Kyle Rittenhouse Trial: Requesting Drone Video Suggests Possible Hung Jury?

Generally, the more questions a jury asks during deliberation, the more likely a hung jury. The more time a jury deliberates, the more likely a hung jury.

Kyle Rittenhouse’s claim of self-defense may have just been complicated by the juror’s request to see the drone videotape which may indicate self-defense requiring an acquittal or, provocation requiring a guilty verdict. The jury has previously asked for copies of the jury instructions. Typically, video evidence is replayed to the jury in open court, but, the decision is up to the judge.

Either way, it may not be a good sign for the prosecution or the defense, if either expected a quick verdict.

Furthermore, when lesser included offenses are added after evidence has been submitted, it may complicate matters for one or more jurors who may have been viewing the evidence under the charges they were given at the beginning of the case. It’s as if they introduced a new character to a movie in the last 5 minutes. The jury may want to re-visit evidence in light of the lesser included and the jury instructions, both of which will take some time. And, they may want to take their time with the evidence given it is a hotly contested case.

No doubt, there is much discussion on the elements of self-defense and whether provocation occurred to eliminate Rittenhouse’s claim of self-defense. It may be a one-or-the other decision for each juror. Keep in mind, all 12 jurors have to agree to a verdict of not guilty or guilty as to each count, otherwise, it is a hung jury and the case could be re-tried.

Simply my opinion, what say you?


Elizabeth Holmes Trial: Roger Parloff Fortune Story May Sink Some Investor Counts

In June 2014, Roger Parloff, a journalist, wrote a glowing cover story in Fortune praising Elizabeth Holmes and her blood-testing company Theranos. The Fortune cover story and potentially Parloff’s testimony may be a problem for the prosecution in the US v. Elizabeth Holmes felony wire fraud trial currently underway in San Jose California.

Why?

Well, if the jury finds that an investor relied upon representations made by others regarding Theranos, namely, the statements and representations made by Roger Parloff in the Fortune cover story, prior to the investor’s investment in Theranos, then, the jury may find reasonable doubt as to some of the investor fraud counts.

Another words, it could be argued that the investors relied upon and decided to invest in Theranos because of the now allegedly “materially false and fraudulent representations” made by Parloff‘s story not by Holmes. Or, in the alternative, it was the “representations” of both Holmes and Parloff’s story that induced or caused the investors to invest in Theranos. Given the testimony of investors David Mosley and Lisa Peterson who both testified that they relied upon the Fortune cover story, in addition to the claims made by Holmes, prior to investing in Theranos, counts 1, 7 and 8 of the Holmes indictment may be in jeopardy, specifically, the conspiracy to defraud investors, the $99,999,984 investment from the De Voss family per Lisa Peterson, and the $5,999,997 investment from Mosley into Theranos in October 2014, respectively.

Interestingly, it does not appear that either Mosley or Peterson sued Fortune, Parloff or Holmes for the alleged fraudulent representations. However, Parloff and Fortune, did publish a retraction to the Holmes cover story, “How Theranos Misled Me” in 2015. Prior to Parloff’s journalist career, he was a criminal litigator in Manhattan.

BTW, Parloff’s upcoming testimony in the Holmes trial may be limited subject to this Monday’s motion in limine hearing at 10 am. For example, the Fortune story, parts thereof, or Parloff’s opinion/findings may be excluded from his testimony. The Court may also revisit Magistrate Cousins ruling denying the defense’s request to release of Parloff’s notes for his cover story, presumably sought, to uncover, the exact words or statements made or not made by Holmes.

Simply my opinion, what say you?

BTW, I am providing legal analysis on the Holmes trial. Here are my interviews on CBS 5 KPIX San Francisco and CBS 5.


Elizabeth Holmes Trial: John Carreyrou an Expert or Fact Witness?

Today, Magistrate Cousins of the United States District Court in San Jose California granted WSJ reporter John Carreyrou’s first amendment right to cover the Elizabeth Holmes federal wire fraud trial. Cousins found Carreyrou to be an expert witness instead of a fact witness. If he had been deemed a fact witness, Carreyrou would have been prevented from covering or attending the trial as his name appears on the defenses witness list, and witnesses are typically excluded from court. Interestingly, he has not yet been subpoened to testify.

Expert witnesses are allowed to attend trial and hear the testimony of other witnesses to render an opinion when they testify. Think of a coroner giving an opinion as to the cause of death or an accident reconstructionist listening to the testimony of a police officer. Mr. Carreyrou wrote a 2015 WSJ article that blew the whistle and penned a best selling book, Bad Blood, based on his investigation into Theranos and Holmes.

Curious, will the Holmes defense appeal Magistrate Cousins decision finding Carreyrou an expert witness? Or, object when Carreyrou testifies or offers an opinion?

Does Carreyrou qualify as an expert witness?

Federal Rule of Evidence 702 allows for expert testimony if it will ‘assist the trier of fact to understand the evidence or to determine a fact in issue’ by providing opinions on ‘scientific, technical, or other specialized knowledge’.(See jury instruction 2.13 here)

Even if Carreyrou is found to have scientific, technical or specialized knowledge, could his “findings” (investigative info) be considered too prejudicial and excluded (or limited), like the detrimental findings of Centers for Medicare Services after their investigation of Theranos, which the trial judge excluded from testimony today as too prejudicial?

Another words, one could assert, would the Carreyrou testimony be helpful (probative) to the trier of fact (the jury) or would it be too prejudicial to the defense?

And as the jury will be instructed before deliberations,

“Such opinion testimony should be judged like any other testimony. You may accept it or reject it, and give it as much weight as you think it deserves, considering the witness’s education and experience, the reasons given for the opinion, and all the other evidence in the case.” (See jury instruction 2.13).

Keep in mind, it is the jury who decides what the facts are, weighs the credibility of witnesses and determines what weight to give the testimony of a witness, no matter…the bad blood.

Simply my opinion, what say you?


Theranos Trial: Juror Questionnaires Likely Public

Are juror questionnaires public or confidential?

Well, it looks like juror questionnaires are mostly public information with limited redaction, at the court’s discretion, for juror privacy concerns. But, it is up to each juror to raise their objection to the release of their private info.

As reported, a media coalition has filed a motion to obtain the juror questionnaires in the US v. Elizabeth Holmes blood testing wire fraud trial currently underway in San Jose California. The Media Coalition includes ABC, NBC, NY Times, Washington Post, The Daily Mail, Dow Jones, AP, and Bloomberg. They seek the unsealing of the juror questionnaires of the 12 seated jurors and the 5 alternate jurors.

Although the juror questionnaire states that the questionnaire is confidential, (see Holmes juror questionnaire pg. 2 here) most Courts have said otherwise. It seems that the public and the media have a first amendment right to obtain jury selection info which includes written juror questionnaires. Questionnaires are no different than the public information received during the voir dire stage of trial where jurors are asked questions in an open public courtroom. Both of which, become part of the public record for the proceeding.

Why does the public and the media have a right to access juror questionnaires?

The public and media have a right to hold the justice system accountable, to ensure the trustworthiness and integrity of the jury selection process.

However, the judge may redact information from the questionnaires if the jurors privacy concerns outweigh the public interest. For instance, if the info could lead to harassment, intimidation or harm to a juror or was “deeply personal matters” as in the Chandra Levy 2012 DC circuit Appellate Court decision releasing redacted questionnaires. (See other state and circuit decisions here).

My guess, the court will likely release the juror questionnaires subject to limited redaction.

However, keep in mind, juror misconduct, if prejudicial, or improper jury selection process, Holmes. like Scott Peterson or any defendant may have grounds to appeal a conviction.

Simply my opinion, what say you?

Update: 10/13/21 A hearing on the media’s motion to release questionnaires to be heard in 5 weeks, date tbd. The judge requested both sides to file briefs for the judge to consider before he decides whether to release the juror questionnaires.

Update: 11/19/21 Judge decided to keep questionnaires under seal until the verdict and will release questionnaires without jurors names, addresses and things jurors requested to be private.


Gabby Petito: Police BodyCam Video of Traffic Stop

Tragically, 22 year old Gabrielle “Gabby” Petito’s remains were found today in Grand Teton National Park in Wyoming after her being reported missing for weeks. She was on a van trip with her fiance Brian Laundrie. He returned home to Florida weeks ago in the Gabby’s van without Gabby. He decided not to talk to the police regarding Gabby’s whereabouts, although, he has a right to remain silent. As of last Tuesday, Brian is now missing. The cause of Ms. Petito’s death has not yet been determined.

Here is the full video from the officers bodycam of the traffic stop of Brian and Gabby weeks before she was reported missing. Traffic stop begins at 19:34 and was posted on youtube by Crime & Justice by Mentour lawyer. (posted here for educational purposes only).

As a former domestic violence prosecutor, may this video result in better training and response of officers in the handling of possible domestic violence situations (and Miranda rights training). Simply, my opinion.

May Ms. Petito rest in peace. My condolences to her family and loved ones.