Barisone Criminal Case Update

[SummerRose]

This article might give a clearer idea of what @Knights_Mom is talking about?

https://www.nolo.com/legal-encyclopedia/what-lesser-included-offense.html

The Elements Test

But the most popular approach to identifying lesser included offenses among courts is the elements test. Crimes consist of elements, like a recipe consists of ingredients. Someone who commits each and every element of a crime has committed the crime. The elements test doesn’t look at the charging document or the evidence. Instead, it considers only the definitions of the crimes standing on their own.

This test provides that a more serious crime contains all the elements of a lesser included crime, plus one or more other elements. Under this test, regardless of the pleadings or the evidence, assault with a deadly weapon is not a lesser included offense of murder. That’s because the definition of murder doesn’t require that the killing occur through use of a deadly weapon. (Hoffheimer, supra .)

I’m not familiar with the NJ statutes, either, but whether or not assault with a deadly weapon could be an included lesser offense depends on the NJ definitions and on if the elements test applies. This could be the reason that assault wasn’t charged.

[Knights_Mom]

@CurrentlyHorseless

@Knights_Mom

@CurrentlyHorseless

@Knights_Mom

@CurrentlyHorseless

@MHM

@Knights_Mom

double jeopardy/in relation to charges,

That would be my question. If he’s acquitted on the current charges, could they turn around and charge him with some variety of assault? And then hold him in jail awaiting trial for another two and a half years?

That’s the issue of lesser included charges. If they are going to consider a lesser included charge like assault, I think that would happen as a menu of charges (attempted murder or assault, but not both) at the conclusion of the original trial. If assault is not included as a possible option for the jury in the original trial, I don’t think they could bring it up later.

In a prior post I think we determined NJ for a murder charge wouldn’t include assault with a weapon as a lesser included offense due to the Elements issue of a weapon not being a necessary part of the definition of murder.

If I’m wrong please someone correct me.

Well, I didn’t agree to that statement; we’re not talking about murder here.

The main charge is attempted murder. If it’s proven that he stood there and shot her, but they can’t prove intent to kill, that sounds like the elements of assault to me. But IANAL.

That’s not how it works.

The places that use the Elements standard maintain that a charge includes a lesser included offense if that offense is a necessary component of a crime. I’m thinking murder and attempted murder would be similar. The element in question is that a weapon is not a necessary element of murder. Meaning the definition of murder (and/or attempted murder) does not necessitate a weapon being used. The weapon isn’t included in the definition of murder.

The definition of murder is causing someone intentionally to die or acts that are done in order to get the desired outcome and intention of having someone die.

The weapon part isn’t part of the definition therefore using Assault with a deadly weapon would NOT be a lesser included offense using the Elements standard.

Likewise Attempted murder would follow suit as it’s just the attempted/tried to version of murder which is already defined above.

If I have this wrong please correct me.

Who said anything about a weapon? You can attempt to murder someone without a weapon and you can assault someone without a weapon. Seems to me the difference is whether or not there was an intent to kill.

The weapons charge is a separate charge.

You are misunderstanding. Read what @SummerRose posted.

Thank you @SummerRose

[Knights_Mom]

@SummerRose

This article might give a clearer idea of what @Knights_Mom is talking about?

https://www.nolo.com/legal-encyclopedia/what-lesser-included-offense.html

The Elements Test

But the most popular approach to identifying lesser included offenses among courts is the elements test. Crimes consist of elements, like a recipe consists of ingredients. Someone who commits each and every element of a crime has committed the crime. The elements test doesn’t look at the charging document or the evidence. Instead, it considers only the definitions of the crimes standing on their own.

This test provides that a more serious crime contains all the elements of a lesser included crime, plus one or more other elements. Under this test, regardless of the pleadings or the evidence, assault with a deadly weapon is not a lesser included offense of murder. That’s because the definition of murder doesn’t require that the killing occur through use of a deadly weapon. (Hoffheimer, supra .)

I’m not familiar with the NJ statutes, either, but whether or not assault with a deadly weapon could be an included lesser offense depends on the NJ definitions and on if the elements test applies. This could be the reason that assault wasn’t charged.

Yes. I think NJ uses this Elements test structure for their laws but I’m not sure.

It’s not logical to me that this exists yet here we are.

[3PonyFarm]

I deleted my post. In reviewing it I saw that it was poorly worded for the message I intended which was supposed to be supportive. I see now it did not come across that way. My apologies to everyone.

[iris2006]

Here is a post from La-La from 2020. Note the sentence, “Using someone else’s (gun) is making a plan”

“A 9mm can easily kill someone. It almost did kill ME. A 30 minute drive to the hospital & I’d have been dead. A med evac chopper was almost too slow. Or… did you conveniently forget the many reports which stated my condition was grave & up in the air at best? So… let’s not pretend 2 gun shots to the chest weren’t designed to kill- or didn’t have the capacity to do so. Using someone else’s is making a plan. I never once said there WAS a plan to dispose of our bodies. Only that I wouldn’t be surprised. Same with the horses being taken. Never said that was the definite plan- only that it was a good possibility.
Another thing I never said- this was a plan made by professional killers. Just that there WAS a plan & the shooter was aiming to kill. About 20 different things played a H U G E role in the unplanned fact that I lived. If even one thing were done differently, (after the fact for sure & partially during the fact) - I would be dead. So would RG. You don’t have all the facts & I won’t be providing them.”

[iris2006]

Here is La-La talking about MH wanting her horse - this is from the Barisone pleads Not Guilty thread:

“She did do that. She imported a foal by the same sire as the two she wanted of mine. Or, at least she said she imported the filly. At that time, Vivaldi had just earned his elite stud book status and his foals were priced much higher than when I bought my first two by him. The mare she got ended up having serious issues. They had to make her a broodmare to try & recoup the money they spent. Although, buying foals elinares the cost of QT when importing horses.
Idky exactly why mb tried so hard to get this horse from me- for her. I just know she really wanted this horse & when I didn’t agree - she basically ordered mb to never train the bigger brother again. The smaller one was way too small for mb & the bigger brother they knew there was zero chance I’d ever even consider selling or “trading,” even for any horse in the barn I wanted- except for one. (This was one of the offers made for the younger brother.) Don’t get me wrong- I don’t think this was the only reason for the target on my back from her. But definitely a big contribution. There were other things going on I had no idea about until way, way later. None of them my fault. I honestly had no idea what I was walking into. I mean, I knew the divorce was happening right then, but I didn’t know much else.
Once I put the puzzle together, it all made sense. It was also too late to do anything about it - except wish I saw right through her from day 1. There were a lot of moving parts. Those who felt their lives were in danger when they boarded or trained there didn’t know me …they were long gone. I only received SEVERAL apology messages from people I’ll never name - after the shooting. All of them sad I’d been shot but happy it wasn’t they at the other end of the gun barrel, bc, as they’d confided - they were in serious fear for their lives at the time.
Had I known the major drama taking place right under my nose- I’d have declined to take the apartment & move to nj with them. I’d have instead taken a different trainer & stayed in Fla year round. Or, just gone back to NC with the trainer I came with.”

[Knights_Mom]

Hindsight is 20/20 they say.

[MHM]

@Knights_Mom

Hindsight is 20/20 they say.

On both sides, no doubt.

[Knights_Mom]

Absolutely.

[trubandloki]

@Knights_Mom

I don’t know how much wiggle room NJ prosecutors have and I can’t answer why they wouldn’t have charged a laundry list of stuff.

I need someone way smarter than I in NJ criminal law.

This is the type of question I wish LK or IM would answer. They have insider information with the prosecutor and this feels like something that would have come up during discussions.
It does seem like it would make more sense to include more charges because no matter how sure one is about their case, you never know what the jury will think so offering lower charges gives them something to convict on. It seems like something that there just has to be a reason for.

@MHM

The bail reform laws in New York that took place within the last couple of years seem to be a huge failure in my mind

I totally agree. In my city we have people who keep getting arrested for things that end up being dangerous (like this, vehicle theft that leads to a high speed chase, possession of an illegal fire arm) but can not be held and a few days later are arrested again, but can not be held, lather, rinse, repeat.

Thank you @SummerRose, that link was interesting.

[Angela_Freda]

"Had I known the major drama taking place right under my nose- I’d have declined to take the apartment & move to nj with them. I’d have instead taken a different trainer & stayed in Fla year round. Or, just gone back to NC with the trainer I came with.”

But when she did know, she did what…?

[Angela_Freda]

@MHM

The bail reform laws in New York that took place within the last couple of years seem to be a huge failure in my mind

What people miss is that, afaik, judges in NY have discretion to require bail or remand people.
Judges, fairly or not, are the last protection the public has, and in cases of super dangerous alleged perpetrators of heinous crimes, if they are “let go” thank a judge who chose not to exercise that power.

[SillyHorse]

@CHT

Man doesn’t know how to react to being bossed/beaten/outdone by this woman.

This is just laughable.

[eggbutt]

@iris2006

None of them my fault. I honestly had no idea what I was walking into. I mean, I knew the divorce was happening right then, but I didn’t know much else.
Once I put the puzzle together, it all made sense. It was also too late to do anything about it - except wish I saw right through her from day 1.

Was anything LK’s “fault”?? A potential juror is logically going to ask why she didn’t leave when she became aware of all this plotting and danger? We are aware she had several offers to leave and take the animals with her but chose not to. Of course, not leaving does not give grounds for acquittal, but all the “puzzle pieces” falling into place regarding the harassment, pressure, taunts (we’ve all seen examples of LK’s taunting and belittling tactics) sure does imply mental breaks. I still haven’t ruled out self defense either, as I know others also suspect.

So instead it was a big plot by MH to get a horse. Does that make any sense to anyone?

[eggbutt]

@CHT

Man who is used to be unquestioned/fawned over/idolized meets a woman who calls him out and expects him to uphold an agreement and won’t back down.

Man doesn’t know how to react to being bossed/beaten/outdone by this woman. Man doesn’t know how to react appropriately because in his mind he is THE MAN.

Friend of man is the kind of woman who doesn’t question and idolizes man, and doesn’t think to question why man wants gun.

Man snaps and takes the sadly common (american) way of resolving the disconnect between how he sees him self and how first woman treats him, and uses a gun to resolve this disconnect and takes back his power.

COTHers continue his work by questioning, mocking, and poking at the mental health of the woman who was SHOT.

Can we stop assuming the man, just because he was a successful rider, and presented himself as “mentally stable” (but in hindsight that seems doubtful) is the better of the two? It reminds me of people doubting the charges against GM because of his successes. I mean, I get people want to try to explain how this went so very wrong, but why are we looking for reasons that the victim prompted being shot, rather than what caused a man to once again resolve his issues with a GUN? It may be more helpful to look into what we need to look for in these (mostly) male trainers who abuse their power and have a disconnect with reality.

This post is remarkable in what is omitted. “The Man” was also a business owner with every right to stop doing business with “The woman”.

I’m definitely not sure how The Man “abused his power” by demanding The Woman leave. This is, IMO, the most ridiculous assumption of this post, “Man doesn’t know how to react to being bossed/beaten/outdone by this woman.”

[Angela_Freda]

@eggbutt

“Man doesn’t know how to react to being bossed/beaten/outdone by this woman.”

Exactly, it’s his business.
Beaten? Outdone?
What? Those do not fit in a business relationship of client and professional.

He had a business and was seeking to severe his business relationship with a customer/client.
Pretty simple.

[Libby2563]

@trubandloki

It does seem like it would make more sense to include more charges because no matter how sure one is about their case, you never know what the jury will think so offering lower charges gives them something to convict on. It seems like something that there just has to be a reason for.

No idea on the specifics of this case, but as with everything else involving a prosecution or any trial, there are strategic considerations in charging. Sometimes if the jury has too many options, they unable to reach an unanimous verdict or they convict on an inappropriately minor charge (to the prosecutor’s eyes anyway).

As an example, in a criminal case in which I testified as an expert witness a couple years ago, the defendant was indicted on a felony. The prosecutor did not want the jury instructions to include related misdemeanors. The defense did. Both sides drafted their preferred jury instructions and argued their side to the judge, whose jury instructions ultimately did include the misdemeanors as well as some other language favorable to the defendant.

Deliberations ended in a hung jury when the judge cut them off at 8 pm on a Friday night. A couple jurors approached the prosecutor and me afterwards to express their frustration, almost to the point of tears, with the outcome. None of the jurors had wanted to acquit the defendant (even the defense expert basically agreed with my opinion on the facts), but there were two jurors who were sympathetic to him and favored a misdemeanor conviction. One had been convinced to convict on the felony when the judge called time, and the jurors we spoke with felt that if the judge had given them another 10-20 minutes they would have reached a verdict. Instead, the case was resolved after the trial with a plea to one of the misdemeanors because that was preferable to retrying the whole case.

[Knights_Mom]

@eggbutt

@CHT

Man who is used to be unquestioned/fawned over/idolized meets a woman who calls him out and expects him to uphold an agreement and won’t back down.

Man doesn’t know how to react to being bossed/beaten/outdone by this woman. Man doesn’t know how to react appropriately because in his mind he is THE MAN.

Friend of man is the kind of woman who doesn’t question and idolizes man, and doesn’t think to question why man wants gun.

Man snaps and takes the sadly common (american) way of resolving the disconnect between how he sees him self and how first woman treats him, and uses a gun to resolve this disconnect and takes back his power.

COTHers continue his work by questioning, mocking, and poking at the mental health of the woman who was SHOT.

Can we stop assuming the man, just because he was a successful rider, and presented himself as “mentally stable” (but in hindsight that seems doubtful) is the better of the two? It reminds me of people doubting the charges against GM because of his successes. I mean, I get people want to try to explain how this went so very wrong, but why are we looking for reasons that the victim prompted being shot, rather than what caused a man to once again resolve his issues with a GUN? It may be more helpful to look into what we need to look for in these (mostly) male trainers who abuse their power and have a disconnect with reality.

This post is remarkable in what is omitted. “The Man” was also a business owner with every right to stop doing business with “The woman”.

I’m definitely not sure how The Man “abused his power” by demanding The Woman leave. This is, IMO, the most ridiculous assumption of this post, “Man doesn’t know how to react to being bossed/beaten/outdone by this woman.”

The post really isn’t worth responding to.

[Knights_Mom]

@Libby2563

@trubandloki

It does seem like it would make more sense to include more charges because no matter how sure one is about their case, you never know what the jury will think so offering lower charges gives them something to convict on. It seems like something that there just has to be a reason for.

No idea on the specifics of this case, but as with everything else involving a prosecution or any trial, there are strategic considerations in charging. Sometimes if the jury has too many options, they unable to reach an unanimous verdict or they convict on an inappropriately minor charge (to the prosecutor’s eyes anyway).

As an example, in a criminal case in which I testified as an expert witness a couple years ago, the defendant was indicted on a felony. The prosecutor did not want the jury instructions to include related misdemeanors. The defense did. Both sides drafted their preferred jury instructions and argued their side to the judge, whose jury instructions ultimately did include the misdemeanors as well as some other language favorable to the defendant.

Deliberations ended in a hung jury when the judge cut them off at 8 pm on a Friday night. A couple jurors approached the prosecutor and me afterwards to express their frustration, almost to the point of tears, with the outcome. None of the jurors had wanted to acquit the defendant (even the defense expert basically agreed with my opinion on the facts), but there were two jurors who were sympathetic to him and favored a misdemeanor conviction. One had been convinced to convict on the felony when the judge called time, and the jurors we spoke with felt that if the judge had given them another 10-20 minutes they would have reached a verdict. Instead, the case was resolved after the trial with a plea to one of the misdemeanors because that was preferable to retrying the whole case.

And this is exactly what I mean when I say these cases are totally unpredictable.

As for the lesser charges being included: in one way they provide jurors with a choice - convict on all or just some but there is still a conviction

OR

If you give them but one choice then are they more likely to convict on that charge or do you take the chance of getting possibly nothing?

[Inigo-montoya]

You owe no apologies, in my opinion. I read your post to be supportive and in the spirit of the kindness Mrs Kanarek suggested.

I believe LK misinterpreted your post and if I can get a message to her I’ll let her know that.

The only thing I can say in defense of LK is that she is so used to being attacked by the usual suspects every day is that she overreacted.

By way of example, you can see that the usual suspects are already here doing their “thing” first thing Sunday morning.

Yesterday a poster…CHT…laid out a scenario that might explain what happened and was somewhat sympathetic to LK. As usual…no…as always…the usual haters are already here mocking the CHT post and suggesting it be ignored.

What a sick, pathetic agenda to start one’s day!

Thank you for your kind post and I’m sorry it was misinterpreted.