Too bad the State cut (and keeps cutting) the OSCN budget or we could see what they were talking about. None of the documents filed have been logged or scanned since 4/6/16:
http://www.oscn.net/dockets/GetCaseInformation.aspx?db=tulsa&number=CF-2015-1817&cmid=2827287- - -
I don't practice criminal law. But this case is obviously interesting and Brewster is obviously a talented attorney, so it is worth following. Here's my half a cent (only worth half a cent because I don't do criminal law! Someone correct my ignorance):
On the defense itself:
Obviously causing the death of a human is an element of the crime. There is scant little else to defend this action other than attacking the elements themselves. Bates has essentially admitted negligence (I meant to grab the taser and messed up, sorry). And there is a dead guy. So the only thing TO attack is that the negligence caused the death (causation). That or go for jury nullification (which I think what the "stress of being an officer" defense is meant to do).
The argument Brewster is going for seems to be that the guy had a drug problem, a heart problem, and the EMTs messed up the intubation. A healthy person with good EMTs would not have died. Two defenses in one really: 1) the victim would not have died but for the fact he was unhealthy, and 2) the victim would not have died but for bad EMTs. My guess is both fail, but Brester is doing his damnedest. Just seems there isn't much to work with.
The general view in such cases is that the medical care cannot be a defense unless the original act would not have caused death. While the medical care may have failed to prevent the death of the victim, it did not cause it. To wit:
One who has inflicted an injury which is dangerous, that is, calculated to destroy or endanger life, is not relieved of responsibility by the fact that the immediate or a contributing cause of the death was erroneous or unskillful medical treatment or care of the injury by deceased, or by a physician, or by nurses or other attendants. Thus, it is not a defense that the victim died during or as the immediate result of a surgical operation rendered necessary by the existence of the wound, or that there was a possible mode of treatment which might have averted death, or that deceased might have recovered if he had submitted to an operation, or had adopted a different diet.
http://www.oscn.net/applications/oscn/deliverdocument.asp?cite=649+P.2d+807While I don't have time to research the "a healthy person would not have died from a 357 gunshot wound to the back" defense, the general rule is that you take your victim as you find them. The charged crime is not an "intent" crime (and even then intent can be imputed. If you intended to punch me in the head but didn't intend for me to fall down, break my neck and die... it is still murder). So all that really matters is that the negligence led to the death. That the victim was unhealthy is largely irrelevant to that question... otherwise it's open season on Okies because most of us are fat, out of shape, heart problem, pill addicted, drinking or smoking unhealthy people (USA! USA! USA!).
I'm happy to be corrected, but it seems to me that unless they can prove that the victim happened to die from something wholly unrelated to the .357" hole through his chest and that the gunshot was a mere coincidence, I don't think the defense holds water. "She was really old, yes it appears she was raped to death - but a 20 year old raped in a similar fashion would not have died from a heart attack." Seems about the same as "He was really unhealthy, yes it appears he was killed by a 357 shot to the back - but a healthy man shot in a similar fashion would not have died from a heart attack."
Happy to see case law to the contrary. Was hoping to read the Defense and prosecution briefs.
Delay:
Brewster document dumped 2,600 pages and apparently introduced new experts in the last week or ten days... then tells the cameras that he is shocked that the prosecution wants a delay and that justice demands that the trial go forward! Just so much bluster. According to the article, the prosecution doesn't even have the experts' conclusions. but, Brewster's job is to get an advantage for his client and he almost always seems to do that.
Apparently the experts were listed, but not the substance of their testimony. In a civil trial, their testimony would be excluded. Criminal defendants have more rights, but you generally can't just spring new things. Trials are theater, not "shock and awe" with surprises around every corner. I'm thinking the document dump is enough to grant a delay and Brewster will be required to provide the conclusions of the experts he has hired. Just a guess, I try not to do any criminal work.
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The entire case boils down to this jury instruction:
OUJI-CR 4-103
MANSLAUGHTER IN THE SECOND DEGREE - ELEMENTS
No person may be convicted of manslaughter in the second degree unless the State has proved beyond a reasonable doubt each element of the crime. These elements are:
First, the death of a human;
Second, the death was unlawful;
Third, the death was caused by the culpable negligence of the defendant(s).
OUJI-CR 4-104
MANSLAUGHTER IN THE SECOND DEGREE -
CULPABLE NEGLIGENCE DEFINED
The term "culpable negligence" refers to the omission to do something which a reasonably careful person would do, or the lack of the usual ordinary care and caution in the performance of an act usually and ordinarily exercised by a person under similar circumstances and conditions.