1001).

I just wanted to comment on the footprint in the sand thing. Granted, I'm not a forensics expert by any stretch of the imagination . . . but I have walked on the beach. In my experience, footprints in the sand tend to be pretty deep, especially if you're running. Your body weight at high speed forces the sand to displace, forming a deep depression where your foot hits the sand. I wouldn't imagine a little bit of wind is going to blow this evidence away. Even strong wind wouldn't, because the depression is below ground-level. Not unless the sand is very loosely packed and therefore easily blown about. Water, on the other hand, will obscure the footprints, because the water will sink into the depression and erode the edges. But I imagine it would still take quite awhile before the footprints were completely erased. There would be, if nothing else, holes in the sand where the footprints once were.

If you live anywhere near the beach, experiment with this. Run on the sand on a windy day, and see how long it takes for the footprints to disappear. Or run along the waterline and see how long it takes the incoming water to obscure the footprints. Like I said, I could be totally wrong here, but I would imagine there would be something there for the police to see, unless it's storming and/or they take a really long time to arrive.

There are ways around this, of course. There could have been a marathon on the beach earlier that day, so there's lots and lots of footprints in various stages of erosion, and the police can't tell which are fresh and which aren't. But this would depend on how fast the footprints fade, and how competent the police are. The guy could have chased the other guy, so their footprints overlap and the police can't tell if it was one guy's footprints or two. Again, depends on their level of competency. A professional tracker or detective would likely be able to tell, but do they have someone like that on the scene?

Just a few ideas for you to play around with.

In thinking about your problem, here's a couple of suggestions. My understanding is you want a court hearing, that will function as a deadline in which DeeDee has to investigate.

First possibility is that the police withheld evidence. In your case, I'm thinking if the police withheld that the drug dealer had a reputation for offing customers. That in the past, the dealer had been convicted of offing a customer and had the case thrown out on a technically. By not releasing this evidence, the defense was precluded from arguing self-defense, and jury nullification that the druggie got what he deserved. (You have to dress the jury nullification up a bit, but that's what it is.) This one is more likely to get a new trial.

Second possibility is the prosecutor engaged in misconduct. The prosecutor violated some legal ethic, which resulted in the guilty judgment of the jury. This is a lot less likely to get a new trial. A possibility would be that the prosecutor had been planning on running for the Senate and made the case sound a lot worse than it actually was to obtain publicity, resulting in a harsher sentence than was justified.

Best of luck,

Jim Clark-Dawe