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Wednesday, March 27, 2013

Relevant Arguments







Criminal Trial
(Court Transcripts Volume 13 of 31 pgs. 105, 106)

            DA: I guess let’s start from the end. Is it typical based on the research and your training and experience that children who have no sexual history or experience with any type of sexual act, do they typically dream, quote, or have a graphic sexual dream?

            Therapist: No. The only way that would be possible is if they were actually exposed to some type of graphic sexual stimulation.

            DA: So, are children able to just dream about oral sex being performed on them when they’ve never had that done to them before?

            Therapist: If they’ve not been exposed to it, it would be pretty impossible.

The fact that there was porn in the house, even easily-accessible porn, has nothing to do with whether or not Jane Doe was assaulted. That much is true. But the moment the prosecution started making the argument that she couldn’t know about the sex act without having seen or experienced it, it became extremely relevant.

From the Federal Rules of Evidence, via Wikipedia:

Until the Federal Rules of Evidence were restyled in 2011, Rule 401 defined relevance as follows:
"Relevant evidence" means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.

This definition incorporates the requirement that evidence be both material ("of consequence to the determination of the action") and have probative value ("having any tendency to make the existence of any [material] fact...more probable or less probable than it would be without the evidence").[2]

The restyled Rule 401, however, separates these traditional concepts in order to make the rule clearer and more easily understood.[3] The amended language essentially rewrites the rule as a test, rather than a definition, for relevance:

Evidence is relevant if:
(a) it has any tendency to make a fact more or less probable than it would be without the evidence; and
(b) the fact is of consequence in determining the action.[4]

So, regarding a), a history of exposure to graphic sexual stimuli would make it possible for a child to dream about a sexual act. Regarding b), given the child’s history of sleep disorders, nightmares, etc, and given her lack of conviction about whether what happened was real or a dream, it seems very consequential in determining whether or not she could tell if she was actually assaulted. But no; the judge laughs, and says her access to porn isn’t relevant. This happened in Volume 15, after the prosecution had made their point that she couldn’t just come up with it on her own:

Criminal Trial
(Court Transcripts Volume 15 of 31 pgs. 10-11)


The Court: So if I drive by an X-rated movie store – I mean, I have access or somebody brings a whole barrel of them and puts them in my house that means that I’m –


            Chip: Judge, that’s not even close to what happen[ed] here.


            The Court: Well, how can you argue that that is – had an effect on her when there’s no evidence that she ever saw it?


            Chip: I can argue that the inference is it was accessible in that house. I don’t know what happened in that house.  I don’t know what happened in the house. It was, by her admission, laying on top of the T.V.


            The Court: So, what is the inference.


            Chip: That she could have seen it. I mean, I understand if the Court doesn’t like my argument, that’s one thing, but it’s permissible.


            The Court: No, no, it doesn’t have anything to do with not liking it.


            Chip: You’re laughing about it.


            The Court: There is no evidence that she saw it.


Something else that I noticed is that the prosecutor focused on a child experiencing the act:

“...children who have no sexual history or experience with any type of sexual act...”

“...when they’ve never had that done to them...”

The therapist leaves a little wiggle room in her answer; saying that if a child was exposed to some kind of graphic sexual stimulation, it would be possible for them to dream about it. I wonder if this was the same therapist from Volume 17, who apparently had no idea that the child’s symptoms pre-dated her accusations by 8 or 9 months; was he or she also unaware that this child had easy access to porn in her own home, and that she was apparently dragged to movie theaters to watch R-rated movies?




9 comments:

Anonymous said...

i have a question... when SPM gets his parole hearing.. will he need to show remorse for the crime he was convicted of????

Anonymous said...

what i wanna know is if its true what juan gotti was sayin in his new song about the little girl being grown up now and saying on facebook that her mom told her to lie about it. i have a feeling spm's new album is gonna bring so much attention that the news will do an interview with him like the last time when he released an album and maybe he can make his points to why he deserves a new trial

DVD520 said...

Hey Incandesio, I was just reading an article about Arthur Coy. It said that if found guilty he would spend up to 30 years in prison. What I don't get is that he had a bond of 300,000 and now dropped to 200,000. Was he like the leader of the group because the other two guys had it easy. That's what I think. I just want to read your opinion.

Anonymous said...

if he ever gets a retrial the news will be all over it, not just local i mean nancy grace type news. but i can see nancy grace making carlos look like a monster to. plus i remember reading chip lewis and the prosecuter ended up dating after the case, thats crazy

Incandesio said...

DVD520:
I don't know anything about that case, which means I'm probably not going to talk about it; however, there's a really great explanation of federal sentencing guidelines and how they're misrepresented in the media here:

http://www.popehat.com/2013/02/05/crime-whale-sushi-sentence-eleventy-million-years/

"People reporting on federal criminal justice — whether journalists or bloggers — routinely report on the statutory maximum sentence that a defendant could hypothetically get, an oft-ridiculous figure calculated by taking all the charged crimes and adding up the maximum punishment for each. This is usually followed by some sort of pronouncement that THIS PERSON CHARGED OF MINOR CRIMES FACES MORE JAIL TIME THAN YOU'D GET IF YOU BEAT A TODDLER TO DEATH WITH AN UNCONSCIOUS NUN WHILE RAPING A BLIND LIBRARIAN, or words to that effect."

Incandesio said...

Anon 10:09

If he doesn't admit guilt and submit to treatment, he may not even get a parole hearing.

Incandesio said...

Anon 12:28:

I don't think we have to fear any kind of publicity; SPM has already taken the Mother of all Bombs, and remained standing.

I mean, what could they throw at him that's worse than a conviction for sexual assault of a child? There's nothing that I can imagine.

Anonymous said...

I was wondering the same thing!!! I read an article about somehing similar. I think incandesio posted it. About a kid tht was in jail for years since he was young cuz his sister accused him of rape. And recently his sister said that no he didnt rape her her stepdad did but her mom told her to say it was her brother. What kind off ppl love in this world now.

Anonymous said...

There's also a video where they interview baby bash and he talks about that girls mom being obsessed with los and how she wanted 20gs. He says other stuff look it up it on you tube.think the interview was in 2010 though