WOW! New Info in Barisone-Kanarek Saga

[YankeeDuchess]

[edit]

So who was it that blurted out that she knew for a fact that Barisone has consulted a lawyer about eviction procedures prior to shooting her?

[YankeeDuchess]

@Incantation

You need proof they received the notice. Having them sign that they received it is one way, especially if they won’t answer the door for the server. Certified mail only works if they pick it up, and people like that won’t. At least that what happens in MA.

This was discussed in a previous thread. Maybe you’re right. With certified mail, at least you have evidence that the post office attempted to deliver it.

[SillyHorse]

I’m pre-colonoscopy this week, so my recipes include white bread, rice, broiled chicken and fish, and at the end, clear liquids.

Follow me for more recipes!

[YankeeDuchess]

@soloudinhere

he isn’t on trial for premeditated murder, thus it would be foolish to defend against it. He can’t be, seeing as nobody has died.

Attempted homicide could be reduced to assault with a deadly weapon. I don’t consider it to be likely that it would be reduced to a weapons charge instead of a crime against a person, but even so, this is done by the grand jury and cannot be done by a trial jury. Since the grand jury does not hear defendant testimony, your proposed outcome is not possible under New Jersey law.

The prosecution’s need to establish a motive is the same whether the charge is premeditated murder or attempted premeditated murder. But you’re right, he is charged with attempted first degree murder since no one died. 

   When the judge gives instructions to the jury at the end, does the judge have the discretion to say “If you don’t think premeditation was proven, you can convict on attempted second degree murder or some other lesser charge”?  If the option for the jury is all or nothing on attempted first degree murder, I would have thought the state would have thrown in a bigger menu of charges, like second degree murder or assault.

[YankeeDuchess]

@SillyHorse

I’m pre-colonoscopy this week, so my recipes include white bread, rice, broiled chicken and fish, and at the end, clear liquids.

Follow me for more recipes!

In honor of Coronavirus, wouldn’t it be more fun to “share” what items we are stockpiling in anticipation of a lockdown?

[soloudinhere]

@YankeeDuchess

The prosecution’s need to establish a motive is the same whether the charge is premeditated murder or attempted premeditated murder. But you’re right, he is charged with attempted first degree murder since no one died.

When the judge gives instructions to the jury at the end, does the judge have the discretion to say “If you don’t think premeditation was proven, you can convict on attempted second degree murder or some other lesser charge”? If the option for the jury is all or nothing on attempted first degree murder, I would have thought the state would have thrown in a bigger menu of charges, like second degree murder or assault.

Juries are generally not equipped to understand the distinction between different charges. In some jurisdictions, a judge CAN instruct that the jury can convict on a lesser included offense, in other words, in order to commit aggravated murder you must also have committed an aggravated assault, but you could likely not be convicted of a weapons charge as a lesser included offense since the weapons charge is not part of the murder charge.

In many jurisdictions the defendant must specifically request this as it effectively is charging him with crimes for which he has not been able to answer charges. In others, the judge can provide the instruction only if they feel there is substantial evidence of guilt of the lesser included charge.

There was a court case over this, New Jersey v. Funderberg, that specifically held that a defendant does not have the right to a jury instruction on a lesser included charge where there is not substantial evidence that the prosecution has proven the lesser included charge. The subject of that case was actually the charge of “provocation manslaughter”

The law is rarely as simple as internet lawyers would like it to be. For example, you state that the prosecution must establish a motive. That is actually not true in the state of New Jersey. It is, however, true if all you do is watch Law and Order reruns.

[YankeeDuchess]

@soloudinhere

Juries are generally not equipped to understand the distinction between different charges. In some jurisdictions, a judge CAN instruct that the jury can convict on a lesser included offense, in other words, in order to commit aggravated murder you must also have committed an aggravated assault, but you could likely not be convicted of a weapons charge as a lesser included offense since the weapons charge is not part of the murder charge.

In many jurisdictions the defendant must specifically request this as it effectively is charging him with crimes for which he has not been able to answer charges. In others, the judge can provide the instruction only if they feel there is substantial evidence of guilt of the lesser included charge.

There was a court case over this, New Jersey v. Funderberg, that specifically held that a defendant does not have the right to a jury instruction on a lesser included charge where there is not substantial evidence that the prosecution has proven the lesser included charge. The subject of that case was actually the charge of “provocation manslaughter”

The law is rarely as simple as internet lawyers would like it to be. For example, you state that the prosecution must establish a motive. That is actually not true in the state of New Jersey. It is, however, true if all you do is watch Law and Order reruns.

In the case of Barisone, in addition to the two counts of attempted first degree murder, he was charged with two counts of possession of a weapon for an unlawful purpose. So the weapons charges are there, and don’t need to be a lesser included charge.

Perhaps it would be more accurate to say that the prosecution needs to prove premeditation, and in proving premeditation, it is useful to have a theory of the crime that provides a motive that the jury finds credible. I’m basing that more on logic than on “Law and Order reruns”.

It was an honest question re the judge having the discretion to give the jury the option of convicting on a lesser (included) charge if the prosecution fails to prove premeditation. Are you saying that the judge can offer the option of convicting on second degree instead of first degree murder, if the prosecution fails to prove premeditation? The weapons charges were charged separately.

[Incantation]

@YankeeDuchess

This was discussed in a previous thread. Maybe you’re right. With certified mail, at least you have evidence that the post office attempted to deliver it.

In MA that is not good enough.

[Jenerationx]

Premeditation is not the same as motive, and either can be present without the other. If the DA did not charge 2nd degree, then it would be very odd for a judge to say that since first degree wasn’t proven, go ahead and consider 2nd degree to the jury. That’s just not how it generally works. At all. If the DA doesn’t feel the case is strong enough as presented to the jury, that’s when a plea deal might be offered.

[YankeeDuchess]

@Incantation

In MA that is not good enough.

Based on what I read on the site Accidental Renter, for NJ specifically, one option for conveying the notice to quit is to send certified mail, receipt requested, and if it is refused, then to follow up with first class mail. In NJ, according to this site, that documentation of the attempt to deliver the notice is enough. Not surprising if MA is different.

At the same time, I don’t see how it makes much difference what the documents were.

[YankeeDuchess]

@Jenerationx

Premeditation is not the same as motive, and either can be present without the other. If the DA did not charge 2nd degree, then it would be very odd for a judge to say that since first degree wasn’t proven, go ahead and consider 2nd degree to the jury. That’s just not how it generally works. At all. If the DA doesn’t feel the case is strong enough as presented to the jury, that’s when a plea deal might be offered.

@soloudinhere

sounded pretty knowledgeable about this (certainly more knowledgeable than I). I understood her to say that if you think of various charges as sort of nesting Russian dolls, the judge could instruct the jury to consider 2nd degree murder as well as first degree murder if second degree murder is included or nested in first degree murder. Perhaps the defendant needs to request consideration of the lesser, included charge.

Plea deals are usually offered prior to the start of a trial. If the trial is already underway, can the DA still offer a plea deal? Honest question.

[YankeeDuchess]

@AnotherRound

So this child, this infantile needy sad womean, just posted on her f b page her video, yes, I say, VIDEO, of her being extubated in the hospital.Yes, not only did she agreee to have her extubation video taped, as creepy as that is, she now has posted it on her facebook page. Open for the whole public. Anyone can post on her page,. Apparently looking for both lovers and haters, she posts a video of her extubation on her facebook page. All kinds of “love you” and “your’e so brave”. After making such a big deal of saying at the very beginning that she wasn’t going to post photos of her in the hosptial, no videos, no photos, because that was private and personal. What a job. What a great show. Looking for attention where ever she can get it. I can’t. I just can’t.

Coronavirus kills by damaging the lungs. Given that her lungs have already sustained damage from the gunshots, she probably has a higher risk of dying from the virus than she would have been based on her age bracket alone.

[Omgitsme]

@YankeeDuchess

Coronavirus kills by damaging the lungs. Given that her lungs have already sustained damage from the gunshots, she probably has a higher risk of dying from the virus that she would have been based on her age bracket alone.

Scary thought. I’m 29 and I’ve already had to have the pneumonia vaccine so my lungs are already a crap shoot. Hope she’s taking precautions. The rest of you all as well!

[YankeeDuchess]

@Omgitsme

Scary thought. I’m 29 and I’ve already had to have the pneumonia vaccine so my lungs are already a crap shoot. Hope she’s taking precautions. The rest of you all as well!

Having had the pneumonia vaccine is good. As I understand it, it’s the pneumonia and other respiratory issues that are fatal.

[Graymaresrule]

@Omgitsme

Scary thought. I’m 29 and I’ve already had to have the pneumonia vaccine so my lungs are already a crap shoot. Hope she’s taking precautions. The rest of you all as well!

I’ve got pneumonia. It sucks

[Omgitsme]

@Graymaresrule

I’ve got pneumonia. It sucks

People are usually baffled I’ve had the vaccine at my age, but I had it ay least three times in one year so vaccine it was. Haven’t had it since. 🤞🏻

[Omgitsme]

@YankeeDuchess

Having had the pneumonia vaccine is good. As I understand it, it’s the pneumonia and other respiratory issues that are fatal.

That’s a fair point. I just figure my lungs are already pretty damaged so it could end up being an issue.

[Jenerationx]

Plea deals can happen at any point in the trial until the jury’s verdict is read.

[soloudinhere]

@YankeeDuchess

In the case of Barisone, in addition to the two counts of attempted first degree murder, he was charged with two counts of possession of a weapon for an unlawful purpose. So the weapons charges are there, and don’t need to be a lesser included charge.

Perhaps it would be more accurate to say that the prosecution needs to prove premeditation, and in proving premeditation, it is useful to have a theory of the crime that provides a motive that the jury finds credible. I’m basing that more on logic than on “Law and Order reruns”.

It was an honest question re the judge having the discretion to give the jury the option of convicting on a lesser (included) charge if the prosecution fails to prove premeditation. Are you saying that the judge can offer the option of convicting on second degree instead of first degree murder, if the prosecution fails to prove premeditation? The weapons charges were charged separately.

The problem is that the prosecution is not really required to prove premeditation. In New Jersey, they are only required to prove that the defendant did NOT commit the crime in the heat of passion, and that they knew their action could kill a person.

“A person is guilty of murder if he/she: (1) caused the victim’s death or serious bodily injury that then resulted in death; and (2) the defendant did so purposely or knowingly; and (3) did not act in the heat of passion resulting from a reasonable provocation.”

The same applies to attempted murder in the state of New Jersey.

The prosecution is required to prove beyond a reasonable doubt that the defendant was not provoked or impassioned at the time of commission of the crime. I’m sure you can see where I’m going with this.

[YankeeDuchess]

@soloudinhere

The problem is that the prosecution is not really required to prove premeditation. In New Jersey, they are only required to prove that the defendant did NOT commit the crime in the heat of passion, and that they knew their action could kill a person.

“A person is guilty of murder if he/she: (1) caused the victim’s death or serious bodily injury that then resulted in death; and (2) the defendant did so purposely or knowingly; and (3) did not act in the heat of passion resulting from a reasonable provocation.”

The same applies to attempted murder in the state of New Jersey.

The prosecution is required to prove beyond a reasonable doubt that the defendant was not provoked or impassioned at the time of commission of the crime. I’m sure you can see where I’m going with this.

 As I now understand it, the prosecution does not need to establish motive or premeditation, but just prove that the shooter understood that his action could result in death, and prove that it was NOT committed in the heat of the moment. In general it is difficult to prove a negative. Perhaps I can fall back to rephrasing my point without using either the word premeditation or motive. The prosecution will have a theory of the crime which includes a theory of why Barisone decided to shoot at them, and this theory will be proposed as an alternative to a defense theory that he had had no prior thought of shooting them, and just fired the gun in the heat of the moment. While it’s difficult to prove a negative, the only way to do it is to establish an alternative theory. Based on what Barisone’s attorney said in the hearing, I think the prosecution’s theory of what happened is that LK was gathering evidence of fraud, MB realized it, and was desperate to cover up the fraud. If this theory is correct, I would think the defense could still argue that Barisone was  “provoked” by LK’s documentation of fraud, and was “impassioned” at the time of the crime, so I’m still confused by the notion that the prosecution is required to prove that particular set of negatives.