Comments on: The Anthony Graves Retrial Pregame Show

By: Anthony Graves, once condemned, relishes newfound freedom | Fountain's Pen

Anthony Graves, once condemned, relishes newfound freedom | Fountain's Pen — Sun, 08 Jan 2012 00:53:54 +0000

[…] Houston defense attorney Mark Bennett, author of the blog “Defending People,” writes about the Graves case here and here. […]

By: Anthony Graves and his “angel” recount fight for freedom | Fountain's Pen

Thu, 29 Dec 2011 04:12:13 +0000

[…] Houston defense attorney Mark Bennett, author of the blog “Defending People,” writes about the Graves case here and here. […]

By: Thomas Torlincasi

Thomas Torlincasi — Tue, 16 Feb 2010 22:07:02 +0000

The Carter Testimony/Transcripts have already been ruled by the Judge as Admissable. Its all the evidence in the case, Unless the newest ADA, Seigler, wants to play with the “Dog scent evidence”….

There is NO case whatsoever, if Carter’s Past testimony is excluded. They will try the case on this alone. The objective of the state being to delay Mr. Graves’ release through screw process.

The appeal of the transcript admissablity can’t take place unitll after a fresh conviction, right?

By: Mark Bennett

Mark Bennett — Mon, 15 Feb 2010 02:26:25 +0000

In reply to Gideon. Rule 106.

By: Gideon

Gideon — Mon, 15 Feb 2010 02:20:39 +0000

In reply to Tom Moran. The Rule of Optional Completeness?

By: Tom Moran

Tom Moran — Sun, 14 Feb 2010 06:08:17 +0000

If his prior testimony comes in, then under the Rule of Optional Completeness, all other statements on the same subject come in as substantive evidence. And that rule trumps the hearsay rule.
The other statements also would be admissible under Rule 806 for impeachment only.
I don’t know if it’s not to his advantage to have Kelly get the prior testimony in. And, under John Hardie Rogers v. State, Katherine can object, then introduce other evidence to rebut or challenge the evidence without waiving error.

By: Mike Trent

Mike Trent — Sun, 14 Feb 2010 03:36:24 +0000

If Carter’s statements are admitted under a hearsay exception, then they can be impeached as if they were live testimony. See Rule 806, an oft-overlooked but incredibly useful tool.

By: Jackie Carpenter

Jackie Carpenter — Sat, 13 Feb 2010 08:58:20 +0000

That makes for an excellent hypothetical for law students and lawyers alike. I don’t think the original testimony should come in at all. If the State needed this witness, he would still be alive awaiting testimony. Because his testimony does not assist their conviction rate, they let him die despite the fact an innocent man may very well be locked up. This mentality of winning at all costs benefits no one and needs to be changed.

By: Mark Bennett

Mark Bennett — Fri, 12 Feb 2010 20:53:17 +0000

In reply to Gideon. The more of the post-trial statements the judge keeps out, the more thoroughly the Fifth Circuit is going to thrash her when the writ hits.

By: Gideon

Gideon — Fri, 12 Feb 2010 20:23:54 +0000

Those certainly are some very interesting legal issues. I think the fact that the State executed the witness, thereby securing his unavailability add a nice wrinkle to the case.

In the end, I agree with your assessment (shocker). Perhaps the two claims can be intertwined: a) The State should not be permitted to offer the testimony of Carter because he cannot be cross-examined on the Brady material and b) IF that testimony is permitted (over vigorous objection by counsel), then his dying declaration should ALSO be admitted, be it as a proper application of the hearsay exception, or in the interest of justice.

Finally, this is a very interesting post and I shall bookmark it for later use.