6

MR. BARKET:

So what?

THE COURT:

I'm sorry.

MR. BARKET:

again.

5
6

THE COURT:

Mr. Barket, let's please proceed,

okay?

MR. BARKET:

MS. ALDEA:

It happens over and over and over

God.
Your Honor, at the conclusion of the

People's case the defense is going to move for a trial

10

order of dismissal.

11

dismissal on the grounds that the People's case is not

12

legally sufficient to establish the elements of murder in

13

the second degree.

14

offenses charged, both that Cal killed Michele, and that

15

he did so intentionally.

16

failed to prove either of those elements.

17

We're moving for a trial order of

And that's both elements of the

We think that the People have

First, the People failed to establish that Cal

18

actually killed Michele.

Of course there's no direct

19

evidence of this.

20

circumstantial evidence and of course can also prove that

21

a murder occurred or that a homicide occurred without

22

having a body, the circumstantial evidence has to be

23

legally competent to prove this without requiring the jury

24

to make impermissible inferences that are drawn from the

25

equivocal evidence.

And while the People can rely on

1
2

The Court of Appeals has instructed in numerous

cases --

THE COURT:

Sorry to interrupt you, but do you

think we should let the jurors go?

while?

Are you going to be a

MS. ALDEA:

particularly long, your Honor.

my argument should be concluded probably in about 15,

20 minutes.

10

I don't think it's going to be

So I'm anticipating that

I don't know how long the prosecution's will

be.

11

THE COURT:

Well, it might make more sense to

12

let the jurors go for lunch and then we can take a shorter

13

lunch.

14

MS. ALDEA:

15

MR. BARKET:

Okay, that's fine.

Here's the problem with that,

16

Judge, is that now they think it's because I don't have

17

something that I was supposed to have now.

18

they're going to say.

19

THE COURT:

That's what

Well, I'll instruct them that there

20

are being motions made after the People have closed their

21

case.

22

happy to do that.

23

Do you want me to say something specific?

MR. BARKET:

I'm

Yes, I think you should tell the

24

jury that the defense has no obligation to produce any

25

material to the prosecution until after some legal

arguments are had at the conclusion of the People's case,

and that you are going to let them go for lunch, we will

do the legal arguments and they can come back in the

afternoon.

5
6

MR. MARTIN:

I'm not sure that's what the

statute says, Judge.

MR. BARKET:

Well, I don't care what the statute

says because given what the judge just did there needs to

be a cure for that.

10

THE COURT:

Well, I'll say that.

I don't

11

necessarily think there needs to be a cure for anything,

12

but it may solve that.

13

Mr. Barket, please stop the stage whispers.

We'll bring the jurors back.

14

MR. BARKET:

The what?

15

THE COURT:

16

MR. BARKET:

17

want to know what I was saying?

18

with the Court.

Stage whispers.
They're not stage, Judge.

Do you

I'll be happy to share it

I was just talking to Ms. Aldea.

19

THE COURT:

Happy to -- well, don't say it now.

20

(The jury entered the courtroom.)

21

THE COURT:

You can all have a seat.

What I'm

22

going to do is -- I know you haven't done much today, but

23

I'm going to have you break for lunch and come back at

24

one.

25

some motions.

Once the People have formally rested I have to hear

And also I'll tell you I kind of jumped the

gun to ask the defense to produce any materials.

don't have an obligation to do that until after I've heard

all the arguments if indeed then they even have to.

just if you can ignore that I asked them to produce

anything.

couldn't get everything done on Monday.

rested and then as I say there's formal legal things that

have to be done.

o'clock so we can then proceed.

10
11

And the People

Hopefully we'll get those done by one

So I will remind you of all your admonitions and

hopefully I'll see you back here at one.

Thank you.

(The jury exited the courtroom.)

13

MR. BARKET:

14

THE COURT:

You're welcome.

MS. ALDEA:

That's okay, no problem.

16

So

And it's no one's fault, I'm sorry that we

12

15

They

Thank you, Judge.

Sorry to interrupt

you.
So while

17

circumstantial evidence is competent to prove a case,

18

obviously what is required is that the circumstantial

19

evidence be competent to prove this without requiring the

20

jury to make impermissible inferences drawn from the

21

applicable evidence.

22

The Court of Appeals has cautioned this on

23

several occasions in several cases.

The Courts

24

specifically said that close judicial supervision in jury

25

verdicts based solely upon circumstantial evidence is

10

necessary to ensure that the jury does not make inferences

which are based not on the evidence presented but rather

on unsupported assumptions drawn from evidence equivocal

at best.

legal sufficiency under the same standards that this Court

will apply in the trial order of dismissal.

And that's in People versus Kennedy in reviewing

Similarly, the Court of Appeals in People versus

Cleague has stated that the Court should be mindful that,

quote, the danger with the use of circumstantial evidence

10

is that of logical gaps.

11

links based on probabilities of low grade or insufficient

12

degree, which if undetected, elevate coincidence and

13

therefore suspicion into permissible inference.

14

That is, subjective inferential

This Court's function as the gatekeeper in

15

determining this trial order of dismissal motion is to

16

ensure that the People's proof is actually based on

17

competent evidence and does not require the jury to make

18

those inferential leaps that the Court of Appeals has

19

prohibited.

20

So, in this case in applying that to the first

21

element of the crime of murder in the second degree, there

22

is in this case, first of all, no proof that Michele came

23

home after she went to Brian Earley's house on the evening

24

of September 11th.

25

this Court's review because while of course the Court

And this case is somewhat unique in

11

wouldn't be bound by any decision that is made in a prior

case even by the Appellate Division.

on evidence that came out at the prior trial, which was

actually a lot stronger than the evidence that has been

presented in this case, there was at least -- well, there

was one judge in the Appellate Division who found that the

evidence was legally insufficient to sustain a conviction,

and there was also a judge in the Court of Appeals who

found the same.

This is a case where

10

But what I think is instructed in the Appellate

11

Division's majority decision from the prior trial is that

12

the Court sets forth why it believes that the

13

circumstantial case there was legally sufficient or met

14

that standard even though it met it by not a lot in that

15

first trial.

16

elicited in that first trial and some of what the

17

Appellate Division relied on to the evidence that came out

18

here.

19

And so I'm going to compare some of what was

The first thing is that, as I said, in this

20

trial there was no proof that Michele even came home after

21

she left Brian Earley's house and there's certainly no

22

proof that she set foot into the Harris home at any point

23

on the night of September 11th.

24

testified that Michele went home, and the Appellate

25

Division majority relied on that in its decision to

In the prior trial Earley

12

establish that Michele was in fact there.

In this case that testimony did not come out.

In fact, Brian Earley in this trial was prohibited from

testifying that she came home because he recognized that

that was based solely on his suspicion or on his surmise,

it was not based on his observation or anything that he

knew, and so it was inadmissible.

proof that the People relied on before to even establish

the fact that she was there, which was essential to their

So that link, that

10

circumstantial theory of opportunity, is missing in the

11

case that has been presented at this trial.

12

Additionally, although Michele's van was at the

13

bottom of the driveway, there have been numerous witnesses

14

that have testified before this Court, People's witnesses,

15

that have said that Michele's van was parked there on

16

other occasions at other times.

17

for Michele to leave her van and to go out elsewhere.

18

So it was not uncommon

Nikki Burdick in fact testified that while she

19

didn't have Michele's van -- she didn't see Michele's van

20

parked at the bottom of Michele's driveway, Michele would

21

leave her van to go out drinking or to go out with other

22

people in parking lots, in the parking lot at Lefty's, and

23

they would go together.

24
25

And so the presence of Michele's van at the

bottom of the driveway cannot, without that impermissible

13

inferential leap, establish that Michele actually went

home.

opportunity is completely lacking in this case.

first element that the People would rely on in the

circumstantial case to prove that a crime actually

occurred is absent.

Without that evidence, the People's proof of

So that

The second element is that there's no proof that

there was any crime at all that was committed in the

house.

The People tried to paint the house as a crime

10

scene by relying on the minute quantity of blood that was

11

there.

12

inconsistent with a murder scene.

13

testimony at this trial that has established otherwise;

14

that has established that it would be consistent or that

15

it would be something that would be suggestive that there

16

was in fact a murder scene there.

17

But the minute quantity of blood in that house is

And there is no

This Court, like the jury, does not have to

18

abandon all common sense in the evaluation of the trial

19

order of dismissal.

20

accurate that there was a murder that occurred in that

21

house, it simply does not make sense, it defies logic and

22

common sense that there would be a total of less than an

23

eighth of a teaspoon of blood total at that scene.

24
25

And so for the People's theory to be

Additionally, what the People's expert did

testify to is that it would be also, including the blood

14

spatter that was found, would be equally consistent with a

cut hand.

Michele had a cut hand.

In fact, Dr. Lee even at this trial said that there would

be no proof of that, that there was no evidence that ever

happened.

In the prior trial there was no testimony that

There was no evidence of that.

In this trial for the first time there was

evidence that there was a cut hand.

Appellate Division specifically found in its decision that

10

it was most significant that there were -- let me actually

11

find it, sorry.

12

decision, I'll quote, particularly given the lack of any

13

plausible explanation for the victim's recently spattered

14

blood found in the home, a valid line of reasoning and

15

permissible inferences could lead a rational person to the

16

conclusion of guilty on the basis of the evidence at

17

trial.

18

And in fact, the

The Appellate Division found in its

Again, particularly given the lack of any

19

plausible explanation for the victim's blood.

In this

20

trial, unlike in the prior one, we have a plausible

21

explanation for the victim's blood.

22

she cut her hand and she cut her hand in the driveway of

23

the family home close to where the blood was in fact

24

found, where she would enter the home through the garage

25

and through the foyer area.

We have the fact that

15

Moreover, there is no proof in this trial that

the blood was actually Michele's.

In this regard there

was testimony that there was animal blood in the area that

the blood was found in the garage.

that there was no species test that was done on most of

the blood for human blood.

there was no testing done, although it could have been

available, to determine whether the DNA in fact came from

the blood or whether the DNA had been posited there by

There was testimony

And there was testimony that

10

some other means, which would include skin cells, mucus.

11

There were no amylase tests done on this blood to

12

ensure -- on the DNA or the blood for that matter,

13

contrary to the recommendation of Henry Lee of the

14

People's experts.

15

And so in this case the Appellate Division's

16

conclusion from the prior trial that there was evidence

17

that Michele's blood was actually there does not exist.

18

That evidence is simply missing from this trial.

19

the contrary, has come out that the fact that there was

20

blood that may or may not have been human blood, and the

21

fact that there was DNA that may or may not have come from

22

the blood again presents one of those logical gaps in the

23

evidence that the People simply have not filled through

24

their direct case in this trial and that the jury is

25

simply not allowed to make that kind of inferential leap.

And to

16

And so for that reason as well the People have failed to

prove that anything happened in the house.

Additionally, the Appellate Division's decision

on sufficiency found it, quote, most significant that,

quote, hundreds of recent stains had been caused by the

spattering of her blood.

Again, not only is there no proof in this trial that it

was in fact Michele's blood -- and that evidence did come

out differently here than it had before.

Referring to Michele's blood.

But moreover,

10

there was in this trial, thanks to this Court's prominent

11

ruling on this matter, no proof of the recency.

12

The Appellate Division's decision hinged on the

13

recency.

14

decision.

15

hundreds of recent stains.

16

not establish the age of the blood because there is no way

17

that that can be scientifically documented or determined.

18

It mentioned that numerous times in the majority

The victim's recently spattered blood.

The

In this trial the People could

And frankly, your Honor, when you read the

19

majority opinion, without the recency element the

20

Appellate Division would not have concluded that there was

21

a valid line of reasoning and permissible inferences as

22

opposed to impermissible ones that could lead a rational

23

person to the conclusion that in fact there had been a

24

crime that had been committed there.

25

with the cut hand that would be a plausible explanation

When that's coupled

17

for the blood, there is simply no proof of a crime scene.

Finally -- or actually not finally, but I guess

finally on the point of opportunity, it's established that

opportunity like motive can not fill the gap in proof.

Opportunity like motive is a form of evidence that is

weak, that is obviously circumstantial, and that is not

necessary and does not establish and cannot be used to

establish any element of the crime.

The Appellate Division found proof that Michele

10

left Earley's house at 11 o'clock to go to the family

11

home 20 minutes away.

12

proof of that, that's sheer speculation on this record and

13

contradicted by the testimony that came out.

14

Appellate Division found proof that Michele always came

15

home and that September 12th was the first morning that

16

she did not come home.

17

the contrary.

18

Again, at this point there's no

The

At this trial there was proof to

Brian Earley specifically testified that there

19

were mornings that he would wake up to go to work at 6 or

20

6:30 and Michele would still be in bed sleeping.

21

was testimony that came out both from Brian Earley and

22

from Pam Brock that Michele did in fact spend nights

23

outside of the family home.

24

would refute on this record the finding that the Appellate

25

Division relied on for opportunity.

There

And so that is testimony that

18

So the Appellate Division's conclusion of

opportunity on this record that the People demonstrated

that Michele returned home and that seven hours passed

until Cal called Barb Thayer giving him the opportunity to

kill her and dispose of her body is simply no longer

valid.

And so the People's proof of opportunity on this record no

longer exists.

That line of inferences is no longer permissible.

With respect to motive, the People have

10

identified the motive in this case as Cal's desire to

11

avoid an expensive appraisal; as the looming trial date in

12

October of 2001; as the divorce and equitable distribution

13

and the desire to avoid spending that money; and most

14

importantly, as his desire to maintain control.

15

of this proof of motive only follows if, as the Appellate

16

Division found on the record that was then before it after

17

the second trial, that Michele, quote, the Appellate

18

Division found, rejected defendant's settlement offer.

19

There is no proof on this record that Michele rejected

20

defendant's settlement offer.

21

But all

In fact, to the contrary.

Michele, as everybody knew, was buying a home

22

because she was going to accept the settlement offer that

23

Cal was proposing.

24

Nikki Burdick, testified that they were aware that

25

Michele's intention was to accept the settlement offer.

The People's witnesses, including

19

And so on this record there's nothing that would suggest

that there was any loss of control by Cal in this case.

It was his offer on his terms that Michele would accept.

Numerous witnesses have testified in the

People's case that one of Michele's motivations in picking

the house that she picked was because not only was it

close to where the kids went to school, but it was also

close to Cal's dealership.

testified that the relationship between Cal and Michele

In fact, numerous witnesses

10

had gotten better and less troubled as the months

11

progressed and as the summer was proceeding.

12

both come to terms with the fact that they were divorcing.

13

Cal had made a generous settlement offer that Michele, as

14

her friends knew, intended to accept.

15

and only because of that conclusion, she picked a home

16

because it was important to her that the home would be

17

close not only to the kid's school, but to Cal, so that

18

the kids could continue to have a relationship with him as

19

well and so that it would be easy for him to visit.

20

They had

And to that end,

So on this record the notion or the notion of

21

motive that the People have advanced here of avoiding the

22

costs, of avoiding the looming trial date, of maintaining

23

control, simply does not exist as it did in the prior

24

trial.

25

point either.

The evidence did not come out the same way on this

20

Moreover, with respect to the looming trial date

there is no question on this record that that trial date

was not an absolute.

allowed that October date to be the date that the trial

would happen, to be the date that anything would occur

here.

There is nothing that would have

There was evidence that was presented in this

case from the People's witnesses that whatever the record

that was set in fact that was the date that was -- the

10

first date that had been set and could be adjourned.

11

discovery had not yet been completed, the appraisals had

12

not yet been done.

13

this looming date and loss of control as a form of motive

14

is simply not borne out by the evidence.

15

there not a valid line of reasoning that would support

16

that speculation, but it's directly contrary to the

17

evidence that was presented at trial and there is no

18

evidence that would counter it.

19

The

And so all of this anticipation of

Not only is

With respect to the element of intent.

The

20

element of intent in this case is actually separate from

21

the necessary element of a killing.

22

intent is also not established by legally and sufficient

23

evidence here.

24

intent in this case was established by proof of a

25

culmination of a cycle of abusive, controlling behavior

And the element of

The Appellate Division found that the

21

that intensified after Michele rebuffed defendant's

attempt to prevent a divorce.

Division's quote on how intent was established.

And that is the Appellate

The problem is that the culmination of the cycle

of abusive, controlling behavior is founded in this case

on only three incidents.

incident that was testified to by the People's witnesses

where Michele was in a closet and heard the defendant

racking his gun.

There was a 1996 gun racking

That 1996 incident is so remote in time

10

and has no link to the divorce at all.

11

as to how or why or what precipitated that fight or what

12

precipitated Michele being in the closet and making that

13

phone call about the racking of the gun.

14

There's no context

The 1996 incident occurred before there were any

15

affairs either by Michele or by Cal in this case, before

16

the marriage was suffering, before two of their children

17

had been born.

18

know that this Court made the determination to allow the

19

incident to come in.

20

no bearing on the question or the element of intent,

21

because it is entirely disconnected from any of the events

22

that are at issue, or anything that the People have

23

theorized is at issue in this trial.

24

before the disappearance of Michele.

25

Whatever it's probative value -- and I

The fact is that it has absolutely

It was five years

The explosive reaction when Michele told Cal on

22

December 8th, 2000 she wanted a divorce is the next

incident upon which the People rely to establish intent or

to show this culmination of this cycle of abusive,

controlling behavior.

December 8 incident did not contain any kind of a threat,

any kind of abuse, any kind of controlling behavior.

the contrary, that was the date that Cal was first told

that Michele wanted a divorce.

has come out -- questionable exactly what Shannon Taylor

The problem with that is that the

To

It was, as the evidence

10

heard, but for purposes of sufficiency we're obviously not

11

going to delve into matters of credibility.

12

based on Shannon Taylor's account, all she heard was that

13

Cal was telling Michele to get out of the car.

14

obviously he had just been told of the divorce and he

15

wanted to talk.

16

But even

And

And so in this context to say that on the day he

17

was told that she wanted the divorce and he told her to

18

get out of the car and blocked the car in the driveway,

19

that this is somehow an event that has any bearing on

20

intent to commit any crime thereafter is an inference that

21

is so weak and based on such speculation that it would be

22

an impermissible inference in this case.

23

On this point, as the Appellate Division noted

24

as well and the Court of Appeals thereafter, the alleged

25

threats -- or I should say as the Court of Appeals noted

23

thereafter and the Appellate Division said, the alleged

threats that were reported to Mary Jo and Francine were

not admitted at this trial for their truth.

the content of those threats was not before the jury at

all.

on by the prosecution in this case to establish intent.

They're simply not part of the evidence that is before

this jury or before this Court.

And in fact,

And so those threats are not ones that can be relied

Finally, the alleged threat that was overheard

10

by the hairdresser who testified in the People's case was,

11

as the evidence at this trial established, in May of 2001,

12

not in September, not in August, not even in July.

13

this point the hairdresser very clearly -- first there was

14

documentation that went in showing the actual dates of the

15

appointment, and the hairdresser at this trial said that

16

it very well could have been May.

17

was suggested or anything in the hairdresser's testimony

18

that would have established that the date was conclusively

19

later on in July.

20

On

There was nothing that

Additionally, to go back to intent and the

21

culmination of the behavior that intensified as the

22

Appellate Division said after Michele rebuffed defendant's

23

attempt to prevent the divorce in this case, this threat

24

that was overheard by the hairdresser, even if it is

25

deemed credible, which we would actually argue on the

24

testimony that came out here, should be, rises to the

level of actually being incredible as a matter of law.

But even if this Court were to find that that testimony

was completely credible for the purposes of the trial

order of dismissal, if this occurred in May of 2001, again

it would be remote from the date of incident here because

it would have preceded the settlement offer, it would have

preceded the summer of 2001 when both Cal and Michele's

relationship with other people were burgeoning and when in

10

fact they had both reconciled and had become -- had had a

11

more amicable relationship or more civil relationship to

12

each other.

13

multiple witnesses testified that things had settled down

14

and the relationship became more civil.

15

It would have preceded the timing when

In other words, the difference between the

16

testimony at this trial and the prior one with respect to

17

that one remaining threat is that if it happened in May

18

2001, which the proof in this trial allows for, in fact it

19

strongly supports, then it has absolutely no bearing on

20

the elements of intent because it no longer has a

21

connection to September.

22

that are essential to the People's theory of motive and

23

intent in this case.

24
25

It precedes all of the events

Finally, the last form of evidence that the

People would rely on here is consciousness of guilt

25

evidence.

evidence, as this Court has noted on a different

occasioning.

is, quote, from a Court of Appeals case, highly dependent

upon the facts of each particular case.

Consciousness of guilt is the weakest form of

It is of limited value and it probatively

Consciousness of guilt evidence is typically, if

one does review of the case law, dependent on statements

or actions that defendant takes that are inconsistent with

innocence.

It could be changing, revolving stories.

10

could be leaving town when police investigation

11

intensifies.

12

where the crime occurred.

13

evidence is not based on any traditional factors that

14

would normally constitute consciousness of guilt.

15

It

It could be trying to distance himself from

Here consciousness of guilt

The People rely on defendant's behavior when

16

Thayer arrived and was making arrangements for the kids on

17

that morning.

18

confronted by his sisters-in-law.

19

that he was having a garage sale and instructed Barb

20

Thayer to basically erase all memory of Michele and to get

21

rid of all of her items.

22

establishes consciousness of guilt in the traditional

23

sense.

24
25

They rely on his reaction upon being

They rely on the fact

But none of those things

And moreover, when one does as the Court of

Appeals instructed, when one puts them into the context

26

and the facts of each particular case, not only are all of

those things equivocal, but all of those things in fact

are more consistent with innocence.

morning that Michele disappeared was not odd behavior.

knew that Michele had stayed out on previous occasions and

had been at Brian Earley's house.

Earley testified, that there were nights that she would

stay out and come home in the early morning.

just started, it was no longer summer.

Cal's behavior on the

He

He knew, as Brian

School had

And so Cal woke up

10

and found that Michele wasn't there, which wasn't alarming

11

or surprising to him.

12

driveway, which in fact witnesses have testified it had

13

been before.

14

kids ready for school.

15

proceed with the day.

Her car was at the bottom of the

And Cal did what he had to do to get the

He did what he had to do to

16

His behavior in making plans for his children to

17

ensure that they would be cared for is not consistent with

18

guilt, it is behavior that is consistent with a man who

19

had to make a plan to care for his children on a day when

20

he didn't think at the time that anything horrible had

21

happened at that time in that morning on that day.

22

Upon being confronted -- his reaction upon being

23

confronted with Michele's allegations that he had made

24

threat by his sister-in-law I think the best testimony

25

showing how equivocal that so-called consciousness of

27

guilt is were the words of Mary Jo.

stand, the People's witness, testified that Cal had gone

there for sanctuary.

family to get support at a time that was difficult for him

and his children.

confronted or accused with having done something, but

thinking that he would have, again, as she stated,

sanctuary.

Mary Jo on this

He had gone there to be with his

Not thinking that he was going to be

His reaction at being ill, of being sick, of

10

being distressed, of being shocked when he was confronted

11

instead not with sanctuary and support from his closest

12

family, but rather with accusations, is one that is not

13

consistent or would lead to inference of guilt or

14

consciousness of guilt, it is one that is far more

15

consistent with innocence.

16

And finally, with respect to the garage sale

17

which the Appellate Division relied on most in determining

18

that there was consciousness of guilt evidence that was

19

presented here, the garage sale was Barb Thayer's

20

testimony -- and again, not getting into issues of

21

credibility.

22

People's contention that Cal had attempted early on to

23

erase all memory of Michele, except the evidence at this

24

trial came out differently because the evidence at this

25

trial established that was absolutely not accurate.

Barb Thayer's testimony supporting the

28

There is already in evidence, through Barb

Thayer, through the People's case, evidence that far from

erasing all memory of Michele from the home, in fact Cal

had kept the things that were most significant.

memorabilia, including a plaque that commemorated their

wedding.

letter that is in evidence now that Michele had written in

her own hand to her children.

memories of Michele, including photographs, including

He kept

He kept letters that Michele had written or a

He kept and preserved other

10

other commemorative memorabilia, and including some of

11

Michele's clothing that Barb Thayer had said she had been

12

instructed to remove entirely.

13

come out through the People's case already refutes the

14

fact that defendant or that Cal was actually trying to

15

eliminate traces of Michele from the home.

16

So the evidence that has

On this record, your Honor, even this weakest

17

form of evidence, this consciousness of guilt evidence, is

18

so lacking in this case, equivocal at best, but in fact

19

more consistent with the actions of what an innocent

20

person would do faced with the situation that had

21

unfolded.

22

this case as it must be, there is no consciousness of

23

guilt evidence that can substitute or that can help the

24

People establish the elements of the crime that are so

25

sorely lacking here.

On this record, and viewed through the facts of

29

And so as a result on this record the People

have failed to establish either the element of a killing

or the element that that killing was intentional.

either or both of these reasons this Court should grant

the trial order of dismissal and put an end to this case.

THE COURT:

MR. MARTIN:

Thank you.

And for

Mr. Martin.

Your Honor, under the standard for

a trial order of dismissal the only issue is whether there

is competent evidence if accepted as true would establish

10

every element of the offense charged, and all the evidence

11

must be viewed in light most favorable to the People.

12

Now, contrary to what defense counsel just said,

13

there was proof that Michele did come home that night.

14

That's where her van was found.

15

pointing out that maybe she had left her van at a parking

16

lot at a restaurant someplace else before somehow

17

discredits the fact that the van was actually found at the

18

driveway at home at Hagadorn Hill Road that night, I think

19

stretches common sense.

20

And defense counsel's

Now, Hagadorn Hill Road is more importantly also

21

where her blood was found.

Her blood was found in the

22

kitchen alcove, her blood was found on the kitchen rug

23

that was in the kitchen alcove, and her blood was found in

24

the garage.

25

blood spatter.

And it's not just her blood, but it's her

And it's not just her blood spatter, but

30

on the rug itself there is a one inch by one inch transfer

stain of an object that contained her blood that came into

contact with that rug.

In the garage the extent of the area where her

blood was found was a 3 foot by 6 foot area and there was

testimony that Michele Harris could have fit in that area

herself.

and testimony that it was consistent with having been

cleaned up.

And the blood that was found, there was evidence

And we're not suggesting and we haven't

10

suggested that we happened upon this scene immediately

11

after the event had taken place.

12

blood was found, that's where her van was found, that's

13

where her spattered blood was found, and that's where

14

Michele was on the night of September 11th and in the

15

early morning hours of September 12th.

16

But that's where her

And with regard to the cut hand, your Honor,

17

there's no testimony that that cut for one was ever

18

bleeding or was producing blood.

19

there was was from an event that occurred many months

20

prior to September 11th, and there's no line of reasoning

21

or testimony that would support a line of reasoning that

22

would suggest that a small cut or a cut on a hand would

23

generate the amount of blood that was found at the

24

residence covering an area the size where the blood was

25

found, or would create the type of spatter that was found

Secondly, whatever cut

31

and the spatter in the exact locations which included the

closed area of the door of the kitchen alcove, and again a

one inch by one inch -- or roughly, approximately,

transfer stain of an object that contained Michele Harris'

blood that came into contact with that rug that happened

to be exactly the same location as the kitchen alcove

where her spatter was found on the walls and on the

molding.

Now, with regard to defense counsel's assertion

10

that there's only a couple things that point to the

11

defendant's controlling behavior, I've got to disagree

12

with that.

13

Michele is hiding in a closet while the defendant is

14

downstairs racking a gun, but he also tells Linda Hyatt

15

that he cut off her money supply and her allowance because

16

she needed to learn what it felt like to get a real job

17

and earn money by herself.

18

Not only is there the 1996 incident where

There is the December 8th, 2000 -- and I'll use

19

defense counsel's words -- explosive reaction by the

20

defendant in reaction to being told by Michele that this

21

was done and she was filing for a divorce.

22

attempts by the defendant to get her family to change her

23

mind about the divorce.

24

defendant had made, and whether it's the specific language

25

of the threat which the jury was not able to hear, but was

There was

There were the threats that the

32

used or not, but the threats that the defendant was

confronted with in Cooperstown by Mary Jo Harris with

Francine present there, regardless of defense counsel's

assertion that the jury can't consider the truth of the

threat, they may not be able to consider the truth of the

statement that -- or you know, the threat that Michele

conveyed had been made by the defendant to her when she

was telling Mary Jo and Francine about that, that does not

mean that the jury cannot find that the defendant adopted

10

that threat and admitted to it in the sense that he

11

said -- when he said yes I may have said that but I didn't

12

mean it, or I didn't mean -- you know, I didn't mean it I

13

think is where we left it.

14

There's also the very specific threat that the

15

defendant makes to Michele over the phone which the

16

hairdresser hears a mere four months before Michele Harris

17

goes missing.

18

think is very telling:

19

the divorce or I will F'ing kill you.

20

drop the divorce or I will F'ing kill you.

21

drop the divorce.

22

And the specific nature of that threat I

Michele, drop the divorce.

Drop

Do you hear me,

And she didn't

With regard to some of the other things, you

23

know, that the defendant's behavior and the things that he

24

did, he told Barb Thayer on September 11th, 2001, when

25

they were driving down the driveway to pick up the van at

33

the end that Michele had gone to New York City.

So we

know that that's not true from the evidence that we've

heard so far.

on the phone, it was I believe on the morning of the 13th,

that Cindy didn't understand that Michele was no good.

told Cindy Turner that he cut himself a lot shaving as an

explanation for why the police might have found blood in

the garage.

gun.

He told Cindy Turner when he talked to her

He

There's evidence of the defendant racking the

It's clear that the defendant did not want the

10

divorce.

11

defense counsel points out are questions of fact for the

12

jury to decide or is argument for them to make as to the

13

significance of those particular facts and they can

14

address that on summation.

15

you know, does it undermine the legal sufficiency of the

16

evidence in this case as it's been presented on our direct

17

case.

18

And I would add that many of the things that the

But in no way, stretch or --

Your Honor, there is a valid line of reasoning

19

from the defendant's statements and threats to Michele to

20

the effect that if she didn't drop the divorce that he

21

would kill her, and then to other people that there was

22

going to be no divorce.

23

Hagadorn Hill Road and the blood there at the house

24

there's a valid line of reasoning to suggest that that's

25

exactly what happened, was he had threatened to kill her

And with her van being located at

34

if she didn't drop the divorce, she didn't drop the

divorce and he did kill her.

Thank you.

MS. ALDEA:

Your Honor, just a brief rebuttal?

THE COURT:

Sure.

MS. ALDEA:

I'll start with what Mr. Barket just

whispered to me.

7
8
9

MR. BARKET:

Don't say that, it may not be

helpful.
MS. ALDEA:

Which I think is actually accurate.

10

Here's the problem in a nutshell.

11

thin last time and now it's weaker.

12

when you look at the Appellate Division's decision on this

13

razor thin case that divided that by panel and also

14

divided the Court of Appeals, all of the things that the

15

Appellate Division relied on, which I highlighted before

16

and I'm not going to do it again, but things like the fact

17

that the blood was recent, things like the fact that it

18

was her blood, these are things -- that was the strongest

19

part of the proof that the Appellate Division relied upon

20

and those things are lacking.

21

This case was razor

And my point is that

A fair reading of the Appellate Division's

22

decision on sufficiency, which again I don't agree with

23

Mr. Martin's statement of what the rule is.

24

standard is that you draw all inferences in the

25

prosecution's favor.

I'm doing that.

Certainly the

I'm not arguing

35

credibility before this Court.

said, the Court of Appeals has cautioned that they need to

be permissible inferences.

speculation.

However, even with that

It cannot be based on sheer

The People have to prove the circumstantial

facts that establish that a homicide occurred where there

were no witnesses that saw it, where there was no body

that's ever been recovered.

blood, without showing that it is Michele's blood, the

Without the recency of the

10

People simply cannot, cannot, make that case in a way that

11

is legally permissible.

12

the Appellate Division's own decision, if this case were

13

before them it would be rejected unanimously as legally

14

insufficient because all the factors that that court

15

relied on most pointedly in its decision are now lacking.

16

And as a matter of law, based on

Just a couple of points with respect to -- to

17

address some of the things that Mr. Martin argued.

18

the fact -- he made the argument about the blood in the

19

garage and the kitchen alcove.

20

her blood, and that it was blood spatter, and that there

21

was evidence of clean up, and that it was -- there was no

22

testimony, I think is the quote, that spatter and this

23

quantity of blood could come from a cut hand.

24
25

First,

He said, and I'll quote,

The question is not what testimony we've

presented, although surely we will, and we will in fact

36

renew this motion, if it's not granted now, at the

conclusion of all the evidence in the case.

is what testimony they presented to establish it.

would point out that with respect to the cut hand, to go

in reverse order, their expert testified on their direct

case that this would be consistent with a cut hand.

The question
And I

We now have evidence that did not exist at the

prior trial that in fact there was a cut hand.

And to

suggest that that cut hand did not bleed defies the

10

dictionary definition of the word cut.

11

the prosecution knows, is actually the facts of this case.

12

Which again, that's something we will renew at the

13

conclusion of all the evidence in this case.

14

no question that they know, as the records demonstrated,

15

that that cut did in fact bleed.

16

that and the prosecution is aware of it.

17

It also defies, as

But there is

There is no question of

It should not be permitted in a sufficiency

18

argument to rely on a definition of cut that's contrary to

19

the plain meaning and that they know is contrary to the

20

actual evidence in this case, that they were aware of and

21

their expert was probably aware of at the time, that as

22

the jury saw on video he was consulting with the district

23

attorney who specifically asked him about the cut hand.

24

Additionally, with respect to the cut, to say

25

that there is no testimony that -- I'm sorry, not to say

37

there was no testimony.

To say that this is her blood and

that this is blood splatter as the prosecution did is to

ignore the evidence that came off the stand, and so that I

guess is worth repeating.

prosecution has proffered in this case that this is

Michele Harris' blood.

blood in an area where we already know that there was dog

blood.

were available for them to do to ensure that the blood was

There is no proof that the

They have shown that there is

They have shown that there were species tests that

10

in fact human and they did not do those species tests on

11

the areas on which they rely.

12

And most importantly, while there was testing

13

that might have been available to show, as their own

14

expert testified, that the DNA was in fact extracted from

15

blood and not from skin cells or something else, they did

16

not do those tests.

17

presented it all they have shown is that Michele's DNA, as

18

expected, would be on an area rug in an area of the house

19

that she lived in, that she actually frequented more than

20

anyone else, that their own witnesses have testified she

21

walked across daily barefoot and undressed, and that their

22

expert has acknowledged would be a source that would be a

23

reason to have a deposit of her DNA in that area.

24
25

And so on the evidence as they have

Without showing that the DNA came from the blood

that was recovered, without showing that most of those

38

spots of blood were even human blood, there is simply no

way that the People have established what Mr. Martin just

relied on, that it was her blood.

inference, does not exist in this case.

permissible inference it is a deficiency in proof.

That fact, that

It is not a

With respect to the blood splatter, the fact

that it was spatter, their expert testified now with the

term medium velocity impact splatter no longer valid that

he couldn't determine whether this was impact spatter or

10

whether it was some other type of spatter.

11

that that's changed from some of the evidence that was

12

elicited at the prior trial.

13

And I believe

Their expert testified that this spatter could

14

be consistent both with something striking the blood or

15

with the blood striking an object, like for instance

16

falling onto something, and therefore spattering as a

17

result of that.

18

that it would also be consistent with a sneeze, it would

19

also be consistent with shaking a hand, and he

20

specifically said that it would be consistent and he could

21

not exclude that it was a cut hand.

And again, as I've stated, he testified

22

I would also note that with respect to the

23

height of the blood and how it was deposited that 29

24

inches is perfectly consistent with the height of a

25

person's hand, of a 5 foot tall person's hand that's

39

hanging down low when they shake it.

nothing in the evidence here that would establish a

significance of the spatter that would tend to suggest

criminality.

as I said the quantity of blood is wholly inconsistent

with the crime seen.

be consistent with that.

the things that their expert identified, the cut hand that

could have also resulted in this.

10

And so there's

And with respect to the quantity of blood,

There simply is not enough blood to

It is far more consistent with

Assuming that the DNA and that the blood that is

11

there is all hers rather than dog blood with human skin

12

cells on top or an unknown male's blood or another

13

person's blood with skin cells deposited on top with

14

Michele's DNA from the skin cells.

15

testing that was never done in this case, although it

16

could have been.

17

Which again, is

With respect to the controlling behavior, the

18

prosecutor argued that there was evidence that Cal cut off

19

Michele's money supply.

20

cutoff of the money supply is certainly not timely to the

21

time that Michele actually disappeared.

22

point he was -- through all the times I should say he was

23

providing for all of her expenses, including her car,

24

including her gas, including her food, including the other

25

expenses for the child care that the children had, paying

Although I would note that that

In fact, by that

40

the bills of the house, paying for the kids' school.

so it wasn't that her money was cut off in the sense that

she couldn't support herself or survive.

timing of that -- what was the date of the order?

MR. BARKET:

MS. ALDEA:

And

Moreover, the

June.
By June there was an order in place

that Cal was already providing Michele with weekly checks

again in the amount of $400 at that time.

prosecution's theory that this cutoff of the money supply

10

was somehow part of this culmination that resulted in her

11

disappearance in September is simply divorced from the

12

facts of this case.

13

And so the

The explosive reaction I want to highlight was

14

actually not my words, I was reading from the Appellate

15

Division's decision, and that was on December 8th.

16

for purposes of consciousness of guilt having explosive

17

reaction that consists of nothing more than saying get out

18

of the car because he wanted to talk to her on the day

19

that she tells him she wants a divorce is certainly not

20

indicative of guilt or a valid line of reasoning that

21

would suggest anything.

22

Again,

And finally, with respect to the threats that

23

Cal allegedly made, the People come dangerously close

24

again to using those threats for their truth.

25

nothing in the threats that Francine and Mary Jo overheard

There is

41

that were before this jury certainly in terms of

substance, and the value of those threats is his reaction

upon being confronted which again in this trial, although

it's different from the prior two, Mary Jo and Francine

both made it clear that his reaction was shock and of

surprise when he came there for sanctuary, which is their

own witnesses' words, is something that is perfectly

consistent with innocence not with guilt.

Additionally, the People relied on Cindy

10

Turner's testimony here that Cal had apparently told her

11

that -- the quote is that he cut himself shaving in the

12

garage in order to explain the blood.

13

actually testified at this trial that Cal said or it could

14

have been the dog's blood.

15

out that Cal was absolutely correct, because it turns out

16

that it was the dog's blood in an area of that garage, and

17

because of the lack of species tests on a lot of this

18

blood it was perhaps the dog's blood in other areas of

19

this house where these less than 10 drops of blood were

20

found in the garage and then 10 drops of blood or 10

21

droplets of blood or quantity far less than that found on

22

the rug.

23

Cindy Turner

And so in fact I would point

Finally, with the hairdresser, I think that

24

Mr. Martin has missed the point.

The point is that at the

25

prior trial the threat that the hairdresser allegedly

42

overheard was significant because of its timing.

Because

its timing was allegedly something that had occurred late

in the game.

placed this at a time that would have contradicted the

testimony of other witnesses or led to an inference that

in fact things were not getting better, settling down, but

rather things were becoming increasingly worse as the date

of Michele's disappearance approached.

It had occurred in July, which would have

At this trial the hairdresser acknowledged and

10

the records support that that encounter in fact occurred

11

in May, which was a time, as I said, prior to the summer.

12

So the significance of what Jerome overheard, even

13

assuming that he's not incredible as a matter of law,

14

which as I said I think his testimony does rise to that

15

level.

16

completely diminished from any probative force as a result

17

of the timing that came out differently at this trial than

18

it had in the past.

The significance of what he claims he overheard is

19

In fact, what we have on this record is numerous

20

prosecution witnesses saying that rather than this being a

21

culminating cycle that was leading up to a crescendo that

22

ended on the date of Michele's disappearance as things

23

were getting worse, all we have on this record is multiple

24

prosecution witnesses saying again and again that things

25

were getting better between Michele and Cal at the end of

43

August and at the beginning of September, which is

precisely the time frame that is most probative on the

question of control and on the question of the theory of

the prosecution's case for murder and for intent.

And so on this record again there is -- there

was scant evidence at the prior trial.

none of the Appellate Division's key facts that it relied

on are satisfied based on the evidence as it came out

before this Court.

10

On this record

And so again, the motion for trial

order of dismissal should be granted.

11

THE COURT:

12

MR. MARTIN:

Mr. Martin.
Judge, I'll try to be briefer, but

13

I want to also just bring to the Court's attention though

14

too about the admissions that the defendant made to

15

Investigator Myers, that the defendant admitted to

16

Investigator Myers the day after that he had made no

17

contact to contact Michele; that he had made an offer to

18

Michele for settlement in the divorce and that he believed

19

she was rejecting that because she had not accepted it and

20

he had not heard back from her or her attorney; that she

21

had never stayed out all night before like that; and that

22

he wanted her van back as soon as possible because he

23

wanted to put it on the lot and sell it.

24

Now, with regard to Jerome, the hairdresser, I

25

may have misspoke if I said four months prior to that or

44

not, but the testimony was clear and defense counsel

misstates what the records is.

The hairdresser said that

he cut Michele's hair in July.

Now, defense counsel

tried -- they put in the record he said that he didn't

make those records, but I believe the testimony is clear

that it was July.

May I don't think matters too much.

But nonetheless, whether it's July or

The defendant said to the hairdresser drop the

divorce, and there's a lot of other words with this, and

10

the tone according to the hairdresser was angry, mad and

11

something of that nature.

12

divorce, if you don't drop the divorce I will kill you.

13

Do you hear me, Michele, if you don't drop the divorce I

14

will, expletive, kill you.

15

Drop the divorce, drop the

So the fact is that come September 11th, 2001,

16

the divorce was still set for trial in October and

17

according to the admissions that the defendant had made to

18

Investigator Myers he still believed that the divorce was

19

going to go to trial, he had made an offer and that was

20

being rejected.

21

was still pending and Michele had not done what the

22

defendant had asked her to do or threatened to kill her

23

and actually make her disappear.

24
25

And so on September 11, 2001, the divorce

Now, with regard to the blood evidence, there's

nothing lacking here.

Both DNA experts described the

45

blood evidence as single source samples and the swabs that

were tested were taken from the staining and that there

was no other DNA in those stains.

they were single source samples, and somebody can infer

that that was her blood.

that existed when the state police finally got there and

found it was certainly after it had been cleaned up and

the scene had been altered.

They weren't mixtures,

Now, the quantity of the blood

And with regard to the species testing, again I

10

think defense counsel is misstating the records.

11

Brad Brown testified that he had done confirmatory tests

12

to a couple of the stains and did confirm them as human

13

blood.

14

that regardless of whether confirmatory species test is

15

done with regard to every single sample that is tested,

16

that the profile that's generated through DNA tells them

17

whether it's human DNA or some other type of species.

18

In fact,

And specifically the DNA experts also testified

And I would also say that defense counsel

19

misstated the record.

The expert did not say that all the

20

spatter that was in the alcove and the spatter that was on

21

the rug and the one inch transfer stain of a bloody object

22

with Michele's blood on it that came into contact with

23

that rug and the 3 foot by 6 foot area in the garage with

24

several hundred stains on them that had been cleaned up

25

was consistent with a cut hand, and I would submit that

46

that's, you know, actually ridiculous.

So the only issue is whether there's competent

evidence if accepted as true would establish every element

of the offense charged and I think there's plenty of that

and we certainly cleared our burden or our hurtle on that

issue.

MS. ALDEA:

the cleanup before.

minor point?

Your Honor, I just forgot to address

Could I just address that one very

10

THE COURT:

Sure.

11

MS. ALDEA:

With respect to the cleanup I had

12

taken a note of it and I forgot to say it.

13

with the People's argument on a lot of this is that all

14

he's saying is it was consistent with cleanup.

15

with means also not consistent with.

16

consistent with a lot of things.

17

evidence of cleanup in this case in the garage when all

18

that's shown here from this proof is that police officers

19

were walking with muddy boots after it had rained over an

20

area of the garage floor that had blood on it.

21

The problem

Consistent

In other words, it's

To say that there was

And the only evidence actually or the testimony

22

is alteration, that some of the stains had been diluted,

23

although some of them were whole blood, some of them had

24

been altered in the sense that they had been touched or

25

they had come into contact with something other than they

47

were left alone.

that it is consistent with cleanup is to say it's also

consistent with people walking over that area.

area that in fact might have been there for months.

might have been there from the cut hand because we have no

way of dating how long any of that blood or those hundreds

of blood droplets had been there.

8
9

That is not evidence of cleanup.

To say

Over an
It

And in fact, what's interesting is that while

there was that fluorescein picture that came into evidence

10

at the prior trial that showed that there was a pattern

11

that would have been consistent with a wipe, that evidence

12

notably did not come into evidence at this trial.

13

the proof of the so-called cleanup is weaker now than it

14

was before because that pattern is not evidence.

15

picture was excluded.

16

picture was excluded, which of course makes perfect sense,

17

is that what was lacking even then was there was no blood,

18

in spite of this LMG test, the leucomalachite green test,

19

that Dr. Lee testified would detect the presence of blood

20

when it's one to one million parts of blood to water.

21

spite of that there was absolutely no positive test for

22

the presence of blood in that cleanup pattern or in that

23

swipe pattern that was shown on the fluorescein dye, which

24

is why there is not evidence of cleanup in this case.

25

So even

That

And interestingly, the reason that

In fact, to have some areas that are diluted

In

48

next to some areas that are whole blood, to have areas

that are untouched surrounded by areas that appear to have

been altered and which could have been altered by someone

walking on them is not evidence of a cleanup effort, it's

evidence of blood being there, either from a dog or from a

human or from Michele or from someone else, blood being

there for a period of time that has been subjected to the

normal conditions of wear and tear in a frequented area of

a family home that everyone uses through all weather to

10
11

come in and out of the house.

And so, again, the fact that there is a line --

12

the fact that it is consistent or potentially consistent

13

with cleanup is not to say that the People have proven

14

that a cleanup occurred.

15

the end and even legal sufficiency requires them to have

16

adduced proof which is precisely -- I'm going to end on

17

the quote with which I began.

18

Court of Appeals has said that close judicial supervision

19

of verdicts or cases here based solely upon circumstantial

20

evidence is necessary to ensure that the jury does not

21

make inferences which are not based on the evidence

22

presented but rather on unsupported assumptions drawn from

23

evidence equivocal at best.

24
25

It is their burden of proof in

It's precisely why the

Cleanup, like saying it's Michele's blood, like

saying it's spatter that's caused by an impact or a murder

49

is nothing more than the People's attempt to ask the jury

to make an inference which is based not on evidence

presented, because there is not evidence of any of those

things but rather on unsupported assumptions drawn from

evidence equivocal at best.

When their own argument before this Court is

riddled with may, words like it may be and it's consistent

with rather than the evidence as shown, that is the

clearest indication of the weakness in their case and the

10

fact that they have not, even drawing all inferences in

11

their favor, satisfied the test that the Court of Appeals

12

has enunciated for the legal sufficiency of evidence.

13
14
15
16

THE COURT:

The Court will reserve

decision on the application.

MR. BARKET:

Judge, could you wait just one

second with respect to the Damon slash Rosario material?

17

THE COURT:

18

MR. BARKET:

19

THE COURT:

20

Okay.

Sure.
I think this is the Damon slash -Why don't we call it CPL 240.45

because I think we're confusing each other.

21

MR. BARKET:

22

THE COURT:

23

MR. BARKET:

Okay.

Sub two?

Same section.
So here's for Ms. Angulas, Terry

24

Labor, Todd Mansfield, and Kevin Tubbs, which are the

25

witnesses that we intend to call given the Court's ruling