Part 2: Trying to Sort Out Today's Pitonyak Appellate Oral Arguments

Sometimes I get caught up in the trees and don't see the forest, sorry. So I'll back up here.

Terrence Kirk did all the oral arguments for the defense today, while Joe Turner was seated beside him and later spoke to the press with Kirk. The defense went first in front of justices David Puryear, Jan Patterson, and Diane Henson. The State argued next, then the defense got a short rebuttal to end.

Kirk began by talking about how particularly horrible, tragic cases such as this one sometimes lead to a tendency to bend the law. He said he'd address four arguments: illegal trespassing, illegal search, incompetent counsel, and lesser-included charges.

I didn't fully understand the first argument about ineffective counsel and tomorrow shall try to look up the case law mentioned, but Kirk said something about the fact that during Pitonyak's trial, his attorney Roy Minton did not object to the State's evidence about APD officers' telling Sharon Cave and Jim Sedwick that breaking into Pitonyak's apartment would be illegal and that they broke in anyway. And apparently Pitonyak's other attorney, Sam Bassett, had brought all this up in pretrial hearings and Minton's effectively waiving error at trial equaled ineffective assistance of counsel.

Kirk cited some case law and justices Diane Henson and David Puryear questioned him about how his argument jibes (or doesn't) with the fact that even Minton and Bassett said in their opening arguments that this case was not a who-dunnit and what does Pitonyak's admission on the stand do to his argument?

Kirk then argued about how the evidence discovered during the illegal search (please see my part 1 previous post) should be excluded.

Kirk later addressed the issue of the exclusion of lesser-included charges, starting by saying that insufficient memory of the event alone should allow the inclusion of manslaughter or criminally negligent homicide charges instead of only the murder charge, citing a case I'm still trying to find. It sounded like he said "Shroeder" and that's just my first-instinct spelling of that name. (I welcome anyone's research and a link to this case!)

Kirk also said that the recklessness (implying no intent) presumed just by the fact of the gun's being shot should make the lesser-included charge(s) allowed.

For the State, Bryan Case began by talking about the emergency doctrine (please see my part 1 previous post re Miles.) Justice Henson asked him how that related to the present case. He said that he couldn't give her case law involving a true emergency doctrine case and that he'd have to refer again to Miles and that, really, Miles is an exigent circumstance case and that in his opinion, emergency doctrine is exigent circumstance.

Then Case addressed the issue of lesser-included charges. He said that Pitonyak's claiming (in his trial testimony) that he had no idea what happened that night and at that same time claiming he was certain he was the one who killed Jennifer Cave didn't make sense--that one of these proclamations had to be a lie. Case further argued that current law says that the jury must believe (from the evidence presented) that the defendant is guilty of only the lesser charge (I think he mentioned case law named Hall here), that we don't have a "just as likely" (the lesser charge or the higher charge) standard.

Kirk had a brief but pointed rebuttal, emphasizing that the end does not justify the means (regarding illegal entry and its resulting evidence.) He finished rather dramatically, saying, "In the words of Atticus Finch, 'For God's sake, do your duty!'"