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Monday Night TV and Open Thread

I'll be watching The Bachelorette and posting on PopLeft.

The Lakers and Nuggets square off again in Game 4 of the WCF at the Pepsi Center. the Lakers are leading 2 to 1. Go Nuggets! (But they can't compete with The Bachelorette.)

I hope you all had a good weekend, we had three days of rain.

A legal question from the TL kid for any lawyers reading: Defendant is being re-tried and the victim is unavailable. Can the prosecutor call a juror from the first trial as a witness at the retrial to testify about a gesture the victim made while on the stand? The record of the victim's testimony at the first trial does not reflect the gesture.

This is an open thread, all topics welcome.

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    I've taken Zyrtec, and it's making me drowsy (none / 0) (#1)
    by andgarden on Mon May 25, 2009 at 06:41:52 PM EST
    In the mean time, I'm apprehensive about California tomorrow.

    Any idea what time (none / 0) (#2)
    by caseyOR on Mon May 25, 2009 at 06:50:28 PM EST
    the California Supremes will release their decision tomorrow? I, too, am apprehensive. I wish I had a better feeling about the outcome.

    Parent
    Around lunchtime EDT, I think (none / 0) (#3)
    by andgarden on Mon May 25, 2009 at 06:52:38 PM EST
    Greetings from DIA (none / 0) (#4)
    by ruffian on Mon May 25, 2009 at 07:19:29 PM EST
    Awaiting my connection from Sacramento to Orlando. Stop by gate B36 if you are here. I'm wearing turquoise and a smile.

    Predictions? (none / 0) (#5)
    by KeysDan on Mon May 25, 2009 at 07:24:40 PM EST
    Mine, bad news for equality: (a) sustain the popular vote on Proposition 8, (b) sustain the validity of those licenses issued since the California Supreme Court ruling, creating a real mess.

    It would be more than a mess (none / 0) (#6)
    by andgarden on Mon May 25, 2009 at 07:28:26 PM EST
    It would be an indication that the California Supremes are not at all interested in restraining the mob and reaffirming constitutional government.

    Parent
    The Nougats can't afford (none / 0) (#7)
    by brodie on Mon May 25, 2009 at 07:37:02 PM EST
    to fall behind 3-1 against the once and future champs.  They have quality talent in Chauncey Gardner, Melo, and Néné, and are once again playing at the friendly oxygen-starved confines of Mile High Stadium.

    On the Lakers side, the best player in the playoffs this year and easily one of the 3 best clutch players of all time, Kobe Bryant, is exhausted and Trevor Ariza is beat up after a solid G3 performance.  Lamar Odom -- a talent consistent for being inconsistent, except in guarding inbounds passers -- and Gasol will need to pick up the offensive pace tonight to make this one close.  It would also be helpful if young Andrew Bynum showed up to play some monster D, but I'm skeptical.  

    This one is likely going the home team's way tonight, maybe even by a fair margin.

    Ultimately though, the Lakers will prevail in the series, 4-2.

    There was recently (none / 0) (#11)
    by CoralGables on Mon May 25, 2009 at 08:32:43 PM EST
    a five year analysis of basketball players taking shots when their team was tied, or behind by one or two points, with under 24 seconds remaining in the game.

    Of course, the natural tendency is to think Kobe rocks in this situation. But as in most things, what we believe based on a memory from the past is rarely the truth.

    In the five year period, 14 players had made 10 or more game winning FG's at games end. Here are the 14 ranked by their shooting percentage in that situation:

    1.  Carmelo Anthony
    2.  Allen Iverson
    3.  Ray Allen
    4.  Rashard Lewis
    5.  Ricky Davis
    6.  Ben Gordon
    7.  Paul Pierce
    8.  Lebron James
    9.  Dirk Nowitski
    10. Vince Carter
    11. Dwayne Wade
    12. Joe Johnson
    13. Jamal Crawford
    14. Kobe Bryant

    Kobe Bryant took the most game winning attempts, and ranked dead last of the 14 in shooting percentage in that situation shooting just 25%.


    Parent
    Lies, damned lies and (none / 0) (#16)
    by brodie on Mon May 25, 2009 at 09:36:01 PM EST
    statisterics!

    Now, what's missing here is the total number of clutch field goal attempts for Kobe and all the rest.  With more attempts for Kobe, the overall average is going to go down over time.

    It would also be interesting, as a further test of the worthiness of such so-called evidence, to go back further in time and see about Jordan's percentages in a 5-yr period.  Or those of Jerry West, Mr Clutch himself.

    Thing is though, I wouldn't have any doubt about the following:  if you asked all the NBA coaches to pick the one player right now they would either most want to give the ball to in clutch time with the game on the line or would fear having the ball, I'm positive that survey would put Kobe at the top.  With D Wade, Ray Allen and LeBron also scoring high.

     

    Parent

    Denver is officially chickensh*t (none / 0) (#24)
    by Dadler on Mon May 25, 2009 at 10:26:05 PM EST
    Dahntay Jones tripping Kobe Bryant on purpose ends all respect I have for that team.  He already tried to hurt Bryant by pushing him in the back last game.  Dirty player, dirty team, they deserve nothing.  Jones deserves to be seriously pounded the next time he goes to the hole.  Hope he tears an ACL that ends his career.  In high school I was pushed in the back like that on a breakaway layup.  Tore my knee to shreds and, thought I played a bit in college, I was never the same.  Players like that get what they have coming in the end.  Piece of sh*t.  

    Parent
    And he better be suspended (none / 0) (#25)
    by Dadler on Mon May 25, 2009 at 10:28:27 PM EST
    If Jones doesn't at least get suspended for the next game, the NBA is more of a joke than I thought.

    Parent
    And now a dirty elbow from JR Smith (2.00 / 1) (#26)
    by Dadler on Mon May 25, 2009 at 10:33:49 PM EST
    And at least he got a T.  What a phucking bunch of classless thugs Denver is, never woulda guessed.  How sweet it'll be to kick their cheating aces outta the playoffs.  

    Parent
    Dirty, classless AND stupid (2.00 / 1) (#29)
    by Dadler on Mon May 25, 2009 at 10:48:38 PM EST
    The Nuggets are the biggest bunch of idiots I have ever watched play an NBA game.  Losers.

    Parent
    okay it's tied 2-2 (2.00 / 1) (#34)
    by Dadler on Mon May 25, 2009 at 11:05:31 PM EST
    Denver put up the most unprofessional win in NBA playoff history, they can stake their claim to that and be "proud".  This series is going to get very ugly, I fear.  Fistfight ugly.  That's what the Nuggets want, though, obviously.

    Parent
    Waaaaa. (2.00 / 1) (#44)
    by MileHi Hawkeye on Tue May 26, 2009 at 08:43:21 AM EST
    Poor little Lakers.  Guess you have to have some excuse when you get out-played and out worked.      

    Hey Dadler, I sure didn't see you commenting on how dirty the Lakers were when Fisher floored Scola in the Houston series. Or when your boy Kobe elbowed Battier and kicked him, and elbowed Artest in the throat.

    It's NBA play-off basketball, not powder-puff football.  

    Parent

    Now if we could get NBA officials... (none / 0) (#45)
    by kdog on Tue May 26, 2009 at 09:01:28 AM EST
    to learn how to eat that whistle and let the players decide the game we will be really getting somewhere.

    Go Nuggets!


    Parent

    I didn't see the game (none / 0) (#37)
    by Jeralyn on Mon May 25, 2009 at 11:32:00 PM EST
    but the local news isn't reporting anything but they played a great game. Are you sure you're not just sore your team didn't win?

    Parent
    as a man with no allegience to any basketball (none / 0) (#39)
    by of1000Kings on Mon May 25, 2009 at 11:55:32 PM EST
    team, I have to say that if Jones isn't suspended it should be a black eye on the NBA...

    blatantly tried to injure Bryant after Bryant drove past him just inside the 3-point line...

    I don't watch a ton of basketball anymore (too much traveling, too much free-throw line, too much ego) but I've been enjoying this series...

    it's been feisty, that's for sure...I half expect a full-on brawl to break out at any minute...you can definitely feel the hate and tension between the teams...

    20 years ago Denver's feistiness/aggression would have been considered the trademark of a championship team (think Detroit)...
    don't believe LA has the type of players to compete in this type of extremely physical series...

    Parent

    I was just over a PL (none / 0) (#8)
    by nycstray on Mon May 25, 2009 at 08:11:59 PM EST
    and was going to leave a comment, but my being logged into my blog there doesn't give me access to comment on PL. Do I need to create a sep account at PL? When I try to log in at PL with my WP user name, it says it doesn't exist?

    yes, you have to register at PopLeft (none / 0) (#9)
    by Jeralyn on Mon May 25, 2009 at 08:20:06 PM EST
    You can use the same user name/password, but you have to register it. Come on over!

    Parent
    Thanks! (none / 0) (#20)
    by nycstray on Mon May 25, 2009 at 10:10:49 PM EST
    I'll sign up tomorrow :) I was afraid to try too many options because I didn't want to screw up my account which is on auto password on my computer. Gone are the days when I remember all my passwords and important numbers, lol!~

    Parent
    Nobody's answered your TL question yet (none / 0) (#10)
    by rdandrea on Mon May 25, 2009 at 08:28:31 PM EST
    And I'm not a lawyer.  I'm just a regular citizen with some common sense (maybe).  In other words, I'm the kind of person who might be selected for a jury.

    I can't for the life of me see what a juror from the first trial has to offer.

    The juror was not a witness to the alleged crime.  Anything the juror heard at trial was hearsay.

    What possible value is any of this toward seeking the truth?

    thanks, (none / 0) (#12)
    by Jeralyn on Mon May 25, 2009 at 08:35:51 PM EST
    seems to me it wouldn't be allowed but he's looking for the legal ground to object on and neither one of us could find any other cases on point. It seems like a no-brainer but the reason isn't popping up for me. Appreciate your addressing it!

    Parent
    Without the testimony of the victim, (none / 0) (#18)
    by oculus on Mon May 25, 2009 at 09:53:05 PM EST
    will the juror's testimony regarding the victim's gesture be relevant?  

    Parent
    I would argue (none / 0) (#21)
    by Steve M on Mon May 25, 2009 at 10:12:00 PM EST
    that the gesture is testimonial in nature, thus hearsay, but of course it depends on the purpose for which the testimony is offered.

    Parent
    What's the legal ground for (none / 0) (#38)
    by ding7777 on Mon May 25, 2009 at 11:36:59 PM EST
    allowing blind jurors to serve who may miss the demeanor of a witness?

    Parent
    Common sense, maybe (none / 0) (#13)
    by gyrfalcon on Mon May 25, 2009 at 08:36:30 PM EST
    Reading comprehension not so much.

    What the prosecutor wants the juror to testify about is something that happened in the courtroom at the previous trial, a gesture made by one participant.

    That's not hearsay, that's direct eyewitness testimony.

    Parent

    Except that it is hard to believe the (none / 0) (#17)
    by Inspector Gadget on Mon May 25, 2009 at 09:47:19 PM EST
    juror would be in a position to know what the victim meant by any gesture. That's pretty clearly speculation. If the person who made the gesture isn't there to dispute or confirm the testimony, is that fair?

    Had I been the juror, I guarantee you that is more responsibility than I would be willing to take on in a court of law.

    Parent

    aren't some gestures and accompanying (none / 0) (#19)
    by nycstray on Mon May 25, 2009 at 10:08:31 PM EST
    body language (and/or words) pretty much obvious?

    I can think of a few . . . .

    Parent

    I wouldn't ever come to that conclusion (none / 0) (#22)
    by Inspector Gadget on Mon May 25, 2009 at 10:13:40 PM EST
    myself.

    I can think of many gestures that could be mistaken. A simple wave could mean hello, or a slow brush of a flying bug.

    This is a court of law where the VICTIM is being subjected to the possibility of a juror from a previous trial interpreting a gesture. The two people don't know a thing about each other.

    I've seen people blow a kiss to someone as a way of saying, "good-bye, a**hole".


    Parent

    Maybe the victim is actually (none / 0) (#23)
    by nycstray on Mon May 25, 2009 at 10:25:26 PM EST
    an instigater or something along those lines? Sometimes that's pretty darn clear. I think someone could give their impression/what they saw in that regard. If a juror can't give an account of that, why do we even have eyewitnesses? Or witnesses for that matter.

    Parent
    Beyond my ability to (none / 0) (#27)
    by Inspector Gadget on Mon May 25, 2009 at 10:37:47 PM EST
    pass judgment.

    I don't know the gesture, the victim, the crime, or the defendent. I don't think eyewitness accounts are always accurate, nor do I think anyone who doesn't know the person can know what they are thinking. I hear the witness stand is the most uncomfortable chair in the courtroom. People do odd things when they are nervous.


    Parent

    I don't know the gesture either (none / 0) (#28)
    by nycstray on Mon May 25, 2009 at 10:48:06 PM EST
    so I'm coming at it from the same view as you, but different thought on the matter. Like I said, I think some gestures can be pretty self-explanatory, and there are some many of us don't do or don't so lightly. My take is the gesture was prob significant if they feel the need to bring it in.

    Parent
    My take is the (none / 0) (#30)
    by Inspector Gadget on Mon May 25, 2009 at 10:52:26 PM EST
    defense is going to jump on anything they can to clear their client. Doesn't mean it's valid, and this seems to me to be the most risky. To assume a stranger knows exactly what a gesture made meant to the person who made it (though that person will not be there to confirm or deny) is not good for justice.


    Parent
    agree to disagree? (none / 0) (#31)
    by nycstray on Mon May 25, 2009 at 10:55:42 PM EST
    from one who's into body language/gestures/etc :)

    Parent
    As an example.... (none / 0) (#33)
    by Inspector Gadget on Mon May 25, 2009 at 10:59:58 PM EST
    twice, a certain candidate scratched his cheek at an obvious moment...the controversy over what that gesture meant, if was made at all, is clear proof that interpretation is not black and white. These scratches were on tape, could be watched over and over, and still you have some who think it was just a scratch, and others who believe it was a disrespectful gesture.

    Again, if I were that juror, I would not be able to give my interpretation knowing it could severely alter someone's life if I misunderstood either the gesture, or to whom the gesture was actually directed toward.


    Parent

    If it was more subtle like the situation (none / 0) (#35)
    by nycstray on Mon May 25, 2009 at 11:15:00 PM EST
    you describe, is it even worth bringing the juror in? I'm thinking it had to be a tad more blatant than that. If it was similar, I don't see it holding up because then it does become interpretation/speculation. The other party could bring in another juror/someone else in the courtroom that day etc, that felt the opposite and you end up with he saw/she saw.

    Parent
    Here's my take on it (none / 0) (#40)
    by scribe on Tue May 26, 2009 at 01:59:29 AM EST
    It breaks down into three parts:

    1.  (a) As to what the prior juror perceived while seated in the courtroom, that would not be hearsay. It would be a person testifying as to their direct sensory perception of an event and, therefore, admissible as long as it was both relevant to (proving or disproving) an issue in the case and neither unduly prejudicial nor cumulative.

    There may be (it varies from court system to court system) some limitations on what the juror may testify to - as a matter of competency of the proposed witness - because of what I'll call "confidentiality of the jury and its deliberations" considerations.  That is, suppose there is a rule which says "jurors may not testify as to the content of their deliberations other than in the context of a proceeding in which misconduct pertaining to the jury is in issue".  The question would then become (a) "is this event a part of deliberations?" and (b) "if (a) is answered 'yes', is this a misconduct-pertaining-to-the-jury proceeding?"  Only if (a) is yes and (b) is no would the juror be disqualified on competency-as-a-witness grounds.  The scope and nature of when and how a juror may be competent to be a witness is a matter of local law in the jurisdiction.

    But

    (b) how is what the juror perceived relevant to an issue in the case?

    I'd also continue to ask how does this proposed testimony tend to prove a fact in issue?  It's not like the defendant is on trial for making a hand-slash across his throat at a witness during the prior trial, the implication being a threat to that witness.  The defendant is on trial for something that happened outside the courtroom, and the juror wasn't there for that.  How does what happened inside the prior trial tend to prove a fact in issue about something that happened outside the prior trial?  

    It Doesn't.

    2.  Interpretation of the alleged gesture.

    This, on the other hand, seems to be hearsay to me, but we may not have to even go there.  What would necessarily be required is some interpretation of the gesture.  This is necessary in every instance when a witness' gesture is in issue.  Remember the old "see a guy walking by outside, then raising an umbrella" hypothetical?  This is somewhat different.  The juror would be saying "I saw a guy walking by outside and raise an umbrella, so I concluded it meant it was raining."  This is attackable on any number of fronts, but the point is that the witness is interpreting the gesturer's gesture.  

    The question which keeps popping into my head is "is this testimony the best evidence?"  In other words, would admitting it violate the Best Evidence Rule and thus take the hearsay question out of the picture entirely?

    What we have here is a proposed witness who is supposed to tell us not only what they saw a witness "say", but also what it meant.  The proposed witness' perception, understanding, recollection, relational ability and sincerity may be impeccable in all regards, but is such a conclusion (of what the alleged gesture meant) within their capacity to testify to?  I don't think so.  As other commenters have noted, a wave can mean any number of things, yet we are to believe that the alleged gesture had one, and only one meaning (conveniently, the inculpatory one).  I don't see it.

    If you want to keep after the hearsay angle, ask:  "what exception to the hearsay rule would allow this testimony to come in?"  I can't think of one.  

    3.  The alleged gesture is a confection of prosecutorial imagination, or, The Record of the prior trial tells us all that happened and all that didn't happen.

    You note that the Record of the prior trial does not reveal the existence of the gesture.  I would argue "it didn't happen" and base that on two or three separate grounds.

    First, IIRC, the general principle pertaining to mistrials as a result of a hung jury is that it is treated as though nothing in the way of a trial had happened.  The actual testimony of a witness - on the record and under oath - is treated like a deposition of a non-party witness in a civil context.  It can be used to cross-examine a witness at the retrial ("You said 'a' under oath before and 'not a' now:  which is true?") but would be limited in terms of substantive admissibility because of Confrontation issues (i.e., the prosecution can't just move the transcript of the prior trial in and rest.  But all we know to have happened was recorded.

    So, if the Record does not show the gesture, I argue it didn't happen.  Going back to the "guy walking by outside, then raising an umbrella" hypothetical:  the issue is not what the event described meant but, rather, whether it occurred at all.

    Second,  calling on a juror to contradict the record of the prior trial may violate the oath, or the instructions to the jurors.  There is a standard principle enunciated to the jurors which says that in their deliberations their memory of the testimony, demeanor, etc., rather than their notes, shall govern.  But that only applies to their deliberations.  When the Court gets a hold of the case, the Record governs.  There is also another which says that they should deliberate on what actually transpired and that no one juror should take over the deliberations (nor should the others allow it).

    In calling just this one juror, the prosecution is violating both of these principles.  It is placing the recollection of one juror over the Record.  And, it is allowing one juror's recollection to override the recollections of all the others.  (I would be sure that the prosecution had gone out and interviewed all of the jurors to find out which, if any, had noted the gesture.  If they are only proffering one, that means to me that 11 said "no memory of it" or similar, otherwise they'd be trotting the whole panel into court.)  So, demand that all the prosecution interviews of the other jurors be produced, as an initial matter.

    I apologize for (a) the length of this comment - it's a knotty problem - and (b) whatever disjointedness may be in it - it's 3 AM as I write....

    Parent

    Will PopLeft have any Open Threads (none / 0) (#32)
    by byteb on Mon May 25, 2009 at 10:59:11 PM EST
    for uncovered shows and movies...for example: I just watched the last three In Treatments and I'd love to comment but there's no OTs.


    Would you like to write posts on In Treatment? (none / 0) (#36)
    by Jeralyn on Mon May 25, 2009 at 11:31:02 PM EST
    Why don't you write a post out on In Treatment and email it to me and I'll post it with your byline, (Byteb or whatever you want.)

    Same goes for anyone else who wants to write about a show or topic I haven't covered yet. Just check with me on the topic first.

    Parent

    Thanks Jeralyn (none / 0) (#46)
    by byteb on Tue May 26, 2009 at 10:37:51 AM EST
    Since In Treatment is over for the season (and maybe for good since I haven't heard HBO renewing it for next season), there's not much left to discuss except to say that, imo, the show is outstanding in every respect and I'm keeping my fingers crossed for a third season...even though it looks like my favorite Diane Weist dressed in atypical blue...won't be coming back.
    If I do see a show that I'd like to write about, I'm going to submit the topic and some thoughts via email to you so that (hopefully) you can post in.
    Thanks, again

    Parent
    It's Sotomayor!!! (none / 0) (#41)
    by NJDem on Tue May 26, 2009 at 07:37:41 AM EST
    Great news! :)

    Yes (none / 0) (#42)
    by jbindc on Tue May 26, 2009 at 07:52:51 AM EST
    That's what the AP is reporting, even though the official announcement won't be until 10:30 EDT.

    Parent
    Great pick! (none / 0) (#43)
    by BigElephant on Tue May 26, 2009 at 07:53:51 AM EST
    I was afraid that he wouldn't have the nerve to pick her.  She'll be an asset for the court and I hope the Senate ensures she gets confirmed smoothly (although with proper diligence).

    Parent