A Missing Witness Charge

[Salty]

In Syracuse, NY a trial just ended for the murder of a wife - the accused is her husband - a MD.
The death occurred in 2012., and he was convicted shortly thereafter. However the defense
found out that one juror, during the trial, sent and received hundreds of texts - many relating
to the trial. Recently, a State judge voided out the first trial and ordered a new one.

The Second trial just ended. But the DA has requested "A Missing Witness Charge"
The Defense did NOT call one witness - the only person who was in the house (other than
the defendant) at the time of the death.

The law allows for the jury to consider "negative inference"
The DA contends that witness would have been damaging to the defense.

Here is the local cable company news station link on the story:

Neulander murder trial: Jury dismissed until closing arguments Wednesday


Apparently the purpose of the "A Missing Witness Charge" was for the jury to consider the lack of
testimony of a spousal abuse when the victim would not testify.

Memorandum on Missing Witness Charge | Pace Law School

So what is your thoughts about "A Missing Witness Charge"

 

[canadyjd]

In Syracuse, NY a trial just ended for the murder of a wife - the accused is her husband - a MD.
The death occurred in 2012., and he was convicted shortly thereafter. However the defense
found out that one juror, during the trial, sent and received hundreds of texts - many relating
to the trial. Recently, a State judge voided out the first trial and ordered a new one.

The Second trial just ended. But the DA has requested "A Missing Witness Charge"
The Defense did NOT call one witness - the only person who was in the house (other than
the defendant) at the time of the death.

The law allows for the jury to consider "negative inference"
The DA contends that witness would have been damaging to the defense.

Here is the local cable company news station link on the story:

Neulander murder trial: Jury dismissed until closing arguments Wednesday


Apparently the purpose of the "A Missing Witness Charge" was for the jury to consider the lack of
testimony of a spousal abuse when the victim would not testify.

Memorandum on Missing Witness Charge | Pace Law School

So what is your thoughts about "A Missing Witness Charge"

I think that particular part of the law is fascinating. I’ve never heard of it before. So the PA can only ask for it if the defense presents no witnesses?

How do they know the daughter was in the house? Didn’t police get a statement from her?

So, the judge can instruct the jury they can make a negative inference toward the defendant if he doesn’t call an available witness? Wow!!!

Very interesting.

peace to you

 

[Salty]

I think that particular part of the law is fascinating. I’ve never heard of it before. So the PA can only ask for it if the defense presents no witnesses?

I had not heard of it myself until I saw it in the paper today.

How do they know the daughter was in the house? Didn’t police get a statement from her?

I understand she did testify in the original trial.- ten years ago.

So, the judge can instruct the jury they can make a negative inference toward the defendant if he doesn’t call an available witness? Wow!!!

yes he can - but I would assume it would have to be requested by the DA.

 

[canadyjd]

I had not heard of it myself until I saw it in the paper today.


I understand she did testify in the original trial.- ten years ago.




yes he can - but I would assume it would have to be requested by the DA.

Why didn’t the prosecutor call her? Please keep us updated. I’d like to see the outcome.

peace to you

 

[Salty]

Why didn’t the prosecutor call her? Please keep us updated. I’d like to see the outcome.

peace to you

Any lawyers on here that could help out?

 

[canadyjd]

Any lawyers on here that could help out?

It may be specific to NY Law.

peace to you

 

[Van]

Yes, it appears our country has laws on the books that do not support the spirit of our Constitution. Half the names of Army soldiers on the Viet Nam Memorial Wall were conscripts, those whose right to purse happiness, or enjoy liberty, and to life were taken from them. Another dubious law is the felony murder law where if a murder occurs during the commission of a felony, all those involved can be convicted of murder, even though they did not even witness the murder. This is akin to punishing the son for the sins of the father.

 

[Salty]

...Half the names of Army soldiers on the Viet Nam Memorial Wall were conscripts, those whose right to purse happiness, or enjoy liberty, and to life were taken from them. ...

Interesting subject - so not to hijack - I have started this thread:

Facts of the Vietnam War


And now back to "A Missing Witness Charge"

 

[Van]

Yes, it appears our country has laws on the books that do not support the spirit of our Constitution. Another dubious law is the felony murder law where if a murder occurs during the commission of a felony, all those involved can be convicted of murder, even though they did not even witness the murder. This is akin to punishing the son for the sins of the father. Other laws that violate the spirit of our Constitution have been ruled as off topic.

 

[Salty]

Yes, it appears our country has laws on the books that do not support the spirit of our Constitution. Another dubious law is the felony murder law where if a murder occurs during the commission of a felony, all those involved can be convicted of murder, even though they did not even witness the murder. This is akin to punishing the son for the sins of the father. Other laws that violate the spirit of our Constitution have been ruled as off topic.

This post is basically nothing more than a repeat of post # 9
This Post has NOTHING to do with the OP - Lets get back ON TOPIC!

 

[canadyjd]

Interesting subject - so not to hijack - I have started this thread:

Facts of the Vietnam War


And now back to "A Missing Witness Charge"

Do you know how the daughter testified in the last trial?

peace to you

 

[Reynolds]

Yes, it appears our country has laws on the books that do not support the spirit of our Constitution. Half the names of Army soldiers on the Viet Nam Memorial Wall were conscripts, those whose right to purse happiness, or enjoy liberty, and to life were taken from them. Another dubious law is the felony murder law where if a murder occurs during the commission of a felony, all those involved can be convicted of murder, even though they did not even witness the murder. This is akin to punishing the son for the sins of the father.

I do not think a missing witness charge should be legal.

 

[canadyjd]

I do not think a missing witness charge should be legal.

It does seem biased to claim a witness not called should be a negative inference toward the defendant.

If we don’t know why the witness didn’t testify, and there could many reasons, there seems to be an unfairness to this law.

peace to you

 

[Salty]

Do you know how the daughter testified in the last trial?

peace to you

not off hand - will see what I can find

 

[canadyjd]

not off hand - will see what I can find

Thanks

peace to you

 

[Salty]

News was just on - The DA was asked why he did not call that witness -
he said he cannot answer until after the trial is over.

 

[canadyjd]

News was just on - The DA was asked why he did not call that witness -
he said he cannot answer until after the trial is over.

Just more curious, isn’t it? So let’s think a bit, what could be the reason for the DA to not call a witness?

a. She refuses to answer questions.
b. She is unable to answer questions (medical/mental) issues.
c. She would answer questions, but it wouldn’t be helpful to the prosecution (most likely imo)
d. The prosecutor knows her testimony will hurt his case, so he took the chance the defense wouldn’t call the daughter and traumatize her again, and then pushed an arcane, rarely used section of the law to get a negative inference by the daughter not testifying.

Why would the defense not call this witness?

a. Her testimony would hurt the defendant
b. Her father believes she has suffered enough with the death of her mother and doesn’t want to traumatize her again
c. She refuses because she knows he did it
d. She refuses because she thinks he did it but isn’t sure and doesn’t want to help him.
e. She made an agreement with the prosecutor to not testify, so he could push an arcane law to get a negative inference by the daughter not testifying.

Perry Mason where are you?

I’d settle for Matlock.

peace to you

 

[Salty]

Just more curious, isn’t it? So let’s think a bit, what could be the reason for the DA to not call a witness?

Why would the defense not call this witness?

a. Her testimony would hurt the defendant

From what I understand - that was probably the reason

William Fitzpatrick has been county DA since 1992

 

[canadyjd]

From what I understand - that was probably the reason

William Fitzpatrick has been county DA since 1992

DA for 30 years? Are they elected or appointed?

peace to you

 

[Salty]

DA for 30 years? Are they elected or appointed?

They are elected to 4 year terms - he has been elected 8 times - and from what I understand - he has won election 8 times, and only had a opponent twice.
The county is heavily Republican.

There was one controversial election. Shortly after he won election - he announced his retirement. But stayed on the job. So he could receive his retirement pay in addition to his DA pay. ----BUT ---https://www.syracuse.com/news/2018/02/da_fitzpatrick_ny_state_wont_let_me_collect_pension_and_pay_yet.html