Wednesday, April 23, 2014

Ouch. ICA slams defense, leaves 30 to life sentence intact.

Not that the average person would read it that way.  State v. Marks came out yesterday.

You might read it and think, ouch.  That's some bad law.  But it's Judge Lansing, so she does what you'd want from a Court of Appeals.  She tells you everything the defense SHOULD have done to accomplish what it wanted.

The case is about Mr. Marks, who was accused of having sex with his daughter.  He was also accused of having sex with another daughter, but that didn't make it past the prelim.  So, the state brought in the daughter that didn't make it past prelim to testify at the trial they could get under 404b.

The defense also wanted an expert to testify as to why you SHOULDN'T believe these girls.  The state almost always has an "expert" telling you why you should, even though the victims don't behave like victims.  The defense did not get this expert in.

Anyway, the Court of Appeals says no as well, but points out not only what the defense should have done, but what, to its astonishment, was simply abandoned on appeal.  Check it out:

The district court held that Dr. Guertin would not be permitted to testify regarding the credibility of the victims as it would usurp the role of the jury in determining credibility. Marks does not dispute that ruling on appeal. The court also excluded the remainder of the proffered testimony as speculative and creating the risk of jury confusion. On appeal, Marks apparently challenges only the district court’s exclusion of a portion of Dr. Guertin’s proposed testimony relating to the examination of one of the victims, K.M. Marks argues that exclusion of this evidence was inconsistent with the Idaho Rules of Evidence and amounted to a denial of his constitutional right to present a defense.


On appeal, Marks has not precisely identified which portion of Guertin’s proposed testimony he contends was improperly excluded, but he appears to contend that Dr. Guertin should have been allowed to testify that the medical examination of K.M. indicated that she had not been molested. 
Marks did not put the sufficiency of the State’s evidence “squarely at issue.” He noted that B.K.M. had originally told the authorities she had not been assaulted, but then changed her story. This comment was not an attack on the veracity of the witness, however, but part of Marks’s estoppel argument that he has abandoned on appeal.

Who had this gem on appeal you ask?  Why those brilliant attorneys at the SAPD!

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