Barisone Criminal Case Update

[AnastasiaBeaverhousen]

Thank you very much for posting this.
It made some things a lot clearer.

[Sdel]

@IdahoRider

Since we have you here, is it true that your daughter is not welcome in your home? If true, is this a result of offensive behavior on her part, even though you still love her because she is your daughter?

Ok…this is inappropriate given the context of her involvement on the thread. Seeker1, please, don’t feel like you are obligated to answer.

[CurrentlyHorseless]

@IPEsq

Disclaimer - I studied NY criminal laws many years ago (do not use that knowledge in practice), and I do not practice law in NJ. I am a lawyer and know how to read a statute.

The NJ code has a section on Assault, which includes Aggravated Assault. Because none of the victims died, I’m not looking at the criminal homicide statute.
https://law.justia.com/codes/new-jersey/2013/title-2c/section-2c-12-1/

There are several possible scenarios that would meet the definition of either crime. To answer some questions upthread, it is possible for a jury to find that the prosecution has met its burden as to some elements of the crime but not others. If the jury finds that all elements of a crime or a lesser included offense is true beyond a reasonable doubt, then it can render a guilty verdict of that crime. The prosecution does not necessarily need to claim every possible scenario for the judge to instruct the jury on possible lesser included offenses.

So, hypothetically, looking at aggravated assault only, the jury might not find a second degree crime, which requires that the defendant “Attempts to cause serious bodily injury to another, or causes such injury purposely or knowingly or under circumstances manifesting extreme indifference to the value of human life recklessly causes such injury.”

But they could potentially find that the defendant “Recklessly causes bodily injury to another with a deadly weapon” which is a fourth degree crime, or “Attempts to cause or purposely or knowingly causes bodily injury to another with a deadly weapon” which is a third degree crime.

Generally, as the degree of crime escalates, there are more specifics on what needs to be proved. For simple assault, which is a “disorderly persons offense,” that could be satisfied here by showing the defendant “Negligently causes bodily injury to another with a deadly weapon”. Because it’s clear that bodily injury occurred, the facts to be proved revolve around if MB had the gun and at least negligently caused it to be fired, shooting the victims.

Are you saying that attempted murder is considered a form of aggravated assault?

IANAL, but I had assumed that attempted murder is distinct from aggravated assault even if the physical injury from the act of shooting is the same.

I’m not doubting anything you said, just confused as to why you’re not discussing the criteria for attempted murder.

[IdahoRider]

@rothmpp

The prosecutor must be confident that they need her testimony to be willing to run the risk of what she might say under cross examination.

Cross examination can only cover her direct testimony. If they have her on the defense witness list and call her, what they can ask her is pretty much wide open.
Sheilah

[smoofox]

@CurrentlyHorseless

IANAL, but I had assumed that attempted murder is distinct from aggravated assault even if the physical injury from the act of shooting is the same.

It has been a long day. I sat here and puzzled and puzzled til my puzzler was sore (token Christmas season reference) … and finally figured out what IANAL meant.

I think I need a glass of wine. Or two.

I appreciate all the lawyers who can help explain all the legal matters to us mere peons!

[IPEsq]

I was just providing an example from the criminal code where the prosecution doesn’t have to necessarily prove up (or even claim) the most strict charge to get a conviction of a lesser included offense. In the example I used, there are several degrees of crime possible falling under the same section of the statute.

Other sections of the statute read differently. For example, the jury can’t be instructed on attempted murder if murder is also charged. Assault is also not a lesser “included” offense in the attempted murder charge, but separate. The above example was an attempt to answer specific questions on how jury fact finding might play out where there could be lesser crimes included.

The NJ jury instructions on attempted murder do require a finding that it was the defendant’s purpose to cause death to the victim (not just bodily harm), so that is a high burden for sure.

[IPEsq]

@CurrentlyHorseless

Are you saying that attempted murder is considered a form of aggravated assault?

IANAL, but I had assumed that attempted murder is distinct from aggravated assault even if the physical injury from the act of shooting is the same.

I’m not doubting anything you said, just confused as to why you’re not discussing the criteria for attempted murder.

No, I am not. One requires purpose to cause death. The other requires various other scenarios where bodily injury may or may not happen, but all which fall short of “purpose to cause death.” See my other response. I picked a relevant section of the statute that was an easy example to answer a recurring hypothetical legal question, because the assault statute clearly says section b(1) is this degree, b(2) is this other degree, etc.

High level overview–not really getting into the specifics of this case because I have not been following closely. Here for the trainwreck

[Knights_Mom]

@IPEsq

I was just providing an example from the criminal code where the prosecution doesn’t have to necessarily prove up (or even claim) the most strict charge to get a conviction of a lesser included offense. In the example I used, there are several degrees of crime possible falling under the same section of the statute.

Other sections of the statute read differently. For example, the jury can’t be instructed on attempted murder if murder is also charged. Assault is also not a lesser “included” offense in the attempted murder charge, but separate. The above example was an attempt to answer specific questions on how jury fact finding might play out where there could be lesser crimes included.

The NJ jury instructions on attempted murder do require a finding that it was the defendant’s purpose to cause death to the victim (not just bodily harm), so that is a high burden for sure.

You are quite correct. For me, predictability of outcome would be easier if it was in the state I’m familiar with. NJ has a little bit of weirdness built in.

[Equkelly]

@Sdel

Ok…this is inappropriate given the context of her involvement on the thread. Seeker1, please, don’t feel like you are obligated to answer.

I really respect you for speaking up and saying this.

[CurrentlyHorseless]

@IPEsq

I was just providing an example from the criminal code where the prosecution doesn’t have to necessarily prove up (or even claim) the most strict charge to get a conviction of a lesser included offense. In the example I used, there are several degrees of crime possible falling under the same section of the statute.

Other sections of the statute read differently. For example, the jury can’t be instructed on attempted murder if murder is also charged. Assault is also not a lesser “included” offense in the attempted murder charge, but separate. The above example was an attempt to answer specific questions on how jury fact finding might play out where there could be lesser crimes included.

The NJ jury instructions on attempted murder do require a finding that it was the defendant’s purpose to cause death to the victim (not just bodily harm), so that is a high burden for sure.

Re bolded. He is charged with attempted murder but not with assault. Since assault is not a lesser included charge in attempted murder, does that mean if the prosecution can not get a conviction for attempted murder, they can’t get a conviction for aggravated assault, either?

I actually don’t see why, in this case, it will be difficult to establish an intent to kill, given that she was shot twice in the chest at point blank range. It’s really quite remarkable that she survived.

Of course, the defense plea is not guilty by reason of insanity. That seems totally unpredictable.

[IPEsq]

Right, so “attempted murder” in NJ appears to be a combination of N.J.S.A . 2C:5-1 and N.J.S.A . 2C:11-3(a)1. The first is the statute for Criminal Attempt. The second is for Murder.

It’s much harder to use these as an example, because criminal attempt is difficult to follow. It only applies to create “attempted murder,” which is not defined anywhere that I can tell except in the jury instructions, because the crime of murder requires a specific result - death to the person. The wording for criminal attempt is hard to follow.

The statute on assault seemed a bit more average person friendly.

[Knights_Mom]

@CurrentlyHorseless

@IPEsq

I was just providing an example from the criminal code where the prosecution doesn’t have to necessarily prove up (or even claim) the most strict charge to get a conviction of a lesser included offense. In the example I used, there are several degrees of crime possible falling under the same section of the statute.

Other sections of the statute read differently. For example, the jury can’t be instructed on attempted murder if murder is also charged. Assault is also not a lesser “included” offense in the attempted murder charge, but separate. The above example was an attempt to answer specific questions on how jury fact finding might play out where there could be lesser crimes included.

The NJ jury instructions on attempted murder do require a finding that it was the defendant’s purpose to cause death to the victim (not just bodily harm), so that is a high burden for sure.

Re bolded. He is charged with attempted murder but not with assault. Since assault is not a lesser included charge in attempted murder, does that mean if the prosecution can not get a conviction for attempted murder, they can’t get a conviction for aggravated assault, either?

I actually don’t see why, in this case, it will be difficult to establish an intent to kill, given that she was shot twice in the chest at point blank range. It’s really quite remarkable that she survived.

Of course, the defense plea is not guilty by reason of insanity. That seems totally unpredictable.

He’s not charged with any assault charge. Only with attempted murder and the gun charge(s). I’ve spoken about how I (clerk) feel about that.

They can cut a deal to a lesser charge like assault. But if it goes to trial he’s either guilty of Attempted Murder or he’s not guilty of Attempted Murder.

Apart from gun charge that is. (Disclaimer: I’m not in NJ)

[Sdel]

@IdahoRider

Oh, please. Nobody roped and drug into the fire. She came in of her own free will. Something tells me that nobody in that family does much of anything without putting a lot of thought into it.

I don’t doubt there is a calculated rhyme or reason….but until she decides she wants to get down in the mud in discussing the facts of the case….this is a very inappropriate line of questioning. LK has chosen to do this, and it’s not inappropriate to challenge her statements or the allegations in the civil case. So far, Seeker1, has not chosen to discuss the facts of the case, nor is she a party to any ongoing litigations, but has simply made an emotional appeal about what she perceives is hurting her daughter. And quite frankly, as far as facts of the case go, this one is pretty irrelevant and does nothing but pry open old wounds.

I think it’d have been best for all of them to not read the comments, and my advice would be for all of them to stop doing so going forward.

[Knights_Mom]

@IPEsq

Right, so “attempted murder” in NJ appears to be a combination of N.J.S.A . 2C:5-1 and N.J.S.A . 2C:11-3(a)1. The first is the statute for Criminal Attempt. The second is for Murder.

It’s much harder to use these as an example, because criminal attempt is difficult to follow. It only applies to create “attempted murder,” which is not defined anywhere that I can tell except in the jury instructions, because the crime of murder requires a specific result - death to the person. The wording for criminal attempt is hard to follow.

The statute on assault seemed a bit more average person friendly.

The attempt would be proven by a series of actions in which the act of murder could have occurred.

Put gun to head, pulled trigger, survived.
Poisoned the dinner with lethal doses of poison but lived
Tried to run over with the car, lived.

Etc.

[IPEsq]

Well, intent to cause death must be proved beyond a reasonable doubt, and that’s not a low burden. This is getting a bit too in the weeds of criminal law for me, but from what I am seeing in the statute and model jury instructions, it appears to me that to get an assault conviction (of any degree), assault needs to be included in the indictment.

[Knights_Mom]

@IPEsq

Well, intent to cause death must be proved beyond a reasonable doubt, and that’s not a low burden. This is getting a bit too in the weeds of criminal law for me, but from what I am seeing in the statute and model jury instructions, it appears to me that to get an assault conviction (of any degree), assault needs to be included in the indictment.

Exactly what I’ve said from the get go, especially with 3 bullets in the gun instead of the clip if that story is true.

[IPEsq]

@Knights_Mom

The attempt would be proven by a series of actions in which the act of murder could have occurred.

Put gun to head, pulled trigger, survived.
Poisoned the dinner with lethal doses of poison but lived
Tried to run over with the car, lived.

Etc.

I don’t see how this is relevant to the question I was addressing. The statutes nonetheless are not easy to follow when you have to read two different criminal sections together in order to arrive at the crime of attempted murder, and murder is a charge in the first degree in NJ, period. Combined with criminal attempt, it’s still a first degree crime.

Assault provides lots of examples for scenarios where some facts may be lacking but you could still get a conviction of some sort, to answer the questions above from others.

[CurrentlyHorseless]

@IPEsq

Well, intent to cause death must be proved beyond a reasonable doubt, and that’s not a low burden. This is getting a bit too in the weeds of criminal law for me, but from what I am seeing in the statute and model jury instructions, it appears to me that to get an assault conviction (of any degree), assault needs to be included in the indictment.

So does the prosecution, or maybe the DA, have to gamble and say “if we charge with both attempted murder and aggravated assault, giving the jury the option of aggravated assault will reduce our chance of getting a conviction on attempted murder”? On the other hand if we charge with attempted murder but not aggravated assault, not allowing the aggravated assault option increases the probability of a conviction on attempted murder?

Does the absence of a charge of aggravated assault mean that they were not allowed to charge both, or that someone made a strategic decision not to charge both?

[Knights_Mom]

@IPEsq

@Knights_Mom

The attempt would be proven by a series of actions in which the act of murder could have occurred.

Put gun to head, pulled trigger, survived.
Poisoned the dinner with lethal doses of poison but lived
Tried to run over with the car, lived.

Etc.

I don’t see how this is relevant to the question I was addressing. The statutes nonetheless are not easy to follow when you have to read two different criminal sections together in order to arrive at the crime of attempted murder, and murder is a charge in the first degree in NJ, period. Combined with criminal attempt, it’s still a first degree crime.

Assault provides lots of examples for scenarios where some facts may be lacking but you could still get a conviction of some sort, to answer the questions above from others.

Certainly the statutes provide for explanations of acts which would have been done to prove that the intent of the action was to intentionally cause death. That would be statute unique to each state. I basically super duper simplified such possible examples. Of course the statute would be far more complicated in its wording and examples.

[IdahoRider]

@CurrentlyHorseless

Does the absence of a charge of aggravated assault mean that they were not allowed to charge both, or that someone made a strategic decision not to charge both?

It is my understanding that lesser included charges can be a part of the jury instructions, even when they were not a part of the original charging document.
Sheilah - I had a horrible car accident yesterday and am currently on strong pain killers, so I hope this makes sense.