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In Session The next proposed defense instruction involves “failure to produce evidence or a witness.” The defense hopes for an instruction based on a similar civil instruction, and offers that civil instruction for use as a template. Attorney Greenberg cites case law that he believes supports the defendant’s argument. Judge: “The Court recognizes there are instructions that can be given to the jury in regards to the failure to call a witness . . . the defendant does not have the ability to use a shield as a sword . . . I think it would only be confusing, and the defendant’s proposed instruction is denied.”
In Session The next proposed defense instruction concerns regarding “the multiplicity of attorneys.” Greenberg says this is important “because of the number of attorneys in this case, and because this case is being personally prosecuted by the State’s Attorney . . . given the number of times the jury had to be excluded, and the length of time, I think it’s important the jury knows it’s no one’s fault . . . it just reinforces, especially given the length of time. Where’s the harm?” Prosecutor Griffin: “I believe this misstates the law, and I don’t even understand the reason for it.” Judge: “I think the record has to be clear; there was an unusual number of sidebars in this case . . . we wouldn’t them to be frustrated in any fashion in regards to the number of times they did have to leave the courtroom . . . I think if you guys could get your heads together along the lines of some instruction, I think it would be helpful. If you could agree on some language, I think it might be appropriate in this case to address that subject again.”
In Session The defense offers an instruction regarding “the prior conviction of a witness.” The prosecution objects to this instruction (which seems to deal solely with prosecution witness Jeff Pachter). The judge decides to give this instruction. “It goes to the issue of moral turpitude, and I’m going to give it.”
In Session The next defense proposal has to do with the issue of jury speculation regarding the bifurcation of the Peterson/Savio divorce (and incorrect statements of the law regarding that issue, specifically how the death of one of the parties affects that proceeding). Before he hears argument on this issue, Judge Burmila consults a bound reference volume. Judge: “The instruction is mostly testimonial in its outlook . . . to remind the jurors they heard this testimony, that’s testimonial, not a statement of the law . . . you need to put it in an explanation of the law, rather than a recount of the testimony.”
In Session Greenberg offers the next proposed defense instruction, which concerns “the implication that Mr. Peterson might be a beneficiary of some kind . . . we would like you to inform the jury that he was no longer an heir, because they were divorced, and he was not listed as a beneficiary in the will.” Prosecutor Griffin responds, objecting to the defense’s proposed instruction. “What matters is what his state of mind was, and whether he thought he might have specific financial benefits from this crime.” Koch: “That goes right to his state of mind. We wanted to produce testimony to that, and we were precluded from doing so.” Greenberg: “All we’re asking you to do is present a correct statement under the law.” Judge: “The defendant’s instruction will not be given. The evidence in this case in regards to the issue of what the defendant’s posture would be post-divorce and in advance of the property distribution, I think, is irrelevant . . . this instruction is one that goes toward evidence, and not the law in this case . . . so I don’t see any need for this instruction at all; it’s not an accurate statement of the law, as it’s applicable in this case. So it will not be given.”
In Session The State objects to the next proposed defense instruction, saying it’s irrelevant. Brodsky responds: “This goes to correct a misstatement of the law that Mr. Smith gave from the stand.” Judge: “I will say that when Mr. Smith made this statement in front of the jury about concealing a homicidal death . . . at the time, you did not cross-examine him any further when he made the statement. Is that correct?” Brodsky: “I only cross-examined him on his prior statements that it was extortion.” Judge; “So you had an opportunity to cross-examine him on whether the information he was giving the jury was incorrect?” Brodsky: “I was a bit taken by surprise.” Judge: “How does the fact that you were surprised and did not cross-examine him on this issue, how does a jury instruction cure that?” Brodsky: “Because it would advise the jurors that the law he told them was wrong. They could use that in evaluating the weight and credibility to give his testimony.” Greenberg: “The jury should be advised that it was an incorrect statement of the law. To do otherwise is to leave the jurors with an incorrect understanding of the law.” Griffin: “The correct understanding of the law they need to have is the law of this case.” Judge: “You’re not disputing that what he [Smith] said was wrong?” Griffin: “All Mr. Smith was doing was clarifying that he was not talking to her about extortion.” Judge: “But Mr. Smith says he was advising her about a crime that she could not have committed.” Griffin: “This is not something that should be included in a jury instruction; it should have been addressed at the time that Mr. Smith was testifying.” Judge: “I believe everybody will believe that what she told him did not constitute the crime of concealing a homicidal death . . . that’s a separate issue from whether or not a special instruction is curative. What Ms. Griffin said is correct; if you abandon that line of questioning, I don’t know if you can come back and ask for a jury instruction later.” Greenberg: “The fact is that he was wrong, and it is the Court’s obligation to advise the jury on the law, not a witness’ obligation . . . it would be unjust to have the jury have an incorrect understanding of the law simply because maybe something should have been said or done earlier.” Judge: “You [the defense] called him . . . you called this witness . . . there’s nothing I can see that the State did to augment or embellish Mr. Smith’s testimony. The defendant’s proposed instruction is denied . . . there was no request for a sidebar, no request that the Court correct the information. So the relief the defendant seeks in the form of a jury instruction is denied.”
_________________  Do not go gentle into that good night.___________ Rage, rage against the dying of the light
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It doesn't seem Dr. Baden had much of an impact at least from what I read. And now the jury has four days to think about everything to themselves before closing arguments on Tuesday.
