1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 6 MR. BARKET: So what? THE COURT: I'm sorry. MR. BARKET: It happens over and over and over again. THE COURT: Mr. Barket, let's please proceed, okay? MR. BARKET: God. MS. ALDEA: Your Honor, at the conclusion of the People's case the defense is going to move for a trial order of dismissal. We're moving for a trial order of dismissal on the grounds that the People's case is not legally sufficient to establish the elements of murder in the second degree. And that's both elements of the offenses charged, both that Cal killed Michele, and that he did so intentionally. We think that the People have failed to prove either of those elements. First, the People failed to establish that Cal actually killed Michele. Of course there's no direct evidence of this. And while the People can rely on circumstantial evidence and of course can also prove that a murder occurred or that a homicide occurred without having a body, the circumstantial evidence has to be legally competent to prove this without requiring the jury to make impermissible inferences that are drawn from the equivocal evidence.
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Transcript
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MR. BARKET: So what?
THE COURT: I'm sorry.
MR. BARKET: It happens over and over and over
again.
THE COURT: Mr. Barket, let's please proceed,
okay?
MR. BARKET: God.
MS. ALDEA: Your Honor, at the conclusion of the
People's case the defense is going to move for a trial
order of dismissal. We're moving for a trial order of
dismissal on the grounds that the People's case is not
legally sufficient to establish the elements of murder in
the second degree. And that's both elements of the
offenses charged, both that Cal killed Michele, and that
he did so intentionally. We think that the People have
failed to prove either of those elements.
First, the People failed to establish that Cal
actually killed Michele. Of course there's no direct
evidence of this. And while the People can rely on
circumstantial evidence and of course can also prove that
a murder occurred or that a homicide occurred without
having a body, the circumstantial evidence has to be
legally competent to prove this without requiring the jury
to make impermissible inferences that are drawn from the
equivocal evidence.
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The Court of Appeals has instructed in numerous
cases --
THE COURT: Sorry to interrupt you, but do you
think we should let the jurors go? Are you going to be a
while?
MS. ALDEA: I don't think it's going to be
particularly long, your Honor. So I'm anticipating that
my argument should be concluded probably in about 15,
20 minutes. I don't know how long the prosecution's will
be.
THE COURT: Well, it might make more sense to
let the jurors go for lunch and then we can take a shorter
lunch.
MS. ALDEA: Okay, that's fine.
MR. BARKET: Here's the problem with that,
Judge, is that now they think it's because I don't have
something that I was supposed to have now. That's what
they're going to say.
THE COURT: Well, I'll instruct them that there
are being motions made after the People have closed their
case. Do you want me to say something specific? I'm
happy to do that.
MR. BARKET: Yes, I think you should tell the
jury that the defense has no obligation to produce any
material to the prosecution until after some legal
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arguments are had at the conclusion of the People's case,
and that you are going to let them go for lunch, we will
do the legal arguments and they can come back in the
afternoon.
MR. MARTIN: I'm not sure that's what the
statute says, Judge.
MR. BARKET: Well, I don't care what the statute
says because given what the judge just did there needs to
be a cure for that.
THE COURT: Well, I'll say that. I don't
necessarily think there needs to be a cure for anything,
but it may solve that. We'll bring the jurors back.
Mr. Barket, please stop the stage whispers.
MR. BARKET: The what?
THE COURT: Stage whispers.
MR. BARKET: They're not stage, Judge. Do you
want to know what I was saying? I'll be happy to share it
with the Court. I was just talking to Ms. Aldea.
THE COURT: Happy to -- well, don't say it now.
(The jury entered the courtroom.)
THE COURT: You can all have a seat. What I'm
going to do is -- I know you haven't done much today, but
I'm going to have you break for lunch and come back at
one. Once the People have formally rested I have to hear
some motions. And also I'll tell you I kind of jumped the
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gun to ask the defense to produce any materials. They
don't have an obligation to do that until after I've heard
all the arguments if indeed then they even have to. So
just if you can ignore that I asked them to produce
anything. And it's no one's fault, I'm sorry that we
couldn't get everything done on Monday. And the People
rested and then as I say there's formal legal things that
have to be done. Hopefully we'll get those done by one
o'clock so we can then proceed.
So I will remind you of all your admonitions and
hopefully I'll see you back here at one. Thank you.
(The jury exited the courtroom.)
MR. BARKET: Thank you, Judge.
THE COURT: You're welcome. Sorry to interrupt
you.
MS. ALDEA: That's okay, no problem. So while
circumstantial evidence is competent to prove a case,
obviously what is required is that the circumstantial
evidence be competent to prove this without requiring the
jury to make impermissible inferences drawn from the
applicable evidence.
The Court of Appeals has cautioned this on
several occasions in several cases. The Courts
specifically said that close judicial supervision in jury
verdicts based solely upon circumstantial evidence is
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necessary to ensure that the jury does not make inferences
which are based not on the evidence presented but rather
on unsupported assumptions drawn from evidence equivocal
at best. And that's in People versus Kennedy in reviewing
legal sufficiency under the same standards that this Court
will apply in the trial order of dismissal.
Similarly, the Court of Appeals in People versus
Cleague has stated that the Court should be mindful that,
quote, the danger with the use of circumstantial evidence
is that of logical gaps. That is, subjective inferential
links based on probabilities of low grade or insufficient
degree, which if undetected, elevate coincidence and
therefore suspicion into permissible inference.
This Court's function as the gatekeeper in
determining this trial order of dismissal motion is to
ensure that the People's proof is actually based on
competent evidence and does not require the jury to make
those inferential leaps that the Court of Appeals has
prohibited.
So, in this case in applying that to the first
element of the crime of murder in the second degree, there
is in this case, first of all, no proof that Michele came
home after she went to Brian Earley's house on the evening
of September 11th. And this case is somewhat unique in
this Court's review because while of course the Court
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wouldn't be bound by any decision that is made in a prior
case even by the Appellate Division. This is a case where
on evidence that came out at the prior trial, which was
actually a lot stronger than the evidence that has been
presented in this case, there was at least -- well, there
was one judge in the Appellate Division who found that the
evidence was legally insufficient to sustain a conviction,
and there was also a judge in the Court of Appeals who
found the same.
But what I think is instructed in the Appellate
Division's majority decision from the prior trial is that
the Court sets forth why it believes that the
circumstantial case there was legally sufficient or met
that standard even though it met it by not a lot in that
first trial. And so I'm going to compare some of what was
elicited in that first trial and some of what the
Appellate Division relied on to the evidence that came out
here.
The first thing is that, as I said, in this
trial there was no proof that Michele even came home after
she left Brian Earley's house and there's certainly no
proof that she set foot into the Harris home at any point
on the night of September 11th. In the prior trial Earley
testified that Michele went home, and the Appellate
Division majority relied on that in its decision to
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establish that Michele was in fact there.
In this case that testimony did not come out.
In fact, Brian Earley in this trial was prohibited from
testifying that she came home because he recognized that
that was based solely on his suspicion or on his surmise,
it was not based on his observation or anything that he
knew, and so it was inadmissible. So that link, that
proof that the People relied on before to even establish
the fact that she was there, which was essential to their
circumstantial theory of opportunity, is missing in the
case that has been presented at this trial.
Additionally, although Michele's van was at the
bottom of the driveway, there have been numerous witnesses
that have testified before this Court, People's witnesses,
that have said that Michele's van was parked there on
other occasions at other times. So it was not uncommon
for Michele to leave her van and to go out elsewhere.
Nikki Burdick in fact testified that while she
didn't have Michele's van -- she didn't see Michele's van
parked at the bottom of Michele's driveway, Michele would
leave her van to go out drinking or to go out with other
people in parking lots, in the parking lot at Lefty's, and
they would go together.
And so the presence of Michele's van at the
bottom of the driveway cannot, without that impermissible
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inferential leap, establish that Michele actually went
home. Without that evidence, the People's proof of
opportunity is completely lacking in this case. So that
first element that the People would rely on in the
circumstantial case to prove that a crime actually
occurred is absent.
The second element is that there's no proof that
there was any crime at all that was committed in the
house. The People tried to paint the house as a crime
scene by relying on the minute quantity of blood that was
there. But the minute quantity of blood in that house is
inconsistent with a murder scene. And there is no
testimony at this trial that has established otherwise;
that has established that it would be consistent or that
it would be something that would be suggestive that there
was in fact a murder scene there.
This Court, like the jury, does not have to
abandon all common sense in the evaluation of the trial
order of dismissal. And so for the People's theory to be
accurate that there was a murder that occurred in that
house, it simply does not make sense, it defies logic and
common sense that there would be a total of less than an
eighth of a teaspoon of blood total at that scene.
Additionally, what the People's expert did
testify to is that it would be also, including the blood
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spatter that was found, would be equally consistent with a
cut hand. In the prior trial there was no testimony that
Michele had a cut hand. There was no evidence of that.
In fact, Dr. Lee even at this trial said that there would
be no proof of that, that there was no evidence that ever
happened.
In this trial for the first time there was
evidence that there was a cut hand. And in fact, the
Appellate Division specifically found in its decision that
it was most significant that there were -- let me actually
find it, sorry. The Appellate Division found in its
decision, I'll quote, particularly given the lack of any
plausible explanation for the victim's recently spattered
blood found in the home, a valid line of reasoning and
permissible inferences could lead a rational person to the
conclusion of guilty on the basis of the evidence at
trial.
Again, particularly given the lack of any
plausible explanation for the victim's blood. In this
trial, unlike in the prior one, we have a plausible
explanation for the victim's blood. We have the fact that
she cut her hand and she cut her hand in the driveway of
the family home close to where the blood was in fact
found, where she would enter the home through the garage
and through the foyer area.
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Moreover, there is no proof in this trial that
the blood was actually Michele's. In this regard there
was testimony that there was animal blood in the area that
the blood was found in the garage. There was testimony
that there was no species test that was done on most of
the blood for human blood. And there was testimony that
there was no testing done, although it could have been
available, to determine whether the DNA in fact came from
the blood or whether the DNA had been posited there by
some other means, which would include skin cells, mucus.
There were no amylase tests done on this blood to
ensure -- on the DNA or the blood for that matter,
contrary to the recommendation of Henry Lee of the
People's experts.
And so in this case the Appellate Division's
conclusion from the prior trial that there was evidence
that Michele's blood was actually there does not exist.
That evidence is simply missing from this trial. And to
the contrary, has come out that the fact that there was
blood that may or may not have been human blood, and the
fact that there was DNA that may or may not have come from
the blood again presents one of those logical gaps in the
evidence that the People simply have not filled through
their direct case in this trial and that the jury is
simply not allowed to make that kind of inferential leap.
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And so for that reason as well the People have failed to
prove that anything happened in the house.
Additionally, the Appellate Division's decision
on sufficiency found it, quote, most significant that,
quote, hundreds of recent stains had been caused by the
spattering of her blood. Referring to Michele's blood.
Again, not only is there no proof in this trial that it
was in fact Michele's blood -- and that evidence did come
out differently here than it had before. But moreover,
there was in this trial, thanks to this Court's prominent
ruling on this matter, no proof of the recency.
The Appellate Division's decision hinged on the
recency. It mentioned that numerous times in the majority
decision. The victim's recently spattered blood. The
hundreds of recent stains. In this trial the People could
not establish the age of the blood because there is no way
that that can be scientifically documented or determined.
And frankly, your Honor, when you read the
majority opinion, without the recency element the
Appellate Division would not have concluded that there was
a valid line of reasoning and permissible inferences as
opposed to impermissible ones that could lead a rational
person to the conclusion that in fact there had been a
crime that had been committed there. When that's coupled
with the cut hand that would be a plausible explanation
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for the blood, there is simply no proof of a crime scene.
Finally -- or actually not finally, but I guess
finally on the point of opportunity, it's established that
opportunity like motive can not fill the gap in proof.
Opportunity like motive is a form of evidence that is
weak, that is obviously circumstantial, and that is not
necessary and does not establish and cannot be used to
establish any element of the crime.
The Appellate Division found proof that Michele
left Earley's house at 11 o'clock to go to the family
home 20 minutes away. Again, at this point there's no
proof of that, that's sheer speculation on this record and
contradicted by the testimony that came out. The
Appellate Division found proof that Michele always came
home and that September 12th was the first morning that
she did not come home. At this trial there was proof to
the contrary.
Brian Earley specifically testified that there
were mornings that he would wake up to go to work at 6 or
6:30 and Michele would still be in bed sleeping. There
was testimony that came out both from Brian Earley and
from Pam Brock that Michele did in fact spend nights
outside of the family home. And so that is testimony that
would refute on this record the finding that the Appellate
Division relied on for opportunity.
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So the Appellate Division's conclusion of
opportunity on this record that the People demonstrated
that Michele returned home and that seven hours passed
until Cal called Barb Thayer giving him the opportunity to
kill her and dispose of her body is simply no longer
valid. That line of inferences is no longer permissible.
And so the People's proof of opportunity on this record no
longer exists.
With respect to motive, the People have
identified the motive in this case as Cal's desire to
avoid an expensive appraisal; as the looming trial date in
October of 2001; as the divorce and equitable distribution
and the desire to avoid spending that money; and most
importantly, as his desire to maintain control. But all
of this proof of motive only follows if, as the Appellate
Division found on the record that was then before it after
the second trial, that Michele, quote, the Appellate