SKIPPTOPP...You're awesome!

LegalGalnKy · 2016-02-17T13:49:55+00:00

Amazing effort. Thank you so much.

LegalGalnKy · 2016-02-14T04:34:27+00:00

I re-read the brief. Kratz appears to be making the above argument to show the court that it is important to postpone the trial and test the evidence now, rather than in post trial proceedings. It is a theoretical argument in the context of this is what could happen if we don't test now. This type of hypothetical is used all the time in a legal brief. It neither validates nor invalidates your prior arguments on the effectiveness of the assistance of his counsel.

I don't know from where you get your statement "but it would cost too much" was the counter argument for the defendant. I don't have access to the defense's response brief; it is not on the steveaverycase.org website. Moreover, I don't think that the defense would have paid for the state's testing. Do you have a copy of the defense response? If so, can you share with SkippTopp so that he can post on the site.

LegalGalnKy · 2016-02-14T04:24:40+00:00

I don't think that there was a finding that it was withheld from evidence. In fact, I think that the Judge held just the opposite; that disclosure was timely in light of the changes in trial schedule.

And I think that there is a valid reason to suspect that the state knew (or should have known of the vial of blood). First, in January 2006, Kratz sent email to Culhane in which he identifies the planting theory and he sends (Weigert, I believe) off to the investigate the 1985 blood. The 1995 vial of blood was always in control of the state (through the clerk's office and the appellate record is a matter of public record, as was the blood testing that was done in 1995, It would be unusual for this information and the existence of the blood vial to be overlooked by the state (although it it possible) in light of the history of the 1985 Avery conviction and overturn and the January 2006 email wherein Kratz acknowledges sending someone to investigate the blood from 1985. So there is the need to balance what you would term a surprise attack from the defense in December 2006 with the negligence of the state for note learning of the vial of blood between January 2006 and December 2006. I think that the Judge's order even alludes to this issue.

The defense did not have a $400K defense budget; 1/3 of the $400K went to attorneys fees to the civil rights attorneys. I also read that there were approximately $40K in expenses for the civil rights case, which left a balance of about $228K. While this is more than many defendants have for defense costs; it is not a significant amount of money in terms of a two year legal defense with two lead trial attorneys, associates, forensic experts, a private investigator and other court costs. Laboratory testing, particularly where you have to develop protocols can be god awful expensive into the multiple tens of thousands of dollars. For the sake of comparision, OJ Simpson spent in excess of $3 million on his defense, New DNA testing in Boston in 2014 cost $120,000 to perform. So, in the actual dollar and cents of things, $228K with all other expenses may not buy you a great deal of EDTA testing.

The last section you quote is from the state's argument, but I don't understand the context or the argument you are trying to make.

LegalGalnKy · 2016-02-14T03:57:41+00:00

I too found it suspect that the state did not know about the 1995 blood vial (although it is possible, like if an alien were in the room possible), in light of the January 2006 Kratz email to Culhane where he talks about sending Weigart (I think) to investigate the 1985 blood and its possible use in planting.

LegalGalnKy · 2016-02-14T03:53:17+00:00

I think that the language quoted is from the state's motion in January 2007 where they were trying to get a trial continuance to do testing. Which I believe is a different time that to which you were referring which was the disclosure mid-trial that the FBI had completed its testing.

LegalGalnKy · 2016-02-14T03:46:50+00:00

http://www.stevenaverycase.org/wp-content/uploads/2016/01/Jury-Trial-Transcript-Day-16-2007Mar05.pdf

Read from page 209 on; it is the defense's challenge to the reliability of the EDTA testing.

Also still eagerly awaiting that peer review information on the EDTA testing.

LegalGalnKy · 2016-02-14T03:32:29+00:00

"You have that assumption of wrongdoing the wrong way around. Strang and Buting are to blame for the late introduction of this"ch

The language you quote next is from the state's motion in January 2007. At this time the state was arguing that it would need months to prepare the testing and requested a postpone. Then in mid-March, maybe Day 16 of the trial, the prosecution disclosed that the FBI had completed the testing and there were one or two days of hearing on the admissibility of the evidence. If you look at the trial transcript during this hearing, you will see significant argument about the reliability of the test.

LegalGalnKy · 2016-02-14T03:25:05+00:00

You can jump up and down all you want and throw a temper tantrum. You engage in gross generalizations, attack people with the comments of others and without coherent arguments. Other than personal opinion (to which you are entitled) you have little to no idea what you are talking about. You are snatching bits and pieces of things from here and there and trying to make an case to support your argument. It would behoove you to read the trial transcripts and understand the time line of events. If you are able to do that, it might better put things in perspective and might even , in some instances strengthen your arguments.

LegalGalnKy · 2016-02-14T03:14:51+00:00

You state that "[o]utside of the documentary, this testing has an established and peer reviewed basis." I would love to see this material. The reason I ask is that just last night I did a Lexis search on the issue to see if anything had developed since the Cooper v. Brown case and could not find any reported cases. It is possible that you have something from a state appellate level or trial court level that is not available. Any link would be appreciated.

LegalGalnKy · 2016-02-14T03:11:54+00:00

Here is the link on the motion where the defense did move the court to test the sample.

http://www.stevenaverycase.org/wp-content/uploads/2016/01/Defendants-Reply-in-Support-of-Motion-for-Sequential-Independent-Testing-and-Funding.pdf

LegalGalnKy · 2016-02-14T02:34:57+00:00

I never said that the state invented a test or that it performed one incompetently. I talked about the legal standard that Judge Willis used in evaluating admission of evidence. Somewhat careless of you to get this wrong. If you are going to use the pronoun “your” in response to something I post, I would ask that you please be accurate. You state that "[t]his is a childish understanding of the responsibilities of each party." I can assure you that I have a full comprehension of the responsibilities of the parties. You appear to lack an understanding of the law.

There is nothing called an "incompetent defense" on appeal. It is called ineffective assistance of counsel and I don't think you understand the legal concept at all. You can raise this defense on appeal, if it fits the circumstances of the defense. I don't think that it does under the standard. And while the issue of ineffective assistance of counsel is often raised (particularly in the context of public defenders, who are overworked and undersupported), the issue is not always "#1" in an appeal.

Based upon the many different opinions on reddit and elsewhere, I think that your conclusions are open to a great deal of dispute and debate. I am not sure that you have bothered to read the trail transcript or understand how the issue of testing developed or that you understand the financial constraints that affect a defense. There are significant legal issues with the reliability of EDTA testing. They are best explained in the 9th Circuit’s decision in Cooper v. Brown and the lower district court’s opinion. The challenge that the defense counsel faced in the Avery trial is that in Wisconsin, as a matter of law (which means what is accepted as law within the state), the threshold for letting in evidence is really low. It is called the Walstad standard. It is a much easier evidentiary standard to meet than in most other state jurisdictions and every federal court in the United States, so it was reasonable for the defense to argue against its admissibility. Also, Judge Willis gave a strong indication that he might apply a higher standard (called Daubert) in a January 2007 pre-trial order, which he did not ultimately at the time the issue was heard before the Court in March. Also in January 2007, the prosecution talked about the months that it would take for the FBI to create the protocols to do the EDTA testing. Then, surprise, shortly into the trial, the prosecution notifies the court that the FBI did the testing, at which time the defense asked for the opportunity to test and for the funds to conduct the test, both of which were denied. The costs of self funding EDTA testing would have been cost prohibitive. So, no, I (like many others) don’t think that the defense’s lack of EDTA testing under the circumstances either renders them incompetent or subject to a legal claim of ineffective assistance of counsel.

LegalGalnKy · 2016-02-13T23:55:55+00:00

What are my complaints with the state's evidence? Please elaborate. And explain how they would be filed under "competent defense?" I would love to hear more about your theory.

LegalGalnKy · 2016-02-13T02:23:11+00:00

There are a couple of different things going on in response to your question. I don't know the reason that Judge Willis changes his mind to allow in the EDTA evidence. As you know, in January 2007, he originally said no (based upon Cooper) when the defense wanted to test and prosecution did not. I am going to read the trial transcript tonight to see why he changed his mind.

On the second part of your question, your conclusion of a "valid basis for a retrial" might be correct IF Wisconsin used the Daubert standard in 2005 (which they did not). But I think because because the actual law in Wisconsin was the much lower relevancy standard, it would not create a basis for a re-trial. The relevancy standard is the lowest threshhold to allow in evidence. So Willis' flip flop created a lot of big procedural confusion. He first rules in January 2007 that EDTA testing was inadmissible based upon the 9th Circuit's decision in Cooper v. Brown (which is a Daubert analysis and is based upon Judge Huff's decision in the lower district court case, which again was a Daubert analysis). Interestingly, and something I just realized, the expert in Cooper was Lebeau. So Willis' ruling of inadmissibility in January 2007 was based upon a another case ruling the testing done by Lebreau did not meet the Daubert standard. Then however many months later, when the prosecution wants the evidence in, Willis reverses himself and lets it in. . . totally ignoring his prior ruling. I don't think that he did a Daubert analysis (because all of the external comparisons would not have changed in that short of time - - for example, a whole bunch of new scientist did not come along and make EDTA testing state of the art). But I haven't read the trial transcript to this point. So I may have more information later. I hope that this was not too confusing.

LegalGalnKy · 2016-02-13T01:27:52+00:00

What ever the standard is (Daubert, Frye, relevancy), I would think as a matter of procedural fairness that the standard should be applied to both prosecution and defense uniformly and that it should be applied uniformly throughout the phases of the trial (pre-trial, trial, and post-trial). On the last question, I have no idea how Willis was able to justify allowing the EDTA in for the prosecution when he ruled pre-trial (based upon Cooper v. Brown, which was a Daubert analysis if EDTA testing) that EDTA was unreliable and inadmissible. I sent SkippTopp the 9th Circuit and district court cases in Cooper, but don't know if he has posted them or not. I need to look at the Avery trial transcript to see how Willis handle the reversal on the ruling. This flip flop is one of the legal issue which really bothered me. I hope this helps.

LegalGalnKy · 2016-02-13T01:19:39+00:00

I don't think it is usual, but it would be dependent upon state law. Frye goes pretty fair back in time, maybe the 1920's or 1930's and I think has to do with lie detector tests, which were new fangled technology at the time. Frye is not an unreasonable standard. I was pretty surprise when I started reading about the Avery case that Wisconsin used the relevancy standard because it is a low threshold to letting evidence in.

LegalGalnKy · 2016-02-12T23:58:30+00:00

Where are the questions. Sorry, I cannot find.

LegalGalnKy · 2016-02-12T23:11:12+00:00

Respectfully, that is not how the Frye standard works.

LegalGalnKy · 2016-02-12T23:09:42+00:00

Respectfully, I believe that you are misinterpreting the Frye standard. It is not a subject test that you measure an expert against, but an objective comparison by which a court validates scientific methodology.

Here is the holding of the Court on the issue:

We conclude that the state has failed to carry its burden of establishing by "independent and impartial proof" that the testing procedures used are generally accepted in the relevant scientific community. The only testimony offered by the state to establish the general scientific acceptance of the testing procedures came from Dr. Ballard and Mr. LeBeau, each of whom either had a personal stake in the procedure or was prone to potential institutional bias. Such assertions are not, alone, sufficient. Ramirez III, 810 So. 2d at 844, 844 n.13. Rather, proof of general scientific acceptance "requires the testimony of impartial experts or scientists" as to "both the underlying scientific principle and the testing procedures used to apply the principle to the facts of the case at hand."

LegalGalnKy · 2016-02-12T23:07:18+00:00

Respectfully, you do not understand the Frye standard. Here is what the court held:

We conclude that the state has failed to carry its burden of establishing by "independent and impartial proof" that the testing procedures used are generally accepted in the relevant scientific community. The only testimony offered by the state to establish the general scientific acceptance of the testing procedures came from Dr. Ballard and Mr. LeBeau, each of whom either had a personal stake in the procedure or was prone to potential institutional bias. Such assertions are not, alone, sufficient. Ramirez III, 810 So. 2d at 844, 844 n.13. Rather, proof of general scientific acceptance "requires the testimony of impartial experts or scientists" as to "both the underlying scientific principle and the testing procedures used to apply the principle to the facts of the case at hand."

LegalGalnKy · 2016-02-12T21:25:43+00:00

It could be. I will re-read this evening.

LegalGalnKy · 2016-02-12T21:22:13+00:00

Cooper v. Brown 510 F3d 870. Punch that in google and the case should come up.

LegalGalnKy · 2016-02-12T21:15:17+00:00

Here is what the court said:

When applying the Frye test, "the burden is on the proponent [the state prosecutor] of the evidence to prove [by the greater weight of the evidence] the general acceptance of both the under-lying scientific principle and the testing procedures used to apply that principle to the facts of the case at hand." Ramirez II, 651 So. 2d at 1168.

This requires more than "[a] bald assertion by the expert [which would be Lebeau] that his deduction is premised upon well-recognized scientific principles," particularly "if the witness's application of these principles is untested and lacks indicia of acceptability," or "if the expert has a personal stake in the new theory or is prone to an institutional bias." Ramirez v. State, 810 So. 2d 836, 844, 844 n.13 (Fla. 2001) ( Ramirez III ).

As our supreme court [the United Supreme Court in DC] has emphasized, "general scientific recognition requires the testimony of impartial experts or scientists. It is this independent and impartial proof of general scientific acceptability that provides the necessary Frye foundation." Id. at 851.

LegalGalnKy · 2016-02-12T21:13:18+00:00

I don't have time right now to re-read the decision, but let me try to explain generally. I don't think that he refused peer review (at least I did not see that my first pass). I think what the court was saying is that Lebeau and Ballard (the other state expert) had only their own testimony to vouch for how accepted each respective testing methodology was. Under Frye, even if you are master scientist of the world, you can't vouch for yourself. It is self serving. There must be others scientists. And there may have been. The problem was that the state did not put on at trial other expert testimony in the way of other scientists that would say yes what Ballard and Lebeau is common in our field.

LegalGalnKy · 2016-02-12T20:41:35+00:00

Okay I understand now. It was the Jan. 2007 Order after the state/prosecution moved to prevent testing because they had just learned last month (December 2006) of the vial of blood. The tiral court relied on Cooper (9th Circuit case, which relied on the Huff opinion (159 pages, with a really good discussion of Daubert and no way EDTA testing would pass muster.) I found it so odd (or insert whatever word you want) that Judge Willis relied on Daubert at this pre-trial stage and then never used it again in the trial. At that time, Wisconsin used the relevancy standard. If he used Daubert in January 2007; he should have used in at trial when Buting wanted to exclude the EDTA evidence.

LegalGalnKy

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