I hope there will be serious consequences for the prosecution if they really did this, particularly in a case they attempted to turn into dispute over what one blurry frame suggests:
I see no more signs of provocation in the HD version than in the lo-res version of this scene.
That said, rules are rules and the rule is that the prosecution and the defense should both start a trial with the same evidence and argue about what it means. The many seasons of Perry Mason (or Matlock, or a dozen others) during which each episode Perry would surprise his opponents with NEW evidence that he, himself, had just uncovered have given us all a false impression of how trial rules work. The prosecution has introduced new evidence during the trial, and has changed his argument between opening and closing remarks, such that now the
Another annoying part of the process -- a system and structural inequity, if you will -- is that the totality of what is known can NOT be admitted to the trial. It may be known to both teams of lawyers, to the judge, and to the press that those shot were mentally impaired, on drugs, had criminal history, were themselves charged with various crimes during the riots, etc. None of that data can be admitted into evidence because even scum-buckets have the right to the state's protections (such as they are) from violence. It may be known to many that KR had mouthed off about a desire to loose some rounds in the general direction of those he considered scum-buckets. That can't be admitted, because opinions, speech, and even reckless past actions do not relate to the present dispute about who threatened whom.
It is not entirely clear to me that omitting the totality of all known circumstances does, in fact, produce more just results. But we have limped along this far under rules of this sort since the days of the Magna Carta, and far be it from me to attempt to invent better rules, on the basis of this case, right now and on the fly.
The sordid histories of the men who were shot were withheld because Kyle Rittenhouse wasn't aware of them at the time. If he had been aware, there might have been a fight over balancing the probative value of the evidence against its likely prejudicial value, but if it were clear that it bore on Rittenhouse's reasonable perceptions of threat, it would clearly have been probative in the self-defense context.
Re the Perry Mason dramatic surprises: the defense can still spring surprises on the state, I think, though there's some control over that built into the trial procedures and stipulations and so forth. The state, however, has an inviolable duty to turn over all evidence that might tend to exonerate the defendant, not just at trial but during the prep period. Failure to do so is a very serious offense. The prosecutor had better hope he can convince the judge that the email system compressed the file unbeknownst to him. Also, I remain a little unclear whether the jury saw the hi-res or the lo-res version, which is an even more serious problem.
if they really did this [not transit the higher res video to the defense until after evidence discussion was over]
They really did do it; they've confessed it: they're laying it off to an inadvertent compression of the video when it was "transferred" from their system to the defense's system.
They never bothered to confirm the success or failure of the transfer.
The question of whether the failure was accidental or deliberate is irrelevant: it happened, and it concerned a bit of evidence central to their thesis of Rittenhouse being the one provoking. That evidence was important enough that the mere fact of the failure should have been enough for a with prejudice mistrial (my speculation is that the judge was giving the jury a chance at a vindicating acquittal rather than his mistrial after the verdict, which would have left Rittenhouse under a cloud) absent an acquittal, and it should result in the prosecutors' firing for cause at the very least.
It also should result in the prosecutors' law licenses being suspended (if not revoked permanently) until they've passed, with B+ or higher grades, a year long college course in ethics and the repetition of their first year law program.
My understanding is that these two were assistant prosecutors for the county; if that's true, they had a boss. The judge should hale that boss into his court for a public hearing on why he let his employees conduct themselves and that prosecution in the manner that they did.
The prosecutor had better hope he can convince the judge that the email system compressed the file unbeknownst to him.
Doesn't matter to this layman. As a Test Director in some pretty serious testing environments, the failures here are two: one is the failure to transmit, even if the form of the failure was the email system's doing. The other, and fatal IMNSHO, error was the failure to check to see whether the material had been received as transmitted.
I remain a little unclear whether the jury saw the hi-res or the lo-res version....
My impression, based on no hard data, is that that's what the jury saw when they asked to come into the courtroom/had to come into the courtroom to watch because they couldn't get the hi-res to play on their jury room system--because they didn't have a hi-res video to display. If they didn't have it to begin with, that raises the question of how they learned that it existed, and I have no good answer to that.
I see no more signs of provocation in the HD version than in the lo-res version of this scene.
ReplyDeleteThat said, rules are rules and the rule is that the prosecution and the defense should both start a trial with the same evidence and argue about what it means. The many seasons of Perry Mason (or Matlock, or a dozen others) during which each episode Perry would surprise his opponents with NEW evidence that he, himself, had just uncovered have given us all a false impression of how trial rules work. The prosecution has introduced new evidence during the trial, and has changed his argument between opening and closing remarks, such that now the
whole incident depends on KR's provocation.
Another annoying part of the process -- a system and structural inequity, if you will -- is that the totality of what is known can NOT be admitted to the trial. It may be known to both teams of lawyers, to the judge, and to the press that those shot were mentally impaired, on drugs, had criminal history, were themselves charged with various crimes during the riots, etc. None of that data can be admitted into evidence because even scum-buckets have the right to the state's protections (such as they are) from violence. It may be known to many that KR had mouthed off about a desire to loose some rounds in the general direction of those he considered scum-buckets. That can't be admitted, because opinions, speech, and even reckless past actions do not relate to the present dispute about who threatened whom.
ReplyDeleteIt is not entirely clear to me that omitting the totality of all known circumstances does, in fact, produce more just results. But we have limped along this far under rules of this sort since the days of the Magna Carta, and far be it from me to attempt to invent better rules, on the basis of this case, right now and on the fly.
The sordid histories of the men who were shot were withheld because Kyle Rittenhouse wasn't aware of them at the time. If he had been aware, there might have been a fight over balancing the probative value of the evidence against its likely prejudicial value, but if it were clear that it bore on Rittenhouse's reasonable perceptions of threat, it would clearly have been probative in the self-defense context.
ReplyDeleteRe the Perry Mason dramatic surprises: the defense can still spring surprises on the state, I think, though there's some control over that built into the trial procedures and stipulations and so forth. The state, however, has an inviolable duty to turn over all evidence that might tend to exonerate the defendant, not just at trial but during the prep period. Failure to do so is a very serious offense. The prosecutor had better hope he can convince the judge that the email system compressed the file unbeknownst to him. Also, I remain a little unclear whether the jury saw the hi-res or the lo-res version, which is an even more serious problem.
Rittenhouse has been acquitted. Now I hope the prosecutor has some serious charges to answer to. Glenn Beck says he will fund defamation suits.
ReplyDeleteif they really did this [not transit the higher res video to the defense until after evidence discussion was over]
ReplyDeleteThey really did do it; they've confessed it: they're laying it off to an inadvertent compression of the video when it was "transferred" from their system to the defense's system.
They never bothered to confirm the success or failure of the transfer.
The question of whether the failure was accidental or deliberate is irrelevant: it happened, and it concerned a bit of evidence central to their thesis of Rittenhouse being the one provoking. That evidence was important enough that the mere fact of the failure should have been enough for a with prejudice mistrial (my speculation is that the judge was giving the jury a chance at a vindicating acquittal rather than his mistrial after the verdict, which would have left Rittenhouse under a cloud) absent an acquittal, and it should result in the prosecutors' firing for cause at the very least.
It also should result in the prosecutors' law licenses being suspended (if not revoked permanently) until they've passed, with B+ or higher grades, a year long college course in ethics and the repetition of their first year law program.
My understanding is that these two were assistant prosecutors for the county; if that's true, they had a boss. The judge should hale that boss into his court for a public hearing on why he let his employees conduct themselves and that prosecution in the manner that they did.
Eric Hines
The prosecutor had better hope he can convince the judge that the email system compressed the file unbeknownst to him.
ReplyDeleteDoesn't matter to this layman. As a Test Director in some pretty serious testing environments, the failures here are two: one is the failure to transmit, even if the form of the failure was the email system's doing. The other, and fatal IMNSHO, error was the failure to check to see whether the material had been received as transmitted.
I remain a little unclear whether the jury saw the hi-res or the lo-res version....
My impression, based on no hard data, is that that's what the jury saw when they asked to come into the courtroom/had to come into the courtroom to watch because they couldn't get the hi-res to play on their jury room system--because they didn't have a hi-res video to display. If they didn't have it to begin with, that raises the question of how they learned that it existed, and I have no good answer to that.
Eric Hines