Thursday, August 21, 2014

Trial Court Error 7 - Excluded Defense Witness 2

Once it was established that there was no porn on Jeff's computers in 2001, Petrovich was going to follow up with another witness to explain why it was there in 2002.

For that, she subpeonaed the attorney Jeff used to work for, Jeffrey Scott Yanuck.

When investigating the possession of child porn case in 2002, Yanuck told federal investigators that he employed Jeff in 2001 to help him with cases, including sex crimes.

The judge excluded Yanuck's testimony as also as irrelevant.

However, the law as established in People v Callahan states that "It appears to us that section 1108, subdivision (a) allows the prosecution to introduce a particular type of evidence (“evidence of the defendant's commission of another sexual offense or offenses”)

Once the prosecutor has done this, the defendant is faced with the task of rebutting (if the defendant chooses to attempt to do so) the prosecution's character evidence.

... Because there is no statute expressly limiting the type of rebuttal character evidence a defendant may present when the prosecution has introduced section 1108, subdivision (a) character evidence, the defendant is permitted to introduce any or all of the three types of character evidence - opinion evidence, reputation evidence, and evidence of specific incidents of conduct."

The jury was free to weigh the relevance of the testimony, but he was clearly allowed to present it.

There was a bit of a kerfuffle over Yanuck's testimony.

Although initially cooperative with Petrovitch, once it became clear that she intended to call him as a witness, things changed dramatically.

He stated he did not want to testify and attempted to avoid being served.

Once served, he failed to appear and the judge had to issue a warrant for his arrest.

Once forced to appear during the trial, he threatened to "Sink his ass" if put on the stand by the defense.

However, he had already made statements to federal investigators in 2003 and to the defense team in the current case.

Then he claimed not to remember what he told the federal investigators in 2003.

He claimed not to remember what he told the defense investigator or Petrovich a few weeks earlier.

Suddenly he didn't remember working on any sex crime cases with Jeff at all and minimized Jeff's role while they worked together to "Making charts and stuff."

A clear case of "Memoryitis," but there is plenty of evidence to refresh his recollection. account records shows that at the same time he started working for Yanuck, Jeff ordered 3 books about sex crime investigation.

As a Court appointed attorney there would be records of what cases Yanuck was assigned to during that period of time and Jeff could provide the names of cases he worked on and what his input was.

Jeff claims that there are other attorneys, Yanuck's office staff, Court staff, victims, witnesses, and even some judges who might remember them as working together.
Petrovich subpoenaed Jeff's phone records for the trial.

His phone records show calls from Jeff's phone to a number he claims is Yanuck's.

Sometimes up to 25 a day.

Over 1000 of them during the course of several months during the time period Yanuck admitted employing him. The times ranging from 6 am to 11 pm.

This supports Jeff's story, which is that they worked together daily for 6 months.

They went to court together daily and Jeff worked on the cases at nights and on weekends.

Jails record incoming and outgoing mail to attorneys. The records show that Yanuck corresponded with Jeff for years after his arrest.

Yanuck's attempt to downplay Jeff's role to, "He used to make charts and stuff..." is clearly ridiculous, but it may have muddied the water in regards to admissability of his testimony.

But, even if Yanuck changed his story that dramatically, Petrovich could have followed up by putting the federal investigator on the stand to testify about what Yanuck actually said back in 2003.

All of that goes to the weight of the evidence, not its admissibility.

The jury could have considered his testimony after they heard it and decided what to do with it.

The fact remains that when told there was a potential explanation that the prior was not sexual, the jurors said it likely would have made a difference in their decision had they heard it.