(Photo: Ulbis Rivera)By: Dovesblood
On October 3rd. 2008, the murder trial of Nixzmary Brown's mother, Nixzaliz Santiago, continued. First, I'll say what happened in a nutshell, then I'll describe the testimony in detail.
HERE'S WHAT HAPPENED IN A NUTSHELL: Ulbis Rivera was called back to testify. She's the upstairs neighbor who gave an interview to the newspaper, The New York Daily News, in an article entitled, "The Awful Lies At Death's Door", where she claimed that Nixzaliz confessed to her that Cesar would beat on her. When she testified at Nixzaliz's trial on Sept. 26th. she denied that Nixzaliz ever made that confession to her. It matters because if Nixzaliz was abused by Cesar a jury could infer domestic violence and think Nixzaliz was to scared to help her daughter. At a previous hearing, D.A., Ama Dwimoh said Rivera told her that Daily News reporter, Nicole Bode, whose name appears under the article, never interviewed her! Today, Rivera identified Nicole Bode as the woman who did, in fact, interview her. Rivera also denied ever telling the reporter that Nixzaliz confessed to her that Cesar would beat her.
The prosecution rested.
The defense called it's first witness, Daily News reporter, Nicole Bode. (pronounced like: load, only with a "b") Bode testified before the jury that Rivera DID tell her that Nixzaliz confessed to her that Cesar would beat her.
Second defense witness: Detective Scandole. He stated that according to his DD5 police report from 2 years ago, that Rivera told him that Nixzaliz awakened her by banging on her apartment door. Rivera, previously denied this, claiming Nixzaliz only knocked. The defense called him to impeach Rivera about that inconsistancy in her testimony.
Defense's third witness: Detective Ferrara. He testified that the first cop on the scene, Eric Nolan told him that the 5 children were gathered around Nixzaliz, she was in a frantic state of mind and kept crying out, "my child, my child, my child!". The defense called him to impeach P.O. Eric Nolan, who previously denied Nixzaliz was in a frantic state of mind.
The defense's appellate lawyer, Beverly Van Ness, argued before the judge all the reasons why alot of the charges against Nixzaliz should be dismissed due to lack of evidence.
HERE'S THE TESTIMONY IN DETAIL: Friday, October 3rd. 2008, was another day of testimony in the murder trial of Nixzmary Brown's mother, Nixzaliz Santiago. Judge Patricia DiMango was wearing a black sleeveless shirt with a low U shaped neckline, under her robe. Defense lawyer, Sammy Sanchez was wearing a black suit. Defense lawyer, Kathleen M. Mullin, was wearing a royal blue top and a black skirt. Lead D.A., Ama Dwimoh (ja-mo) was wearing a white suit jacket with a gray tic-tac-toe design and a black skirt. Asst. D.A., Linda Weinman, was wearing a black dress. Asst. D.A. Anthea Bruffee, was wearing a blue skirt suit. Nixzaliz was wearing a lavender sweather with a purple ring around the neck and sleeves. She also wore a purple bun holder in her hair that encompassed the entire bun. On the back of the purple bun holder was a yellow sunflower. She also wore black rimmed glasses.
The Daily News lawyer, Ann Carol and Daily News reporter, Nicole Bode, were seated in the first row.
Judge DiMango said she's bringing in the upstairs neighbor, Ulbis Rivera, outside of the presence of the jury, to look at the photos of the 3 women and identify which one interviewed her.
The court reporter tells the judge that she's not on the record because the clerk didn't call it yet.
DiMango tells the Daily News reporter, Nicole Bode, who's being called as a defense witness today, to step out of the room.
Dwimoh said, in reference to her conversation by phone with Nancy Dillon yesterday, that Dillon, who now works for the Daily News in California, was at 571 Greene Ave. 2 years ago and handed out her buisness card to everyone. Daily News lawyer, Ann Carol, stated that Dillon assured Dwimoh that she never interviewed Rivera.
Rivera is brought into the room wearing a black trenchcoat with a black pocket book.
DiMango steps down from the bench and walks over to the court reporter's location. The lawyers join her. A Spanish translator will translate for Rivera. This translator is not Migdalia or Jeanette, it's a middle aged woman with short hair. Rivera, who's standing with the judge and lawyers huddled around court reporter, is shown the 3 photos one by one and is asked if this is the woman who interviewed her. First photo: Rivera says, no. Second photo, Rivera says, "si" (spanish for yes), third photo, Rivera said, no. After that she leaves the room. Rivera identified Bode as woman who interviewed her.
Ms. Carol is called up to the bench. They conference.
One juror is missing, it's 10:30 am.
DiMango handles another case. It's about a black male on post release supervision.
After jury arrived, Rivera is brought back into the room for further cross examination by defense lawyer, Kathleen Mullin.
Mullin: how are you? Rivera: not well. Mullin said: you remember being interviewed by the Daily News that featured your photo on the front page. Mullin said that Rivera will recall from her testimony last week that she knew Nixzaliz was being beaten by Cesar. Rivera says, NO.
Mullin asked Rivera what was the name of reporter who came to her home, Rivera: don't remember.
Mullin: you told the reporter that Nixzaliz said to you that Cesar beat her. Rivera: I never said this.
When asked if she read the article, Rivera said her daughter read her the article.
Mullin asked Rivera if she or anyone on her behalf, called the Daily News to correct the reporter's mistake. Rivera said, no.
D.A. Dwimoh, did the re-direct. Under re-direct, Rivera said: the part that says that Cesar beat her is impossible that I said that. She never told me he beat her.
Rivera also mentioned the fetus in the house and said that it was her youngest daughter who's 22, that dialed 911. Dwimoh started asking her about the fetus in the jar that Nixzaliz brought up to Rivera's apt. Mullin objected.
Dwimoh asked: did you know you could call the Daily News and have them correct the article? Rivera said, no.
Defense lawyer, Mullin did the re-cross. Mullin asked if the reporter and photographer who introduced themselves gave her their buisness cards. Rivera said no. Mullin pointed out that Rivera would have no idea how to contact her. (because she didn't have reporter's buisness card)
D.A., Dwimoh, does a re-direct. Rivera said under re-direct that: my granddaughter's family approached me and told me I could've said something. Rivera also said that the press were bothering her children.
The testimony ends and there's a bench conference.
As Rivera walked out, I noticed she had a white hair clip (claw shaped) clipped to her coat.
After Rivera left, Dwimoh said they're entering into evidence Nixzmary's birth certificate from the City of Waterford Conn. (I think she meant Waterbury) Bruffee then reads Nixzmary's birthday, July 18th, 1998. Also entered into evidence was the birth certificate of Nixzaliz Santiago Gonzalez from Aguadilla, Puerto Rico. Her birthday is April 16th, 1978. Asst. D.A., Weinman, also entered into evidence, hospital records from when Nixzaliz had the miscarriage. (first she went to Lutheran Hospital, then Woodhull) The records were for Lutheran Center, admission date: Nov. 27th 2005, 2:54 pm, Discharge date: Nov.27th. 2005, 7:50pm. The diagnosis was: possible incomplete abortion. (that's just medical terminology for a miscarriage, it does not mean an actual abortion)
After the prosecution entered these documents into evidence, The lead D.A., Ama Dwimoh, announced that the People of the State Of New York rest their case against Nixzaliz Santiago. When Dwimoh announced that, it was a solemn moment, at least for me. I took a deep breath. I felt cold. I felt drained. My stomach dropped. After 3 long years of fighting for justice for little Nixzmary Brown, it was over. The prosecution was resting. That moment did not go unnoticed, at least by me. I felt it.
The defense started their case by calling as their first witness, Daily News reporter, Nicole Bode. Bode was tall, dark blonde hair, in her 30's and wore an olive green pant suit.
DiMango allowed the Daily News lawyer, Ann Carol, to stand next to Bode. DiMango said: Ms. Carol has to protect whatever interest the Daily News has.
Defense attorney, Kathleen Mullin, did the direct exam. Bode testified she's been employed with the Daily News for 7 years, currently assigned to the Queens Supreme Court as a reporter.
She said that after Nixzmary died, she went to Greene Ave with her photographer, no one else, and other media was outside the house. Bode said that either Rivera or her daughter invited the photographer in. She said: I was invited into the house, don't recall the floor, went into the apartment. The upstairs neighbor was a middle aged woman.
Bode said that she as the reporter, phoned her notes into the Daily News and someone named Tracy Connor wrote the story based on her notes. Dwimoh objected.
DiMango has a bench conference out in the hallway.
Mullin comes back and Bode confims that Tracy Connor was not present during the interview.
Mullin asked her if the upstairs neighbor told her that Nixzaliz said Cesar beat her. Bode said she can't recall outside from the story. Mullin said: after you reviewed the story, did you recall? Dwimoh and Weinman both object at the same time, their voices singing together like the Bobbsey twins. Bode: not to my recollection and said she read the story the day it ran.
Bode said she doesn't know if Tracy Connor had information from anyone else when she wrote the story but she (Bode) was the only person there that day.
Dwimoh kept constantly objecting.
Mullin: is it your habit to report accurately and objectively about a story? Bode: to the best of my ability.
Mullin: Do you have occassion to make editorial changes? Bode: no.
Lead D.A., Ama Dwimoh, did the cross exam. Dwimoh's tone of voice was confrontational and argumentative with Bode. She was trying her best to upset Bode, throw her off, make her angry. Ever sentence was sarcastic and intended to unnerve Bode. Bode is basically impeaching one of the prosecution's major witnesses, Ulbis Rivera, so that's why Dwimoh was doing that.
When Dwimoh walked over near the jury box to start questioning Bode, she dropped a paper and juror 1, a black male, picked it up for her.
Dwimoh accused Bode of going to 571 Greene Ave, to try and sell a story. Bode said that she went to report and get information on the story and said: my job is not to sell anything.
When Dwimoh asked her where her notes were from that day, Bode said she doesn't keep notes dating back that far and that she's done 700 stories since then.
Dwimoh pointed out that there are a number of places in the interview with quotes from Rivera. Dwimoh said that places in the article that state that Santiago confessed that Cesar would beat her and Rivera counseling Nixzaliz to leave him is NOT in quotes. She said, what is in quotes is the part where Rivera says Nixzaliz wanted to have a baby from Cesar. Bode confirmed that.
Dwimoh pointed out that when Nicole Bode interviewed Rivera, she spoke to her in English despite her (Bode) being fluent in Spanish. Bode confirmed, but never gave a reason why she didn't speak to Rivera in Spanish.
Dwimoh: you threw your notes out after a period of time why? Body: not enough space. Dwimoh: isn't the Daily News a huge building. Mullin objects.
Dwimoh said that Rivera said she didn't want her name to be used in the article. Bode: she said she didn't want her name used and we didn't. Dwimoh: you plastered her face on the front page of the Daily News!! Bode: did I personally do that? Dwimoh: your paper plastered her face on the Sunday editon!!
Dwimoh: once the reporter does the interview, someone else writes the article and then the article is submitted to the editor? Bode said yes but doesn't know how many editors. Bode confirmed that the editors weren't present during the interview.
Dwimoh asked her what the purpose of quotes were? Bode: general purpose is to say something that the person said in their own words. Dwimoh said at times the reporters quote verbatim and at times they paraphrase. Dwimoh: you think you can say it better? Bode said, no and that they paraphrase for space reasons.
Dwimoh shows Bode the article and says to her, "go to the last page of the article you didn't write. 2nd column, last paragraph." (That phrase was just dripping with sarcasm but amazingly Bode remained as cool as a cucumber under the pressure. She was obviously coached beforehand. The reporters phone in their notes and someone else writes the story, in this case it was Tracy Connor) The judge then said there was no foundation for admitting this article into evidence. (the article impeaches Rivera, though I'm not sure what the legal foundations she was referring to are) Dwimoh said that there are no quotes around the part that claims Santiago confessed or the part that says by late November, Santiago became pregnant.
Bode confirmed that it was Rivera's 22 year old daughter that dialed 911 and that Rivera told her that Santiago sat there stone faced.
Dwimoh: Rivera told you that Nixzaliz said that Nixzmary had beaten herself black and blue. Dwimoh, "you said it was, ludicrous." Bode: that's the assesment made by the writer.
As this point, two jurors signal for a bathroom break.
There's a sidebar.
Afterwards, Dwimoh asked Bode if there was more than one source of information. Bode answered, that on the story, that's possible. Dwimoh has no more questions.
Defense lawyer, Mullin, does the re-direct. Mullin confirmed that Bode said that there was no other source attributed to Rivera's statements. Mullin: the government asked you what you quoted. The remainder of the quote that the government did not ask you was about, "like a zombie". Bode: yes. Mullin: neighbor quoted, "like a zombie"? Body said, yes. Bode confirmed that if something is not in quotes, it doesn't mean that it's not inaccurate. She said it was done "to the best of my ability."
D.A., Dwimoh, did the re-cross. She kept mispronouncing the reporter's last name, calling her Bo-dee when her name is pronounced Bow-d. Dwimoh has a last name that most people mispronounce, so you'd think she'd be more careful to pronounce other people's names. Then again, she was probably doing it to unnerve Bode and make her mad.
Dwimoh pointed out that Bode has no independent recollection of the interview and the part that said, "Santiago confessed Rodriguez would beat her" is not in qoutes.
Testimony ends, Bode leaves, there's a bench conference.
Judge DiMango then addressed the jury saying: Rivera testified that she never told anyone Nixzaliz told her Cesar would hit her. You also heard testimony from Bode about an article printed to the contrary. It's agreed that any testimony is not to establish that Nixzaliz was hit or that Nixzaliz did tell Rivera, - testimony was offered solely to show that Rivera on an earlier occassion made statements inconsistant with testimony in the courtroom.
Afterwards, the defense called their second witness, Detective Christopher Scandole. Detective Scandole's complexion was pinkish, he had a buzz cut and a Hulk Hogan mustache that was dark. He testified that he works in the Brooklyn north homicide squad, shield # 5735, and has worked for the police dept for 21 years.
Defense lawyer, Kathleen Mullin, did the direct exam. Det. Scandole said he was assisting detectives handling Nixzmary's case that morning. He said he interviewed Ulbis Rivera at the 79th det. squad in the immediate hours following Nixzmary's death.
Mullin: she told you, "she woke me up banging on the door,'can you help me, can you help me, I think my daughter is dead'?" Scandole looks at his DD5 police report that he wrote 2 years ago and confirmed that that's what Rivera told him.
The prosecution had no questions for him. He was on the stand a grand total of approx. 3 minutes.
There's a 5 minute recess, Nixzaliz taken out of the room.
At 12pm. the usual Spanish translator, Migdalia comes in.
Judge DiMango is at the bench at a bench conference. She's blowing her nose with white tissue. Ever since jury selection started back on September 15th, the judge has had a cold and was coughing, and blowing her nose. It's October 3rd and the judge is still blowing her nose. It's like the world's longest cold. I actually was sick during Det. Valentine's testimony but I got over my cold in 3 days. Everytime you look up at the bench, DiMango's got a tissue to her nose, similar to the way a Muslim woman has her face covered from the nose down. She looks like a very fashionable Muslim woman up there. (she likes to wear evening dresses)
DiMango said that during the course of Rivera's testimony the attorneys asked that a curative(?) statement be given to the jury, everyone agreed to it. She also said they'd be entering a stipulation that Cesar was fired from his job Nov. 27th., 2005. They don't have the time yet.
A stipulation is where the judge tells the jury that both parties agreed that had a witness came in and testify, that they would have said such and such. This prevents the witness from coming in because what they would've said the jury is already told.
Jury comes back into room.
Defense's third witness, Detective Alan Ferrara. Defense lawyer, Sammy Sanchez did the direct exam. Ferrara is tall, white, has a chunky build with dark hair. Badge # 4294, works as a Brooklyn nightwatch det. and has been employed for 18 years.
Ferrara said he was doing a preliminary investigation, interviewed the first cop on the scene, Eric Nolan, who met Cesar downstairs.
Sanchez asked: did Nolan tell you the 5 children were gathered around Nixzaliz, who was in a frantic state of mind, saying "my child, my child, my child"? Dwimoh objects that Sanchez is leading the witness, there's a bench conference and the judge told Sanchez to talk slower. Ferrara answers, yes. (that P.O. Nolan told him that)
The defense brought det. Ferrara here to impeach P.O. Nolan. Earlier during Nolan's testimony he told the jury that Nixzaliz was NOT in a frantic state of mind. 2 years ago, Nolan told Det. Ferrara that Nixzaliz WAS in a frantic state of mind. Ferrara has Nolan's statements to him written in his DD5 police report.
Defense finishes.
Ferrara gets up to leave but the judge tells him he's not done.
Asst. D.A., Linda Weinman, did the cross exam. Weinman got Ferrara to confirm that when he arrived at the apartment that Cesar was leaving the apartment with the cops,
Nixzmary's body was still there with the police present, and that Nixzaliz had access to every room except the room that Nixzmary's body was in.
Ferrara then said that Nixzaliz was calm, wasn't crying or screaming.
Defense lawyer, Sanchez did the re-direct. Ferrara again said that as he was going up the stairs, Cesar was coming down the stairs with the cops.
He reconfirmed that Nixzaliz was free to walk the entire house.
Testimony ends.
Judge DiMango tells the jury that in order to accomadate the Jewish holiday, that there's no court this Friday. She said to come back Tuesday after Columbus Day and there's no court Monday, which is Columbus Day.
After the jury was dismissed court was still in session. Defense lawyer, Mullin said: we have our appellate counsel here, Ms. Van Ness, who's prepared to go on the record. Beverly Van Ness is the defense's 3rd lawyer. She's an appellate lawyer. Van Ness made a series of motions for the judge to dismiss various counts against Nixzaliz due to lack of evidence. (there's the written law, then to find someone guilty of breaking that written law, the prosecution must prove certain elements were committed)
She first made a motion for the judge to dismiss the murder count due to insufficient evidence. Van Ness defined the elements needed for the prosecution to charge murder: the people have to prove that the defendant acted in a wicked or evil state of mind. People failed to meet that standard. People's theory is not that Nixzaliz caused the death. Nixzaliz admitted to 1 act of abuse 6 weeks earlier when Nixzaliz pushed Nixzmary giving her a black eye. She volunteered that sole act. It had nothing to do with death.
Van Ness said that the people's theory is a depraved mind murder.- she failed to act. Van Ness said she hadn't found a single murder case where the defendant failed to act. All cases involve some involvement.
She said there's no basis that Nixzaliz would've anticipated Cesar inflicting death on Nixzmary, that Nixzmary had alot of injuries and none of them were life threatening.
She said that the medical examiner said that an average person would not recognize signs of a hematoma, not observable to the naked eye.
She said, only spots of blood found, not pools of blood and Nixzaliz had no reason to think that her child was dying.
Van Ness said there's evidence in the record that belies depraved indifference: that Nixzaliz tried to give aid to her child, dressing her, bathing her, putting her near radiator. She was not taken back into an isolated room. She was put in the room with her siblings. They can act as reporters. Judge DiMango said that there was no evidence that there were kids in the room with her. Van Ness: Javier said that Nixzmary was not breathing.
Nixzaliz made efforts to stop Cesar, took steps to help her child.
The prosecution's appellate lawyer, Anthea Bruffee, gave the counter argument claiming the prosecution had legally sufficient evidence to charge murder. Bruffee said that: Nixzaliz did act with depraved indifference where the act or failure to act, relates to a vulnerable child. She had utter disregard for the value of human life, she failed to stop Cesar, she knew Cesar had injured Nixzmary and beaten her with a belt and his hands and left marks on her. Bruffee said: she knew when she told Cesar that Nixzmary did it, - that that was an element of depravity. Bruffee: she had a duty to care for her child. When she heard Nixzmary moaning on the floor naked for 2-3 hours, she did nothing. If that's not depravity, I don't know what is.
Sampson (prosecution's Medical Examiner) said there would be evidence of a subdural hematoma like moaning like the person is sick.
Bruffee said: look at the photographs. Anyone would know that Nixzmary needed medical care. She was a vulnerable child, low weight, pediatrician told her Nixzmary needed to eat.
Then Bruffee said that an element of depravity is not caring whether serious physical injury or death will result. She said Ulbis Rivera said that Nixzaliz's demeanor was that Nixzmary drowned in the tub and that she was not upset, that's depravity.
Bruffee also said that Nixzaliz said Nixzmary got the black eye on Dec. 1st. in her statement but the M.E. said the black eyes were sustained days before. She knew her husband would beat her child.
In reference to Van Ness's claim of no blood, Bruffee said that there were suds in the tub and a bucket outside. They cleaned it up.
Van Ness then made a motion to dismiss the reckless endangerment, manslaughter 1 and the 2 assault counts.
Van Ness said there was only one act of abuse that was volunteered and Nixzaliz didn't mean to push Nixzmary so hard. (they're talking about after Nixzmary did a prank on her brother, Nixzaliz pushed her causing her to fall and get the black eye. Afterwards, Nixzaliz immediately told Nixzmary that she was sorry)
Van Ness also said Nixzaliz didn't aide or encourage Cesar to beat Nixzmary. Van Ness: her son told her about the printer and she told Cesar because he was yelling at all of the children. If she was egging him on that would be different, no evidence she encourage him she tried to give aid to her daughter.
Asst D.A., Bruffee, said: that in regards to intent, the defendant told Cesar to ask Nixzmary about the yogurt (really Jello pudding but they're calling it yogurt because that's what Cesar called it in his video) and printer, she knew he was angry. Every statement includes a litany of things Nixzmary did wrong. She shared Cesar's displeasure of the child. She knew Cesar was beating Nixzmary and she didn't do anything-- that shows an intention- murder by proxy. She did do something, she allowed him to hit Nixzmary. Bruffee said you can act in concert by sharing someone's state of mind.
Van Ness then moved to dismiss the charge of possession of a weapon in the 4th degree: the floor. Van Ness: based on the action of pushing Nixzmary to the floor. Insufficient evidence Nixzaliz shared Cesar's intent.
Then Van Ness moved for the Unlawful Imprisonment charge to be dismissed. Van Ness said that the law says that the person has to be exposed to a risk of serious physical injury and that those acts- locking Nixzmary up and tying her to a chair-- does not expose her to serious physical injury. Judge DiMango said in a really mad tone of voice: if the child choked or couldn't breathe and needed to get out of the room- that could be a risk. Van Ness said: it's a small apartment. DiMango: aaaahhh, aaaahhhh! What does a child do then!? Van Ness said: disconnect here is that Nixzmary had the means in a small space. She had the means to communicate if she choked or something of that nature. Bruffee said that Nixzmary's mouth was duct taped and that could've interfered with her breathing and if she needed help she couldn't ask for it.
When Bruffee said that, that really threw me off guard, it disturbed me deeply. I always knew Nixzmary was duct taped to the chair, but I never knew her mouth was duct taped. That's something that you do to a prisoner! I know what they say their reasons were for tying her up, that they didn't want her to get up and bother the other kids, but why would they have to duct tape her mouth? Was she screaming, maybe asking to get out of the room? Asking to get out of the chair? Is that why they did it, so they wouldn't have to listen to her? I hope they're happy because now they'll never have to hear her again. Duct taping a child's mouth is just wicked and evil. It's malicious. She was literally being held prisoner, tied to a chair, duct taped so she couldn't scream out. It's really disturbing. It makes me mad just sitting here writing this. She's lying in a hole in the ground right now, decomposing, being eaten by insects. I hope they're happy because she'll never scream out again. She's silenced permanently. Sometimes, I wish somebody would do to them what they did to her.
Continuing with the hearing, Asst. D.A., Bruffee, then addressed the possession of a deadly weapon in the 4th degree - the floor- charge that Van Ness wanted dismissed. Bruffee said: Nixzaliz confessed to pushing Nixzmary to the floor. She possessed the floor as a dangerous instrument.
Bruffee addresses the Unlawful imprisonment in the 1st. degree charge: In the video she (Nixzaliz) said she agreed with the restraints because of Nixzmary's behavior.
Van Ness addressed the issue of some of the counts being duplicitus. She said: more than one criminal count in the same count is duplicitus. For the assault count, the time period is Nov.1st - Jan.11th (2005-6) Evidence shows numerous injuries inflicted on Nixzmary. Each of those acts is a separate assault. The trial evidence made that count duplicitus. Van Ness then cites cases. Judge DiMango asked if the case she just cited rose to a syndrome. Van Ness said that Nixzaliz isn't charged with child abuse syndrome, she's charged with inflicting injuries and using a dangerous instrument. DiMango: it's only relevant in context of a syndrome. Van Ness said: the count is based on discreet episodes. The injury has nothing to do with a syndrome. We run the risk of having a non-unanimous verdict. DiMango said that if the jurors convict her of a highter count, (murder) they'd stop deliberating and never reach that count.
Van Ness discussed the other assault count (there are 2 separate assault counts) that states that the defendant recklessly caused physical injury. Van Ness: only one serious physical injury, the one to the child's head. Serious physical injury has to lead to a grave risk of death. Judge DiMango said that the serious physical injury can also be a protracted disfigurement. DiMango pointed out that Dr. Wetli did say that had Nixzmary lived, there would have been a chance that the cut over her right eyebrow might have caused a permanent scar - that's protracted disfigurement.
Van Ness also argued in reference to manslaughter 1 that the law for manslaughter 1 says that the injury has to have CAUSED DEATH and the scar over the eyebrow did not cause Nixzmary's death. DiMango pointed out the scar as being protracted disfigurement, (protracted disfigurement is one of the elements of Manslaughter 1) but Van Ness argued that protracted disfigurement is an element but the actual written law for man.1 says the injury must cause death and the scar didn't. DiMango refused to dismiss manslaughter 1.
This could potentially be grounds for an appeal if Nixzaliz is convicted of Man.1 The defense could turn around and say she never should've been charged with it to begin with. That the injury the prosecution is alledging is the cut over the eyebrow and the law for Man 1 says the injury has to have caused the death and the cut didn't cause Nixzmary's death.
Van Ness also said that it is duplicitus for the weapons counts on the same theory.
Asst. D.A., Bruffee, said that she'd like to look at the Bowman case that Van Ness cited.
Bruffee also said that as long as all agree that dangerous intruments were used, it doesn't matter which instrument , the belt, the bungee cord etc. (the dangerous instruments that Nixzaliz is being charged with using in concert with Cesar are: the bungee cord- used to tie her foot to the chair, white twine- used to tie her doorknob to another doorknob so she couldn't escape and the twine was also used to tie the chair to the radiator. Nixzaliz is also being charged with using the floor as a deadly weapon because she pushed Nixzmary to the floor)
Ms. Bruffee then said that the M.E., Dr. Sampson, said that the subdural hematoma was the end result of a course of conduct: child abuse syndrome, and that the word duplicitus, that Van Ness used, is misleading.
Bruffee said two different acts of assault are charged and both should go to the jury. DiMango to Van Ness: the jury doesn't have to be unanimous. Van Ness said that there are discreet acts of assault that target the period. There are many instances where appellate divisions dismiss counts based on duplicitus.
DiMango then said that the prosecution must now isolate the particular incidents that they are charging. (before the prosecution were charging any act committed between Nov. 1st. 2005 - Jan. 11th. 2006. Now they must isolate a particular act)
Bruffee requested that DiMango read a charge to the jury saying they have to be unanimous and that the prosecution will decide which assaults. She also said that she'd like to read the case that Van Ness cited first.
DiMango's law secretary pulls the case.
It's 1:20 pm. and DiMango adjourns court for the day.
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