Friday, August 22, 2014

Trial Court Error 4 - Misunderstood the defense's argument

Defense attorney, Linda Petrovich, made an attempt to get the witness testimony admitted to explain the circumstances surrounding the prior conviction, but the judge misunderstood her argument.

MS. PETROVICH: "Well, I have an objection regarding the whole 1108 issue. But
notwithstanding that, maybe Mr. Yanuck
would testify -- it's not that he would
be offering testimony to
somehow defend against that conviction, but ... Here's how I see
it: I mean, the whole purpose behind
Mr. Smith trying to get in the possession of the
pornography is to show that he had some interest in children or some intent to molest. So the purpose of having Mr. Yanuck come in  is that Mr. Yanuck would beable to testify that he had hired Mr. Duffett -- strange as this sounds, it is true -- to perform some work for him in a criminal investigative sense on a pedophilia cases. Yanuck would not come in and say, I authorized him to download child pornography. However, he would be able to offer that he did have a
paid working relationship with Mr.
Duffett in the investigation of pedophilia for Mr. Yanuck's office."

But a number of times, the judge says things like "There's just no getting around the fact that Mr. Duffett pleaded guilty to the charge in federal court in Nevada and what, in essence, you wanted to do was relitigate to show that he was in fact innocent."

Petrovich tried again, in her motion for a new trial, to explain that the witnesses were to rebut the propensity evidence and offer the jury a non-sexual explanation for the conviction, but the judge kept saying she was trying to relitigate the conviction and excluded the witnesses for that purpose.