By: Dovesblood
On October 15th. 2008, the jury was charged in the murder trial of Nixzmary Brown's mother, Nixzaliz Santiago. The charge means instructions that the judge gives to them regarding the laws on murder, manslaughter etc.
Nixzmary's grandmother, Maria Gonzalez was in the courtroom. She was wearing a white headband, beige shirt and black pants. Gonzalez's spokesperson, Awilda Cordero was also there. Cordero showed up with a camera man named, Angelo. She's working on a documentary about Nixzmary. At Cesar's trial, she was also there with a camera crew for the documentary. Personally, I'm glad that she's doing a documentary and I don't care what the motives are. At least people years from now will have a tool (this documentary) in which they can learn about Nixzmary. I heard Cordero say, during Nixzaliz's trial, that the documentary is going to the Sundance Film Festival. I forgot what state she said it was in. I'm not sure if it gets released to the public after the film festival. When I first heard about the documentary, I have to admit that I raised an eyebrow but now, I'm in full support of it. The public needs tangible things that will help them to remember Nixzmary years from now. This documentary is one of them. Other things might be: a book, a law named after her (one that pertains to her life or that would've prevented her death, not sentencing laws that have nothing to do with her), her story mentioned in the media every now and then, something like a statue or part of a park named after her. Stuff like that.
The judge, Patricia DiMango was wearing a white dress with a pearl necklace and long earrings. I thought to myself when I saw DiMango in the pearl necklace that the lead D.A., Ama Dwimoh (ja-mo), is not going to appreciate DiMango wearing a pearl necklace because that's sort of Dwimoh's trademark. She always wears a white pearl necklace. Dwimoh came in wearing a black skirt suit. Asst. D.A., Anthea Bruffee, was wearing a midnight blue pant suit. Asst. D.A., Linda Weinman, was wearing a black pant suit. Defense attorney, Sammy Sanchez, was wearing a light gray suit. Defense attorney, Kathleen M. Mullin, was wearing an eggplant purple skirt suit. Defense appellate lawyer, Beverly Van Ness, was wearing a dark pink (fuscia top) and black pants. When Nixzmary's mother, Nixzaliz Santiago, came out, Sanchez patted her on the back. She was wearing a lavender sweather with a purple ring around the collar and sleeves and navy blue jeans. Her hair was tied in a bun with a lavender scrunchie.
Kathleen Mullin walked over to the second row to speak with Pablo Guzman, a reporter for WCBS channel 2 news in New York City.
At 10:35 am. the judge started the charge to the jury. The courtroom doors were not locked (thank goodness). DiMango had already said she wouldn't lock it even though most judges do and she'd instruct the guards to tell people to come in quietly. The guards ended up scotch taping a note at the hallway entrance of the courtroom door, written on white paper with a black magic marker, that said to be quiet, that the jury is being charged.
When DiMango was sitting on the bench, her robe was in her trademark, "off the shoulder" position. The judge likes to wear alot of fashion outfits and evening dresses. Usually, she'll come into the courtroom without her robe so everyone can see her outfit. Then after she puts the robe on, a few minutes later, one side of the robe will be down past her shoulder. (so one bare shoulder is showing) Then, a little while later, the other side of the robe will be down past her other shoulder, so now both bare shoulders are showing. It sort of looks like she's wearing a shoulderless dress, which she is, under the robe. Then, eventually, the robe will come off. Most of the time, she wears her robe in an "off the shoulder" way. Judge Judy, she is not. She's got one up on Judge Judy in that she's a law professor so DiMango knows her stuff in reference to the law.
Nixzaliz is being charged with:
1) Murder 2
2) Manslaughter 1
3) Manslaughter 2
4) Criminally Negligent Homicide
5) Assault 2
6) Assaut 2 (under a different subdivision)
7) Unlawful Imprisonment
8) Endangering the Welfare Of A Child
The charge started at 10:35 am. I'm not going to be using quotes because I didn't catch every single word but for the most part, what you'll be reading were DiMango's actual words. I'll be using a colon, ":" to indicate that she's speaking.
There are 8 charges against Nixzaliz. When DiMango is reading the jury the law, the JURY IS REQUIRED TO MEMORIZE ALL OF THE LAWS THAT DIMANGO IS SAYING. They're not allowed to have any paper in the jury room with them that tells them the definition of Murder 2, Manslaughter 1, Manslaughter 2 etc. Everything that DiMango will tell them, they're required to memorize. This can make the deliberations somewhat problematic because if they don't remember the law, they have to have the judge read it back to them as many times as they want so they can remember. When they're in the jury room, it basically AMOUNTS TO A GUESSING GAME as to what the law is because the majority of them are not going to remember everything the judge said.
DiMango started off telling the jury that if they need to send any notes, the foreperson (juror 1, Enel Etienne) would have to do it. Also the notes would have to be dated with the time.
She told them not to dwell on the autopsy photos to view them calmly and unemotionally without predjudice.
She explained to them about STIPULATIONS. (a stipulation is where both parties, prosecution and defense agree that if a witness were to testify they would have said such and such. This means the witness won't have to come in)
She explained about DIRECT EVIDENCE: evidence of fact based on the person's knowledge or observation of a fact.
: CIRCUMSTANTIAL EVIDENCE: direct evidence of fact which the person may reasonably infer.
(Then DiMango gave an example between direct and circumstantial evidence.) She said: if someone is walking in the rain, that's direct evidence that it's raining. If you saw people with an umbrella in the train, that would be circumstantial evidence that it's raining. Either way may be enough to establish guilt beyond a reasonable doubt.
:CIRCUMSTANTIAL EVIDENCE: what inference of guilt may be drawn from facts? Must be consistant with the proven facts, logical, reasonably drawn from facts.
:PRESUMPTION OF INNOCENCE: People must prove guilt beyond a reasonable doubt. Consider all evidence presented. THE DEFENDENT IS NOT REQUIRED TO PROVE SHE'S NOT GUILTY. People must prove every element of the crime. If the people fail to satisfy, you must find her not guilty.
:REASONABLE DOUBT: doesn't require proof beyond all possible doubt. It's an honest doubt of defendant's guilt for which reasonable doubt exists based on evidence. Proof beyond a reasonable doubt is guided by a full and fair evaluation of the evidence. Must not rest on baseless speculation. Not based on bias, sympathy, or just to bring an end to deliberations. The fact that the defendant did not testify is not a fact.....(?)
:CREDIBILITY OF WITNESSES: You decide whether the witness told the truth or testifies falsely. Quality of the testimony is controlling, not quantity. If you feel the witness was untruthful, you may dismiss their entire testimony or parts you found untruthful. Use personal experiences.
:GUIDELINES FOR EVALUATING CREDIBILITY:
1) did the witness have an oppurtunity to see or hear events?
2) Do they have the ability to recall events accurately?
3) Is their testimony plausible or likely to be true?
4) Is their testimony consistant or inconsistant?
5) The manner in which the witness testified upon truthfulness(?)
6) What extent their background or training effects their testimony?
7) Any bias or hostility in the testimony?
8) Motive to lie?
9) Whether statements are inconsistant with each other.
10) Facts they've omitted where it would have been reasonable to say the fact.
11) Contents of prior inconsistant statements are not proof of what happened.
12) Is what the witness testified to consistant with the testimony of other witnesses in the case?
(At this point, juror 9 , Brenda Bagot, started coughing uncontrollably and DiMango got her some water.)
:EXPERT WITNESSES: Dr. Sampson, Dr. Wetli, Taylor Dickerson. (the 2 Medical Examiners and the dna expert) Whereas scientific, medical or technical knowledge can help the jury understand, witnesses within a specialty field can render an opinion.....(?) quality and believability, facts upon which opinion is based, hypothetical fact or fact......., reason given for opinion, whether opinion.....(?)
:POLICE OFFICERS: Evaluate their testimony the same as you would any other witnesses.
:The law does not prevent the DA or the defense from speaking to witnesses before they testify.
:The law does prohibit witnesses from reading testimony beforehand.
:It's your recollection of the evidence, not the attorneys, that controls deliberatiions here.
:COMMISSION OF A CRIME REQUIRES 2 THINGS: PHYSICAL & MENTAL Physical are physical act that are criminal. Mental is a culpable mental state.
:Omission is: failure to perform an act in which the duty of performance is imposed by law or act of which the person is physically capable of performing. Parents have a duty to provide a child with adequate medical care. Failure can result in criminal charges. Failure of one parent does not excuse the other parent to act.
: HOW TO DETERMINE WHAT A PERSON'S CONSCIOUS OBJECTIVE WAS: Use common sense to see if the person harbored a past (?) state of mind, what did she do or not do?, how did she do it?, what was said during the act and after?, what were the results of actions?, This is how you determine the state of mind.
DiMango then gave them the definition of accessorial liability, which is "acting in concert". EVERY charge against Nixzaliz requires that she be acting in concert, that is, have the same state of mind, with Cesar, in order to find her guilty
:ACCESSORIAL LIABILITY: Where two or more individuals can act jointly to commit a crime. Acting in concert is when one person is criminally liable for the conduct of another. When one person commits a crime, another person is acting with the mental culpability. HE OR SHE ILLICITS, REQUESTS OR COMMANDS A PERSON TO ENGAGE IN CONDUCT.
(this is problematic for the prosecution because the defense is saying that all Nixzaliz said was to go ask Nixzmary about the printer. She never said to go beat her to death and twice that night, in bedroom then bathroom, Nixzaliz told Cesar to stop hitting Nixzmary. The defense is saying his state of mind was to hit Nixzmary and Nixzaliz's state of mind was telling him to stop. That's two separate states of mind so the defense is saying she was not acting in concert)
:The mere presence at the scene of a crime does not make you liable. They goad, solicit, request or command a person to engage in conduct with the state of mind required to commit a crime. In order to find the defendant guilty, you need not be unanimous on acting in concert. (this was strange to me. I always thought all the jurors were required to be unanimous)
Then DiMango moves on to explaining the law on the 8 charges, starting with Murder 2
:
MURDER IN THE 2nd DEGREE:
Under circumstances illiciting a depraved indifference to human life, the defendant being 18 years of more, did recklessly engage in conduct which created a grave risk of serious physical injury or death to a person less than 11 years old and thereby causes death.(DiMango then defined three of the terms used in the Murder 2 charge: serious physical injury, recklessly engages in conduct and depraved indifference)
:SERIOUS PHYSICAL INJURY: (definition) impairment of a person's physical condition which creates a substantial risk of death or causes death, protracted disfigurement, protracted health, protracted loss or impairment of functions of the body's organs.
:RECLESSLY ENGAGES IN CONDUCT: (definition) create a grave and unjustifiable risk that serious physical injury or death will occur and when you're aware of and consciously disregard the risk to such a nature and degree that disregard of the risk is not what a reasonable person would do......To constitute the crime: evidence must show that the defendant acted under circumstances evincing a depraved indifferance to human life.....(?)
:DEPRAVED INDIFFERENCE: refers to a state of mind which creates a grave risk of death, when there's utter disregard for the value of human life. Doesn't care whether harm will result. Wicked, evil, inhuman state of mind manifested by brutal, heinious and dispecable acts. Conduct is wanton and devoid of regard for life of others.
:IN ORDER TO PROVE MURDER 2, THE PEOPLE MUST PROVE 4 ELEMENTS:
:1) That between Nov.1st. 2005 to Jan. 11th. 2006 Nixzaliz Santiago, while acting in concert with Cesar Rodriguez, caused the death of Nixzmary Brown, a person less than 11 years of age.
:2) She did so recklessly engage in conduct which created a grave risk of serious physical injury or death.
:3) Had a depraved indifference to human life.
:4) Defendant was 18 years older or more.
: The people must prove each element.
:
MANSLAUGHTER 1st. degree:
Being 18 years or more, with the intent to cause physical injury to a person less than 11, recklessly engages in conduct which creates a grave risk of serious physical injury causing death.(then DiMango read back the definition of serious physical injury)
:DEFINITION OF INTENT: when conscious objective or purpose is to cause physical injury to a person less than 11 years of age. When you're aware of and consciously disregard that risk.
:TO CONVICT ON MANSLAUGHTER 1, PEOPLE REQUIRED TO PROVE 4 ELEMENTS:
:1) Between Nov.1st. 2005 to Jan.11th 2006, Nixzaliz Santiago, acting in concert with Cesar Rodriguez, caused the death of a person less than 11 years of age.
:2) Did so recklessly engage in conduct which created a grave risk of serious physical injury.
:3) Acted with intent to cause serious physical injury.
:4) Defendant was 18 years older or more.
:
MANSLAUGHTER 2nd. degree:
Recklessly cause the death of another person.:Recklessly has it's own special meaning: when you engage in conduct which creates or contributes to a substantial or unjustifiable risk and when disregard of that risk constitutes a gross deviant from the standard of conduct that a reasonable person would apply in the situation.
:TO CONVICT ON MANSLAUGHTER 2, PEOPLE ARE REQUIRED TO PROVE 2 ELEMENTS:
:1) Between Nov 1st. 2005 to Jan. 11th. 2006, Nixzaliz Santiago, while acting in concert with Cesar Rodriguez caused the death of Nixzmary Brown.
:2) That she did so recklessly.
(DiMango now explains the difference between murder and manslaughter): Murder requires a heightened degree of recklessness and murder has an intentional element of depraved indifferance. Manslaughter only carries a substantial risk. Murder carries a grave risk.
:
CRIMINALLY NEGLIGENT HOMICIDE:
When someone with criminal negligence causes the death of another person.:Criminal Negligence is when: a person engages in conduct which creates or contributes to a substantial risk or unjustifiable risk that another person's death will occur. Failure to perceive the risk that a reasonable person would observe.
:TO CONVICT ON CRIMINALLY NEGLIGENT HOMICIDE, PEOPLE REQUIRED TO PROVE 2 ELEMENTS:
:1) That between Nov.1st. 2005 to Jan. 11th. 2006, Nixzaliz Santiago, while acting in concert with Cesar Rodriguez, caused the death of Nixzmary Brown.
:2) She did so with criminal negligence.
:
ASSAULT 2nd degree:
Intent to cause physical injury. They cause injury to a person by means of a dangerous instrument.(DiMango then proceeds to define three terms used within the assault charge: physical injury, intent, and dangerous intrument)
:Physical injury: impairment of physical condition which causes substantial pain.
:Intent: conscious objective or purpose.
:Dangerous instrument: any instrument used under circumstances in which it was used or threatened to be used or causes protracted disfigurement, health, or impairment of fuction of a body's organs. Death of physical injury need not occur.
:TO PROVE ASSAULT, PEOPLE ARE REQUIRED TO PROVE 2 ELEMENTS:
:1) Between Nov.1st. 2005 to Jan.11th. 2006 Nixzaliz Santiago, while acting in concert with Cesar Rodriguez, caused physical injury with a dangerous instrument, namely, a bungee cord and white twine.
:2)Did so with intent to cause injury, (cut on the ankle)
(there are 2 assault charges both under different subdivisions. Here's the second assault charge)
ASSAULT 2nd degree:
Person being 18 or more with the intent to cause physical injury to a person less than 11, causes physical injury.TO PROVE ASSAULT, THE PEOPLE MUST PROVE 3 ELEMENTS:
:1) Between Nov.1st. 2005 to Jan.11th. 2006, Nixzaliz Santiago, while acting in concert with Cesar Rodriguez, recklessly caused serious physical injury to Nixzmary Brown, a person less than 11 years old. Namely: stitched injury to the forehead and black eye.
:2) That they intended to cause physical injury.
:3) Defendant was 18 years or more.
:
UNLAWFUL IMPRISONMENT 1st degree:
When you restrain a person under circumstances which exposes them to serious physical injury.:TO RESTRAIN: to restrict a person's movement where it's unlawful and it interfere's with their liberty. They're moved without consent and without knowledge(?) the restraint is unlawful. Where your conscious objective or purpose is to restrict a person's movement. Person restraining other.....(?) aware of restraints not authorized by law.....(?) by physical force.
:TO PROVE UNLAWFUL IMPRISONMENT, THE PEOPLE ARE REQUIRED TO PROVE 5 ELEMENTS:
:1) Between Nov.1st. 2005 - Jan.11th. 2006, Nixzaliz Santiago, while acting in concert with Cesar Rodriguez, restrained Nixzmary Brown in such a way that interfered with her liberty.
:2) That they did so without her consent.
:3) did so intentionally
:4) that the restriction of movement was unlawful.
:5) restrained Nixzmary Brown under circumstances which exposed her to a grave risk of serious physical injury.
:
ENDANGERING THE WELFARE OF A CHILD:
Knowingly act in a manner that's likely to be injurous to the physical, mental or moral state of a child less than 17.:Term: Knowingly act in a manner and be aware that acting in such a manner affects the physical, mental or moral welfare of a child.
:TO PROVE ENDANGERING THE WELFARE OF A CHILD, THE PEOPLE MUST PROVE 3 ELEMENTS:
:1) Between Nov.1st. 2005 to Jan.11th. 2006, Nixzaliz Santiago, while acting in concert with Cesar Rodriguez, acted in a manner that affected physical, mental or moral welfare of a child.
:2) they did so knowingly.
:3) Done to Nixzmary Brown who was less than 17.
Then Judge DiMango contd: You should not surrender your honestly held view because you want the trial to end and you were out voted.
:You may see all the exhibits and have testimony read back to you.
DiMango told them she'd give them a verdict sheet and to check off the boxes (for murder there's a box that says guily, not guilty)
She contd: Homicide counts, pay attention to the instructions below each count before you proceed to the next count.
:The foreperson's opinion or vote is not more important than the other jurors. The foreperson must sign the notes.
At this point, DiMango takes the lawyers out in the hallway behind her bench, for a talk.
DiMango came back and said to the jury what the difference is between motive and intent.
:INTENT: when your conscious intent is to bring about an act.
:MOTIVE: ...(?) not element on why crime is committed......(?)
After the jury left the room, the defense lawyer, Kathleen Mullin, stood up and thanked the judge for her "fair service and graciousness" and repeated that she wants to thank her for that. (obviously a blatant attempt to kiss ass) Then the lead D.A., Ama Dwimoh, not wanting to be out done by Kathleen Mullin, got up and said, "the people join in that application". A reporter in the first row started clapping. Then out of nowhere, THE WHOLE COURTROOM AUDIENCE STARTED CLAPPING FOR THE JUDGE! It was surreal! DiMango was just sitting on the bench, lapping up all of the applause. Probably the highlight of her career.
Personally, I thought all the clapping was a little to much. Most of the people clapping over DiMango's "fairness" were reporters and people who weren't even there for the whole trial! How the hell would they know if she was fair or not? I've been attending Nixzaliz's trial from the very first pretrial hearing to the last one (6 months worth and only missed one hearing) and I attended this murder trial everyday. I'm in a perfect position to know whether or not she was fair. Truth be told, DiMango may be a completely nice human being away from the courtroom but her actions in this trial were'nt exactly fair to both parties. That's the truth.
After the jury left to go deliberate, the people in the room were just sitting around chit chatting and waiting for the jury to come back with a verdict.
One of the spectators in the room, Sabrina, was carrying a poster board with a photo of a mother gorilla mourning it's dead child. The words written on it were, "how come humans aren't like this"? Sabrina was sitting in the 3rd row talking to two other spectators. A little old black lady named, Lena, who goes to all of the high profile trials and another woman named Jamila. She's black, got blonde hair and created a dvd of candlelight vigils outside of Nixzmary's apartment after she died. The women were sitting in the gallery talking to one another.
At one point, Judge DiMango,...well,.... how do I put this?.... she was "working the room", sort of like at a cocktail party. Like I said, everyone was just sitting around talking, waiting for the jury to come back. DiMango approached the first row and started talking to the reporters and the sketch artist, Christine Cornell. Then the judge actually stepped into the spectator gallery and went around talking to all of the spectators, kind of working the room. When she got up to Sabrina who was sitting in the 3rd row, she said, "ladies". Everyone said hi to her. DiMango spotted the gigantic cardboard poster that Sabrina had that was propped up against the bench in front of her. It was folded in three halves so DiMango couldn't see what was on it. DiMango asked her if it had anything to do with the trial and Sabrina said, no. Afterwards, DiMango walked over to the other side of the spectator gallery to the right of the room, to talk to the other people. The sargent in the room was an Irish guy, 50ish, pink complexion with white hair that was slicked back. He was pleasant, unlike the other gung-ho black one before him who was always arguing with reporters and people in the room, trying to make himself feel important. Anyway, the sargent told Sabrina that at lunch time, she would have to leave the poster board downstairs at the desk. DiMango probably tipped him off. I guess she didn't want anything being waived in front of the jury, causing a mistrial. It had to have been her who told him because he saw the poster board previously and never said anything. Her cocktail party skill of "working the room" paid off. She caught something before it happened.
Court was recessed for lunch.
After everyone returned from lunch, people were basically just waiting around for the jury to come back with a verdict.
Judge DiMango conferenced at the defense table with all of the lawyers. They were going through photos at the table.
The judge informed everyone that the jury had sent a note to the court. The note was dated Oct.15th. and the time on it was 12:06 pm. In the note, the jury was requesting to see the police video tape of Nixzaliz at the precinct, the 911 audio tape, and the transcript. The judge said everything was played in the presence of the sargent.
A second note came in from the jury. The time on the note was 2:26 pm. The jury was requesting to see photos of Nixzmary's back, buttocks, legs, Target receipts, Nixzaliz and Cesar's pictures, showing the front of their clothing. Exhibits: 20, 59, 21, 58, 56, 57, 18, 63, and 53. Lead D.A. Ama Dwimoh asked that when the jury said video tape, did they mean the precinct interview? Then she asked: what about the oral and written statements? The defense lawyer, Kathleen Mullin said that the jury probably meant all of the photos and she wanted additional photos of Cesar given to the jury that don't show the front of his clothing. When Mullin said that, Judge DiMango got mad. DiMango said, "you want me to interpret ALL photos to be ALL photos of Nixzmary as well"!!??? Mullin said, "my request was not meant to be flippant". DiMango: you have an exception.
At 4:35 pm, Nixzaliz was brought back into the courtroom because there was a third note from the jury. The jury was requesting the components of the first four charges in writing (Murder 2, Manslaughter 1, Manslaughter 2 and Criminally Negligent Homicide) The jury was brought back in. DiMango reads back the first 2 notes from them and asked them if they were satisfied with the responses to the notes. DiMango told them that they weren't allowed to have the written law in the room with them and she would have to read the law to them. The faces on the jury did not look to pleased when they found out that they wouldn't be getting the law in writing and would have to memorize what she was saying. DiMango read back to them the law for Murder 2, Man 1 and 2 and Criminally Negligent Homicide.
This whole situation is really problematic in that the jury is basically forced into playing a guessing game on what the law is if they can't remember what the Judge's definition of the law is. Not only do they have to memorize the definition of the laws but they also have to memorize all the elements needed to find the defendant guilty of each count. Like I said, it's a guessing game.
After DiMango finished reading them all the definitions, you could see the bewildered, confused and shocked look on their faces when they realized they weren't getting the law in writing. Especially juror 2, Jaleda Yates, she especially looked shocked when she was leaving the jury box.
After the jury left the room, the defense attorney, Sammy Sanchez, sat in the first row, middle bench, and was posing for a picture! The courtroom sketch artist, Christine Cornell, was sitting in the first row and she was sketching Sanchez as he as sitting there looking at her and smiling. It was surreal. And I thought DiMango was vain! He could give her a run for her money, sitting there posing and smiling!
At 5:40 pm the jury was brough back in and the judge told them that she's sending them home for the day. She gave them a number of instructions before they left: She said they're only allowed to deliberate in the jury room. (they can't do so at home) Do not converse with anyone about the case. Don't accept bribes and to come to her immediately if anyone tries to bribe them. To promptly report if anyone is trying to influence their vote. Not to go to the scene of the crime or any of the places involved. Not to read, view or listen to any television, newspaper or radio interviews. Not to research any facts or issues about the law. After that the jury left. Court ended for the day.
Some personal thoughts. If anyone thinks that this jury is not going to go home and research this case, then they are living in La-La Land! If the jury was secluded, then that would be a different matter but these people I'm sure are going to go into the privacy of their own homes, get on their computers and start typing into their search engines. Do you even have to guess what name their going to be typing in? I'll give you a hint: it starts with an "N" and ends with a "Y". These jurors are probably going to go home, pick up a newspaper to see how the sketch artist is drawing them and read any and everything they could possibly find on Nixzmary Brown. Face it. If all of them don't, then at least some of them will. That's reality.
I'm wondering if the defense will bring up, on appeal, that the prosecution charged Nixzaliz with causing the injury to Nixzmary's forehead, mid-way into the trial. When the trial first started, the prosecution wasn't alledging that Nixzaliz is the one who caused that injury.
In reference to the forehead injury, I'm wondering why the defense didn't subpoena Nixzmary's little sister, Selena Brown, to testify that she saw Cesar give Nixzmary that injury. Here's the background. In Dec. 2005 when ACS came to the school to investigate the gash over Nixzmary's right eyebrow, they asked Nixzmary's little sister, Selena, how Nixzmary got the cut over her eye. Selena pointed to a window frame and said, "Cesar did it". Now if the defense knows this, and they do, why didn't they call the little girl to the stand? It means vindicating their client so I'm wondering why that was never done. That seems like a mistake on their part.
Speaking of calling kids to the stand, there were reports that Nixzmary's older brother, Javier Batista, told a City social worker that his mother tried to stop Cesar's attack on Nixzmary. Again, I'm wondering why Javier was not subpoened to testify by the defense. Both him and Selena could've bolstered the defense's case but yet the lawyers choose not to call them. During Nixzaliz's pre-trials, two counts against her were dropped because the prosecution didn't want to force Javier into testifying. His biological father said it would be detrimental for him to testify against his own mother. The D.A., rather than forcing Javier to testify, decided to give in and drop the charges so he wouldn't have to come in. Personally, I think Ama Dwimoh needs to stop playing child psychiatrist, worried about the kids mental health, and be a prosecutor and prosecute the case. Prosecuting sometimes means forcing kids to testify. If we worried about every child's feelings, all the criminals would still be walking the streets!
There's also some potential problems with the Manslaughter 1 charge. The definition of Man. 1 is that the SERIOUS PHYSICAL INJURY MUST HAVE CAUSED THE DEATH. The injury that the prosecution is alledging for this charge is the gash over Nixzmary's eye. The defense's appellate lawyer, Beverly Van Ness, has already said to the judge that the injury over Nixzmary's eye did NOT cause her death. She died from a subdural hematoma (bleeding on the brain, caused by a blow to the head) not from an injury over her eye. The defense is saying that because Nixzmary didn't die from the injury the prosecution is alledging, the gash to the eye, the Manslaughter 1 charge is incorrect. She should have never been legally charged with it in the first place.
In reference to the Man. 1 charge, the prosecution contends that Nixzmary died from, "Child Abuse Syndrome" and that the gash over her eye was A PART of the child abuse syndrome, so the Man. 1 charge is correct.
The defense claims that despite the fact that the Medical Examiner put Child Abuse Syndrome on Nixzmary's death certificate, that she DID NOT die from Child Abuse Syndrome. The defense claims she died from a blow to the head, that absent that blow on Jan.10th., she'd still be alive today. They're claiming that you can only put Child Abuse Syndrome on a death certificate if no clear cause of death can be determined. In Nixzmary's case, there is a clear cause of death- the blow to the head. They contend that while she WAS an abused child, she did not die from Child Abuse Sydrome.
I'm also wondering about the legality of charging more than one crime under the same assault charge. The second assault charge, is citing the "stitched injury to the forehead" AND the "black eyes". The judge previously ruled that the prosecution can't charge assault for a specific time period. That they have to specify which assault incident they're charging. Both the injury to the forehead and the black eyes happened on different days. (Unless the prosecution is claiming that when Nixzaliz punched Nixzmary, that gave her the forehead injury??) If the injuries took place on different days then shouldn't the prosecution have had a separate assault charge for the forehead injury, and a separate assault charge for the black eye? I'm not a lawyer, so I don't know, but that's what comes to mind.
In reference to the Unlawful Imprisonment charge, the 4th element states that the restriction of the movement has to be "unlawful". The problem I see is that the judge never defined for the jury what restriction of movements are LAWFUL and what restrictions of movements are UNLAWFUL. How is the jury suppose to know what restrictions are lawful from unlawful? For ex. is grounding your child unlawful since that's a restiction of movement? It was never explained what constitutes unlawful restriction. For the record, I do think Nixzaliz is guilty of Unlawful Imprisonment but I'm pointing this out to address the legality of how the charge was read.
In reference to the Endangering The Welfare Of A Child charge: the definition is that the defendant ACTED IN A MANNER that interferes with the physical, mental and moral welfare of a child. Now, Nixzaliz is definately guilty of this but legally speaking, the judge never indicated WHAT MANNER Nixzaliz acted in. We can pretty much guess it would be binding her to a chair, starving her etc. but legally, shouldn't the exact MANNER be specified? The defense can turn around and say, since the MANNER was never specified, for all the jury knows it could've been, for ex., preventing her from watching tv., which doesn't constitute endangering. Again, she's definately guilty of this crime but from the way that the charge was read, it's leaving loopholes open for the defense.
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