Josh & Anna Smuggar: A Series of Unfortunate Events

[MargeGunderson]

I’m pretty sure that Smuggar’s smugness is a permanent fixture on his face at this point.

[Tikichick]

On 11/6/2021 at 12:07 PM, quarks said:

Oh, I think it helps the prosecution's argument. I mean, the person who just happened to be in the location where CSA was being downloaded just happens to be the same person who molested his sisters, something his sisters confirmed on national television - even as they downplayed what happened and the significance? Quite a coincidence, wouldn't you say?

But I don't know if the prosecution will be allowed to show that interview in court. The defense is arguing that this all happened when Josh was a juvenile, and he's now in his 30s, and that the trial needs to focus on the current allegations, not on what Josh may or may not have done in the past. I have no idea how the judge is going to rule on this.

 

I don't see how that interview comes in under the court rules about evidence.   Since JB didn't witness the event it is still considered hearsay.

If Josh had made that statement in an interview it could come in as an out of court admission by a party opponent, especially because there would be video evidence of Josh making such a statement  that could be presented to the jury.

[Tikichick]

On 11/8/2021 at 12:34 PM, Dianaofthehunt said:

Isn’t pleading the 5th Amendment a subrosa way of saying “I’m guilty?”

No.   Jurors are instructed that a defendant is afforded the right to remain silent and that choosing to exercise that right cannot be held against them.

[quarks]

51 minutes ago, Tikichick said:

I don't see how that interview comes in under the court rules about evidence.   Since JB didn't witness the event it is still considered hearsay.

If Josh had made that statement in an interview it could come in as an out of court admission by a party opponent, especially because there would be video evidence of Josh making such a statement  that could be presented to the jury.

Sure, but I'm not talking about the interview Megyn Kelly did with JB and Michelle, but about the interview that Megyn Kelly did with Jessa and Jill, two victims and direct witnesses to Josh's behavior. And Josh did make some sort of statement in May 2015, admitting to "acting inexcusably" as a teen, reported by the Family Research Council, the Washington Post and other media outlets. * 

It's also not at all clear what the government will be introducing or trying to introduce as evidence for this. In their words:

"If introduced, the government anticipates that the evidence will consist of testimony that the defendant was investigated for, admitted to, and received counseling for touching and sexually molesting multiple minor females." 

(From this link:  https://www.dropbox.com/s/nqmfmw2htdwvo84/GOVERNMENT’S NOTICE PURSUANT TO FEDERAL RULE OF EVIDENCE 414 AND MOTION IN LIMINE TO ADMIT EVIDEN.pdf?dl=0 )

So it sounds to me as if the government isn't planning on introducing any hearsay based evidence, but instead plans to subpoena direct witnesses to the investigation, the admission and the counseling. 

Also, the motion from the defense doesn't mention hearsay, and that doesn't seem to be the main basis for their objection/recent motion. Their motion focuses on relevancy and unfair prejudice. As they point out, the allegations happened when Josh was a minor, and he is now in his 30s; Josh is currently charged with computer crimes, and the previous allegations did not involve computers; and that learning about this would be unfairly prejudicial to a jury. In their words:

"There is no question the allegations at issue arise at a time when Duggar was a minor and the allegations at issue in this case arise at a time when Duggar was in his 30’s. Furthermore, there is no question Duggar was never charged with a crime related to those allegations."

"Despite the fact that the indictment focuses on a three-day period in May 2019 and focuses entirely on computer crimes, the Government seeks to introduce allegations arising when Duggar was a teenager that have nothing to do with computer-based conduct."

"If the jury were to hear about the allegations lodged against Duggar when he was a minor, an unacceptable risk exists that the jury would convict him in this case, not because the Government has proven him guilty of the crimes charged beyond a reasonable doubt, but because the jury would improperly conclude that the prior allegations against Duggar somehow make it more likely that he committed the charged offenses in this case."

(From this link:  https://www.dropbox.com/s/cnyh9n8rvyc0iyw/DEFENDANT’S MOTION IN LIMINE TO EXCLUDE EVIDENCE OF JUVENILE ALLEGATIONS.pdf?dl=0 )

Nothing about hearsay. Which isn't to say that it won't come up, just that this doesn't seem to be the argument the defense is making right now.

(Maybe they should!)

 

* This is separate from the August 2015 statement about the Ashley Madison and adult pornography stuff, described by Josh Duggar's attorneys as "attributed to" Josh Duggar. The defense is also trying to have this statement excluded, again on the basis of relevance. 

[GeeGolly]

If the case is such a slam dunk, why does the prosecution want to take a chance introducing prior bad acts?

[quarks]

39 minutes ago, GeeGolly said:

If the case is such a slam dunk, why does the prosecution want to take a chance introducing prior bad acts?

The government explains that in the motion I linked to above.

The prosecution believes that the defense is going to try to argue at trial that Josh was not the person who used the HP computer to downloaded the CSA and that Josh is not interested in CSA material.  They want to counter the second part of this defense by introducing evidence that Josh had a prior interest in CSA material.

[Tikichick]

1 hour ago, quarks said:

Sure, but I'm not talking about the interview Megyn Kelly did with JB and Michelle, but about the interview that Megyn Kelly did with Jessa and Jill, two victims and direct witnesses to Josh's behavior. And Josh did make some sort of statement in May 2015, admitting to "acting inexcusably" as a teen, reported by the Family Research Council, the Washington Post and other media outlets. * 

It's also not at all clear what the government will be introducing or trying to introduce as evidence for this. In their words:

"If introduced, the government anticipates that the evidence will consist of testimony that the defendant was investigated for, admitted to, and received counseling for touching and sexually molesting multiple minor females." 

(From this link:  https://www.dropbox.com/s/nqmfmw2htdwvo84/GOVERNMENT’S NOTICE PURSUANT TO FEDERAL RULE OF EVIDENCE 414 AND MOTION IN LIMINE TO ADMIT EVIDEN.pdf?dl=0 )

So it sounds to me as if the government isn't planning on introducing any hearsay based evidence, but instead plans to subpoena direct witnesses to the investigation, the admission and the counseling. 

Also, the motion from the defense doesn't mention hearsay, and that doesn't seem to be the main basis for their objection/recent motion. Their motion focuses on relevancy and unfair prejudice. As they point out, the allegations happened when Josh was a minor, and he is now in his 30s; Josh is currently charged with computer crimes, and the previous allegations did not involve computers; and that learning about this would be unfairly prejudicial to a jury. In their words:

"There is no question the allegations at issue arise at a time when Duggar was a minor and the allegations at issue in this case arise at a time when Duggar was in his 30’s. Furthermore, there is no question Duggar was never charged with a crime related to those allegations."

"Despite the fact that the indictment focuses on a three-day period in May 2019 and focuses entirely on computer crimes, the Government seeks to introduce allegations arising when Duggar was a teenager that have nothing to do with computer-based conduct."

"If the jury were to hear about the allegations lodged against Duggar when he was a minor, an unacceptable risk exists that the jury would convict him in this case, not because the Government has proven him guilty of the crimes charged beyond a reasonable doubt, but because the jury would improperly conclude that the prior allegations against Duggar somehow make it more likely that he committed the charged offenses in this case."

(From this link:  https://www.dropbox.com/s/cnyh9n8rvyc0iyw/DEFENDANT’S MOTION IN LIMINE TO EXCLUDE EVIDENCE OF JUVENILE ALLEGATIONS.pdf?dl=0 )

Nothing about hearsay. Which isn't to say that it won't come up, just that this doesn't seem to be the argument the defense is making right now.

(Maybe they should!)

 

* This is separate from the August 2015 statement about the Ashley Madison and adult pornography stuff, described by Josh Duggar's attorneys as "attributed to" Josh Duggar. The defense is also trying to have this statement excluded, again on the basis of relevance. 

Interesting.  I'm not following what's going on in depth, or really beyond occasionally reading this thread actually.  The comment I saw here only mentioned JB's comments in the MK interview, which is what I based my comment on. 

I have no idea what is common in these cases in a federal setting, but from what I'm used to seeing in cases here I wouldn't be surprised to see the judge rule to prevent anything about the prior molestation allegations from coming in. 

I am going to be interested to see if we get some detailed information during the case about how they present the information about the partitioning of the computer and the Covenant Eyes software to the jury.  I expect it will be presented simply as something that was done to prevent detection by others (partitioning) and something done as a matter of adhering to expectations of a faith-based marriage (Covenant Eyes) without giving any further background as to past history.     

[quarks]

4 minutes ago, Tikichick said:

Interesting.  I'm not following what's going on in depth, or really beyond occasionally reading this thread actually.  The comment I saw here only mentioned JB's comments in the MK interview, which is what I based my comment on. 

(nods)

The comment you responded to was mine, though, which didn't mention JB or Michelle's comments - so I wanted to clarify that.

5 minutes ago, Tikichick said:

I have no idea what is common in these cases in a federal setting, but from what I'm used to seeing in cases here I wouldn't be surprised to see the judge rule to prevent anything about the prior molestation allegations from coming in. 

I am going to be interested to see if we get some detailed information during the case about how they present the information about the partitioning of the computer and the Covenant Eyes software to the jury.  I expect it will be presented simply as something that was done to prevent detection by others (partitioning) and something done as a matter of adhering to expectations of a faith-based marriage (Covenant Eyes) without giving any further background as to past history.     

(nods) That makes sense. 

 

[ginger90]

38 minutes ago, quarks said:

They want to counter the second part of this defense by introducing evidence that Josh had a prior interest in CSA material.

Prior to this case? When?

[hathorlive]

14 hours ago, Heathen said:

Rare does not equal impossible. So he'll take a plea "for the sake of his family." 

 

I've never seen a CP case with an Alford plea was offered.  And in this case, the evidence is much too strong.  The prosecutors would never let him take that.  They are looking for hard time and a big sentence.

Edited November 10, 2021 by hathorlive

[Heathen]

19 minutes ago, hathorlive said:

I've never seen a CP case with an Alford plea was offered.  And in the case, the evidence is much too strong.  The prosecutors would never let him take that.  They are looking for hard time and a big sentence.

That doesn't change the second part of my original statement. He'll plead guilty aka take a plea "for the sake of his family" or some such bullshit. Something to save face. 

I'll be happy when he's been adjudicated just to stop the rampant speculation in the media, although I have enjoyed (if that's the word) your input on the situation. 

[hathorlive]

On 11/8/2021 at 5:58 PM, Churchhoney said:

Depends on whether your lawyer can convince the court that fairness demands that you be freed, I think..... That generally means your appeals lawyer has to be able to convince the court that there's a really strong chance that your guilty verdict should and will be overturned....

I've had two CP cases get appealed.  Both remained in jail as their appeal was denied.

[hathorlive]

7 hours ago, GeeGolly said:

To be honest I would have a hard time being quiet and expression free in a courtroom, whether I was a lawyer, defendant, witness, judge or juror. When I watch on TV, following a case or seeing snippets of cases like on Dateline, I'm always thinking, wait, what, I need more info, or you've got to be fucking kidding me. And of course I also play lawyer objecting to questions as well. And as a witness I'd wanna be like, uhm don't provoke me, just ask the question.

I'd be a prosecution attorney's worst nightmare. Mistrial! lol

I testified at a murder hearing and after I was dismissed, I made the mistake of stopping at the local McDonalds to get a diet coke.  I got called back because the defense called a stealth computer expert after I left.  So I was sitting in the court room behind the jury and this "expert" was a moron.  He'd say something and the jury would literally turn around and look at me.  And I'm sure my face was screaming "he's a moron who doesn't know what he's saying!"  After that was over, the bailiff told me I needed a better poker face.  I agree.

[quarks]

58 minutes ago, ginger90 said:

Prior to this case? When?

The prosecution is arguing that Josh's molestations of his sisters when he was a minor show a prior interest in CSA materials.

From their motion:

"The government anticipates that the defendant will attempt to argue at trial that he was not the individual who used the HP desktop computer to download and view child sexual abuse material and is not interested in such material.

"In light of this anticipated defense and pursuant to Federal Rules of Evidence414 and404(b),the government now provides the defendant with notice that it may seek to introduce evidence at trial that the defendant committed other acts of child molestation, as that term is defined by Rule 414."

(They then specifically mention the 2002/2003 events and Arkansas state law.)

"If introduced, the government anticipates that the evidence will consist of testimony that the defendant was investigated for, admitted to, and received counseling for touching and sexually molesting multiple minor females..."

[merylinkid]

15 hours ago, GeeGolly said:

If the case is such a slam dunk, why does the prosecution want to take a chance introducing prior bad acts?

Because there ain't no such thing as a slam dunk.   You have to have all your evidence lined up.   If you have something that you think will help even more, you add it in.   It's a fine line between making sure you have more than enough and being repetitive.   But if you start thinking "Oh I don't need that, it's a slam dunk" you are getting over confident and might screw up.   Which means he might get off.  

[Minivanessa]

15 hours ago, GeeGolly said:

If the case is such a slam dunk, why does the prosecution want to take a chance introducing prior bad acts?

 

11 minutes ago, merylinkid said:

Because there ain't no such thing as a slam dunk.

Words of wisdom there. And @quarks has quoted from the prosecution's motion to show the scenario the prosecution is preparing for. Although I believe this case is another day at the office for the prosecutors - they have plenty of other cases going including I assume other CSA cases - they aren't being lazy about it. It's also a nice shot across the defense's bow - look what we want to bring up if you try the "Some Other Dude Did It" (SODDI) defense. 

I don't know how far the judge might allow the prosecution to go into Josh's prior misbehavior, but FFS, as an ADULT in 2015 Josh made a voluntary public statement admitting to an internet-based pornography addiction. He later tried to walk it back by "editing" it - but the internet is forever.  I'd be surprised if the judge doesn't let the prosecution jam those words back down Josh's throat if the defense gives them an opening to do that. The SODDI thing, for instance. 

 

[GeeGolly]

1 minute ago, Jeeves said:

 

Words of wisdom there. And @quarks has quoted from the prosecution's motion to show the scenario the prosecution is preparing for. Although I believe this case is another day at the office for the prosecutors - they have plenty of other cases going including I assume other CSA cases - they aren't being lazy about it. It's also a nice shot across the defense's bow - look what we want to bring up if you try the "Some Other Dude Did It" (SODDI) defense. 

I don't know how far the judge might allow the prosecution to go into Josh's prior misbehavior, but FFS, as an ADULT in 2015 Josh made a voluntary public statement admitting to an internet-based pornography addiction. He later tried to walk it back by "editing" it - but the internet is forever.  I'd be surprised if the judge doesn't let the prosecution jam those words back down Josh's throat if the defense gives them an opening to do that. The SODDI thing, for instance. 

I agree there's no such thing as a slam dunk. That's kind of what I've been saying all along. But with everyone saying the Feds never lose and the evidence already places Josh at the scene of the crime, why walk that fine line between locking up a case and giving opportunities for winning an appeal?

IMO, the molestations and Ashley Madison scandals can be argued either way, just as strongly. The dots can be connected to show a pattern, but it also can be argued they're not truly the same, so the connection is a reach.

I would love for everything to come out, while Josh sits there red-faced and sweating, but I also want him in jail and staying in jail.

[Tikichick]

Had to look up what an Alford plea is.  Realized I had no idea because they are not allowed in Michigan.  That's a really good thing IMO, especially considering the mindboggling idea of that conceivably being available to predators, who are already beyond skilled at gaming society and gaming the system.  

If nothing else it seems like it would be political suicide to allow them in cases with child victims.   Stranger things have happened, but I hold out hope humanity has some absolute limits. 

[Dianaofthehunt]

^ this Michigander agrees with you!

[Minivanessa]

Just now, Tikichick said:

Had to look up what an Alford plea is.  Realized I had no idea because they are not allowed in Michigan.  That's a really good thing IMO, especially considering the mindboggling idea of that conceivably being available to predators, who are already beyond skilled at gaming society and gaming the system.  

If nothing else it seems like it would be political suicide to allow them in cases with child victims.   Stranger things have happened, but I hold out hope humanity has some absolute limits. 

I don't think prosecutors or judges like Alford pleas much at all. Assuming a prosecutor isn't being lazy, stupid, or corrupt, an Alford plea is kind of a desperate measure IMO. They believe they have charged the correct person with the correct crimes, but they see weaknesses in their case (could be an unstable key witness) and probably the defense does too, and they end up with a deal involving an Alford plea. The comforting thing from a prosecution perspective is that an Alford plea DOES create a criminal conviction, equally as much as either a straight up guilty plea or a conviction after a trial.

[lascuba]

3 minutes ago, Jeeves said:

I don't think prosecutors or judges like Alford pleas much at all. Assuming a prosecutor isn't being lazy, stupid, or corrupt, an Alford plea is kind of a desperate measure IMO. They believe they have charged the correct person with the correct crimes, but they see weaknesses in their case (could be an unstable key witness) and probably the defense does too, and they end up with a deal involving an Alford plea. The comforting thing from a prosecution perspective is that an Alford plea DOES create a criminal conviction, equally as much as either a straight up guilty plea or a conviction after a trial.

I've been meaning to ask if there's any practical difference between an Alford plea and pleading guilty. I understand the symbolic (not the exact word I'm looking for but I can't think of the right one) significance, but to me it feels like a defendant who pleads not guilty getting convicted, except they're sparing themselves a trial. Are there any important legal ramifications, either immediately or in the future?

[Churchhoney]

1 hour ago, GeeGolly said:

I agree there's no such thing as a slam dunk. That's kind of what I've been saying all along. But with everyone saying the Feds never lose and the evidence already places Josh at the scene of the crime, why walk that fine line between locking up a case and giving opportunities for winning an appeal?

IMO, the molestations and Ashley Madison scandals can be argued either way, just as strongly. The dots can be connected to show a pattern, but it also can be argued they're not truly the same, so the connection is a reach.

I would love for everything to come out, while Josh sits there red-faced and sweating, but I also want him in jail and staying in jail.

Well, but you don't necessarily bring up in trial everything that you prepare in advance. Depending on how you judge the trial to be going, you bring stuff you've prepared up -- or you don't. You just need to prepare the ground for things in case you decide that it's going to help, given how the trial is progressing. 

And if you haven't prepared something that you may judge, during trial, to be a valuable line of argument, then, depending on what it is, you either can't bring it up, or you have to bring it up in a lamer form than would be optimal. 

Just like the defense prepares for all eventualities, the prosecution also will try to prepare for all eventualities. 

Something in the trial may get said or shown that the prosecutors decide can be usefully countered by the comparison between Josh's real-life CSA as a teen and his quest to view other people's videotaped CSA as an adult.

To give a dumb example, suppose defense testimony or documents seem to be convincing the jury that a father of seven small children who doesn't sexually abuse those children is clearly a person who has no interest in the sexual abuse of children and thus never would have downloaded and viewed those CSA videos..... In that case, as a prosecutor, one possible way to counter that argument might be to show that, in fact, the defendant has sexually abused children in the past for his own gratification and done it more than once and to more than one child and to a pretty darned young child at that. .....So if you had evidence of that, you might well want to prepare the ground for using it -- even though you don't know for sure that you would in the actual trial. 

Everything both sides are doing at this point is trying to make sure they're prepared as well as possible for whatever happens during the trial, including for whatever arguments the other side might make. 

If this weren't the trial of a "famous" person, we'd probably never know what stuff either the defense or the prosecution is doing to prepare, so we wouldn't be sitting around critiquing the pre-trial prep of the lawyers on both sides. 😁 We'd only ever know what things actually got brought up at trial -- if that. 

By the way, that's a big downside to your much-sought-after fame, Duggars! The whole world knowing about and -- for months -- discussing all sorts of stuff you really really don't want to see the light of day. Live by the fame, die by the fame, Duggs. 

I'd guess that many prosecutors and defense attorneys would rather have most of their trials be of non famous people. Although there certainly are lawyers who crave making a lot of "news" like this. 

Edited November 10, 2021 by Churchhoney

[Ohiopirate02]

1 hour ago, merylinkid said:

Because there ain't no such thing as a slam dunk.   You have to have all your evidence lined up.   If you have something that you think will help even more, you add it in.   It's a fine line between making sure you have more than enough and being repetitive.   But if you start thinking "Oh I don't need that, it's a slam dunk" you are getting over confident and might screw up.   Which means he might get off.  

Yep.  I was on a jury for a drug case, and the prosecution declined having the evidence fingerprinted before trial because they thought it was a slam dunk.  Some of my fellow jurors were displeased with this and let the prosecutor know after the trial.  The supposed confession from the defendant was not as convincing as the cops and prosecutors thought.  We did find the defendant guilty because the evidence seized could only have come from a drug dealer** and Ohio law allowed us to make that conclusion.  I want the prosecutors in Josh's case to use everything they can to nail his ass.  

 

**Rather large bag of cocaine, dirty spoon and scale, baggies, and a large wad of cash.  Also in Ohio, the evidence is brought back to the jury room during deliberation.  We did all closely examine the evidence before deliberating.  I refer to this as the time I legally got to hold a big bag of cocaine.

[Tikichick]

43 minutes ago, lascuba said:

I've been meaning to ask if there's any practical difference between an Alford plea and pleading guilty. I understand the symbolic (not the exact word I'm looking for but I can't think of the right one) significance, but to me it feels like a defendant who pleads not guilty getting convicted, except they're sparing themselves a trial. Are there any important legal ramifications, either immediately or in the future?

Civil liability probably comes into play.   That is the reason cited here when no contest pleas are taken.

[Zella]

2 hours ago, GeeGolly said:

with everyone saying the Feds never lose

Well, I wouldn't go so far as to say the feds never lose. But statistically, they really do almost never lose. The stats I'm pulling from are for a couple of years ago (2018), but they're pretty stable year by year. 90% of defendants in federal cases went ahead and pleaded guilty before a trial. Of the 2% who went to trial, only a small percentage of them were acquitted. So, out of nearly 80,000 federal defendants in 2018, only 320 people were acquitted. You actually stand a better chance of having the charges dismissed before a trial (the remaining 8%), but even then, the bus has already left the station on that for Josh. 

https://www.pewresearch.org/fact-tank/2019/06/11/only-2-of-federal-criminal-defendants-go-to-trial-and-most-who-do-are-found-guilty/

It's true that there's a small chance Josh will be acquitted. The prosecutors may shit the bed, the jury may be some of the dumbest, most gullible people who ever lived. But overall I like the feds' odds. There's nothing to suggest the prosecution is desperate. The evidence we know about is pretty damning, and they've shown themselves to be diligent and competent in the case. The defense attorneys' motions suggest they know Josh is one guilty motherfucker and that their intended defense of him is pretty pathetic. The judge has not been impressed with the defense motions. 

So, when it comes to down to whether Josh is going to spend some time in prison, I feel pretty comfortable saying that yes he almost certainly will. Statistically, it's not guaranteed--nothing is. But those are very good odds and nothing suggests this is a weak case, which would automatically render it likely to lead to acquittal. 

Edited to add: And apparently a not insignificant number of those acquittals come from bench trials. I don't see a bench trial going very well for Josh, but the fact this is going to a jury also statistically renders it even more likely he's being found guilty. 

Edited November 10, 2021 by Zella

[Tikichick]

31 minutes ago, Ohiopirate02 said:

Yep.  I was on a jury for a drug case, and the prosecution declined having the evidence fingerprinted before trial because they thought it was a slam dunk.  Some of my fellow jurors were displeased with this and let the prosecutor know after the trial.  The supposed confession from the defendant was not as convincing as the cops and prosecutors thought.  We did find the defendant guilty because the evidence seized could only have come from a drug dealer** and Ohio law allowed us to make that conclusion.  I want the prosecutors in Josh's case to use everything they can to nail his ass.  

 

**Rather large bag of cocaine, dirty spoon and scale, baggies, and a large wad of cash.  Also in Ohio, the evidence is brought back to the jury room during deliberation.  We did all closely examine the evidence before deliberating.  I refer to this as the time I legally got to hold a big bag of cocaine.

What was the Prosecutor's response regarding the fingerprinting comments?   It's actually surprising sometimes that it's not so straightforward to find fingerprints as is assumed.   Quite often what's found is partials, and frequently not partials that can be directly identified to anyone.

Moreso for things like DNA, but sometimes this does apply to fingerprints as well, law enforcement and the prosecution have to be very strategic what evidence is forwarded for analysis due to cost constraints.   It blew my mind to find out that this even applies to major murder trials.   People assume things operate much like the OJ Simpson trial with the trail of blood drops, but that is very much an aberration from the norm.   It's exactly how thousands of rape kits sat unanalyzed in an evidence room for literally years before it became widely known publicly and there was a huge outcry -- and eventually arrangements were made to start addressing that situation.    

[Ohiopirate02]

1 minute ago, Tikichick said:

What was the Prosecutor's response regarding the fingerprinting comments?   It's actually surprising sometimes that it's not so straightforward to find fingerprints as is assumed.   Quite often what's found is partials, and frequently not partials that can be directly identified to anyone.

Moreso for things like DNA, but sometimes this does apply to fingerprints as well, law enforcement and the prosecution have to be very strategic what evidence is forwarded for analysis due to cost constraints.   It blew my mind to find out that this even applies to major murder trials.   People assume things operate much like the OJ Simpson trial with the trail of blood drops, but that is very much an aberration from the norm.   It's exactly how thousands of rape kits sat unanalyzed in an evidence room for literally years before it became widely known publicly and there was a huge outcry -- and eventually arrangements were made to start addressing that situation.    

Taking this one over to Small Talk.  

[quarks]

20 minutes ago, GeeGolly said:

I agree there's no such thing as a slam dunk. That's kind of what I've been saying all along. But with everyone saying the Feds never lose and the evidence already places Josh at the scene of the crime, why walk that fine line between locking up a case and giving opportunities for winning an appeal?

IMO, the molestations and Ashley Madison scandals can be argued either way, just as strongly. The dots can be connected to show a pattern, but it also can be argued they're not truly the same, so the connection is a reach.

I would love for everything to come out, while Josh sits there red-faced and sweating, but I also want him in jail and staying in jail.

But even if Josh has the resources for the appeals process - and it's not clear that he does - winning at appeal does not mean that he will be set free.  It means that the case will be sent back to a lower court for another trial - and will need to wait in jail or do another period of supervised home confinement while waiting for that trial.

So the prosecution can either:

1. Not counter the defense claim that Josh, as the godly father of seven kids who uses a picture of his wife and family as his screensaver, has no interest in CSA material and therefore was not the person who downloaded the CSA. 

2. At least try to counter that claim (assuming the judge allows them to enter this evidence) with evidence of prior allegations, at the risk of maybe needing a second trial.

[Tdoc72]

10 hours ago, Tikichick said:

Had to look up what an Alford plea is.  Realized I had no idea because they are not allowed in Michigan.  That's a really good thing IMO, especially considering the mindboggling idea of that conceivably being available to predators, who are already beyond skilled at gaming society and gaming the system.  

If nothing else it seems like it would be political suicide to allow them in cases with child victims.   Stranger things have happened, but I hold out hope humanity has some absolute limits. 

I, too, seriously dislike the Alford plea. If you’re into true crime, Ann Rule’s book Heart Full of Lies is a really good book. The murderess and the Alford plea will infuriate you. (https://www.amazon.com/Heart-Full-Lies-Story-Desire/dp/0743410130/ref=nodl_)

[andromeda331]

12 hours ago, merylinkid said:

Because there ain't no such thing as a slam dunk.   You have to have all your evidence lined up.   If you have something that you think will help even more, you add it in.   It's a fine line between making sure you have more than enough and being repetitive.   But if you start thinking "Oh I don't need that, it's a slam dunk" you are getting over confident and might screw up.   Which means he might get off.  

Sad but true. How many trials where its so obvious that the defendent is guilty. Evidence, witnesses, etc. And the jury still finds him or her not guilty. 

[quarks]

The government has responded to some of the recent defense motions. Once again Reddit has links.

1. The first one says that the government subpoenaed business records from the car lot in April 2020. Interestingly, the specific person they subpoenaed was Travis Story, the agent on record, who is also one of Josh Duggar's attorneys.

As far as I can tell, the government was only requesting employment records. I assume this was to see who was actually working at the car lot at the time. 

I should note that the earlier motions/responses from both sides suggested that these employment records may not be entirely accurate. It sounds to me like the government is now concerned that the defense may use these inaccuracies as part of their "someone else did it!" argument. 

I'm guessing the government thinks that this might come up at the trial.

https://www.dropbox.com/s/1a8vxkcouusxhok/UNITED STATES’ RESPONSE TO DEFENDANT’S MOTION IN LIMINE TO PROHIBIT THE GOVERNMENT FROM ATTRIBUTING THE ACT OF PRODUCTION OF CORPORATE RECORDS TO DUGGAR.pdf?dl=0

2. The second one is a response to the defense's ongoing attempts to get some of Josh Duggar's initial statements thrown out. The government says that the sections the defense wants thrown out won't be used in the trial, but, they might come up in cross-examination so the government wants this motion tossed out anyway.

https://www.dropbox.com/s/v3u0acjo6tk5rwx/UNITED STATES’ RESPONSE TO DEFENDANT’S MOTION IN LIMINE TO EXCLUDE REFERENCE TO DEFENDANT’S STATEMENTS DURING NON-CUSTODIAL INTERVIEW.pdf?dl=0

3. The third discusses the whole "improper opinions" about the CSA material. The government says they will not be introducing evidence that the CSA on Josh's computer is "worse" than other CSA, and otherwise, wants to know exactly what the defense is talking about.

https://www.dropbox.com/s/edj3dba7w03s0qc/UNITED STATES’ RESPONSE TO DEFENDANT’S MOTION IN LIMINE TO EXCLUDE OPINION TESTIMONY.pdf?dl=0

4. The fourth is about the Ashley Madison stuff again. The government says they addressed that in their earlier motion, but also, if Josh takes the stand, they want to question his character and his truthfulness, and would also like to question other witnesses about Josh's truthfulness, and would like to bring the Ashley Madison stuff up as an example of Josh's lack of truthfulness.

This all seems to be a really, really good reason for Josh not to take the stand, but that's me.

https://www.dropbox.com/s/6egyq48ijzdx789/UNITED STATES’ RESPONSE TO DEFENDANT’S MOTION IN LIMINE TO EXCLUDE EVIDENCE OF ALLEGATIONS CONCERNING ADULTERY OR A PRIOR SO CALLED “ADDICTION” TO ADULT PORNOGRAPHY.pdf?dl=0

5. The fifth one is about sequestering the witnesses. 

The main issue here seems to be tucked away in a footnote - one of the government witnesses is also the case agent, and the prosecution wants the case agent to sit with the attorneys during the trial as a representative of the United States government - that is, not sequestered.

https://www.dropbox.com/s/gh3bx614fp3zpqb/GOVERNMENT’S RESPONSE TO DEFENDANT’S MOTION IN LIMINE TO SEQUESTER WITNESSES PURSUANT TO FEDERAL RULE OF EVIDENCE 615.pdf?dl=0

[Heathen]

12 hours ago, Tikichick said:

Had to look up what an Alford plea is.  Realized I had no idea because they are not allowed in Michigan.  That's a really good thing IMO, especially considering the mindboggling idea of that conceivably being available to predators, who are already beyond skilled at gaming society and gaming the system.  

If nothing else it seems like it would be political suicide to allow them in cases with child victims.   Stranger things have happened, but I hold out hope humanity has some absolute limits. 

I'm a Michigan native and current resident. IMO, an Alford plea is a legal tool that should be allowed in all states. Remember the West Memphis Three? They weren't guilty and it's mendacity to pretend they were in light of the overwhelming evidence including DNA, but an Alford plea got innocent men off death row and out of prison. An innocent man spending one day in prison is one day too many.

Topic: Ofsmuggar has had home births, a home toilet birth, and a birthing center birth (at least one). I wonder if she had a home birth this time or opted for somewhere else. I also wonder if Jill was present. I'm assuming M7 has been born, of course. 

Edited November 11, 2021 by Heathen
To correct a grammatical error

[emmawoodhouse]

I'm sure M7 is here by now. Anna probably used Teresa Fedosky before her recent arrest (her inaction ended in the death of her own grandchild).

[Heathen]

1 minute ago, emmawoodhouse said:

I'm sure M7 is here by now. Anna probably used Teresa Fedosky before her recent arrest (her inaction ended in the death of her own grandchild).

What happened to the grandchild? 

[emmawoodhouse]

4 minutes ago, Heathen said:

What happened to the grandchild? 

 

[SMama]

20 minutes ago, emmawoodhouse said:

I'm sure M7 is here by now. Anna probably used Teresa Fedosky before her recent arrest (her inaction ended in the death of her own grandchild).

When was Fedosky arrested, has she posted bail?

[Heathen]

14 minutes ago, emmawoodhouse said:

 

Not that licensing for lay "midwives" in Arkansas is all that arduous. She probably printed her "license" at home from her own computer. 

I hope the memory of her lost granddaughter haunts her every waking minute. Bitch. 

[emmawoodhouse]

1 hour ago, SMama said:

When was Fedosky arrested, has she posted bail?

I don't recall. I don't even remember where I heard the story, as I don't have a Reddit account.

eta Read most of that Reddit thread, and arrest wasn't mentioned. I don't know where I heard that part, but I couldn't find anything.

Edited November 11, 2021 by emmawoodhouse

[Sile]

1 hour ago, Heathen said:

I'm a Michigan native and current resident. IMO, an Alford plea is a legal tool that should be allowed in all states. Remember the West Memphis Three? They weren't guilty and it's mendacity to pretend they were in light of the overwhelming evidence including DNA, but an Alford plea got innocent men off death row and out of prison. An innocent man spending one day in prison is one day too many.

Topic: Ofsmuggar has had home births, a home toilet birth, and a birthing center birth (at least one). I wonder if she had a home birth this time or opted for somewhere else. I also wonder if Jill was present. I'm assuming M7 has been born, of course. 

In the case of the West Memphis Three, I firmly believe that the State would only offer Alford pleas because then none of them could sue the State, City, etc. because it remained as a conviction.

I think it's kind of common to be used for that purpose post conviction. Prior to sentence, it might be if they're just a little bit shaky on the jury,   When it's an obviously guilty party such as Duggar, there's no point in it.

[quarks]

The defense has responded to the government's motions. These are a lot more interesting. Again, links are from Reddit:

1. The first one is (again) about Witness 1 (William Mize) and Witness 3 (Randall Berry) - aka two of the three people that the defense is desperately trying to blame for the alleged crimes. 

The defense is complaining that the government is trying to prevent Josh Duggar from, in their words, "establishing that other people had access and opportunity to commit the acts at issue and by emphasizing that law enforcement failed to effectively investigate these crimes." 

I....kinda feel that the government's entire job here is to establish that other people did NOT have access and opportunity to commit the acts at issue. Also, if I may, Duggar defense attorneys, one of these "other people" IS ONE OF YOUR OWN CLIENTS, and this ongoing complaint that the government didn't do enough to investigate one of your own clients is just not a great look. But moving on!

In earlier motions, the defense said that Mize admitted to watching pornography. The government said that Mize bought cars from Josh Duggar, but did not have access to the passwords and was at a Walmart at the time. The defense is now saying that Mize didn't just buy cars from Josh; he at one point broke into the car lot office, and that a single receipt from Walmart is not an alibi. 

Thing is, not to dampen all the fun here, but Walmart may very well still have security footage that can be subpoenaed. Also, the government has requested full bank records on Mize, presumably to establish his movements on that date. 

The defense is also arguing that Randall Berry has been less than truthful with law enforcement authorities (and, apparently, defense counsel) and that his statements do not match up with the car lot employment records. Berry is the witness that was earlier identified as having no computer skills.

So from this, the defense concludes that they should be able to ask why law enforcement didn't fully investigate these guys.

Thing is, defense, when law enforcement did go back to investigating these guys, it did not go well for you. So I'm not sure if this is the safest line of inquiry for you.

Anyway, the defense is also annoyed that the government didn't investigate Caleb Williams even though - and I want everyone to hold their shock here - Caleb Williams used the car lot computer to print labels.

A footnote adds that the HP computer belongs to the business, and not to Josh Duggar.

https://www.dropbox.com/s/lispg561ilgm3vr/DEFENDANT’S RESPONSE IN OPPOSITION TO THE GOVERNMENT’S MOTION IN LIMINE TO “EXCLUDE THIRD PARTY GUILT EVIDENCE”.pdf?dl=0

2. This one is about the Ashley Madison stuff. The defense is arguing that it shouldn't be admitted since it's prejudicial and because watching adult porn - and admitting to it - isn't a crime.

https://www.dropbox.com/s/74yh75aom95npng/DEFENDANT’S RESPONSE IN OPPOSITION TO THE GOVERNMENT’S MOTION IN LIMINE TO “ADMIT PRIOR STATEMENTS BY DEFENDANT”.pdf?dl=0

3. This one is about the prior molestations. The defense wants to exclude this for five different reasons:

a. Including this would require having mini-trials within this trial to see if this alleged behavior occurred.

b. The government has apparently not followed full discovery procedures for these prior molestations.

c. admitting this risks confusing the jury

d. these charges were remote in time and don't prove a pattern of behavior

e. In Touch had no right to find out about any of this in the first place.

https://www.dropbox.com/s/jtu87qt031bpdvb/DEFENDANT’S RESPONSE IN OPPOSITION TO THE GOVERNMENT’S MOTION IN LIMINE TO “ADMIT EVIDENCE OF THE DEFENDANT’S PRIOR CHILD MOLESTATION CONDUCT”.pdf?dl=0

4. And this one is just asking that the whole trademark question (about the Made in China/HP mark on the computer) be settled in court:

https://www.dropbox.com/s/54mqk3q8nmuuy4d/DEFENDANT’S RESPONSE TO THE GOVERNMENT’S MOTION IN LIMINE “CONCERNING TRADEMARK INSCRIPTIONS”.pdf?dl=0

 

 

 

[all fall down]

Thanks for all those updates @quarks

I am anxious to see how the court rules on these motions. 

19 Days (until the trial) and Counting. 

[merylinkid]

8 hours ago, quarks said:

The first one says that the government subpoenaed business records from the car lot in April 2020. Interestingly, the specific person they subpoenaed was Travis Story, the agent on record, who is also one of Josh Duggar's attorneys.

As far as I can tell, the government was only requesting employment records. I assume this was to see who was actually working at the car lot at the time. 

I should note that the earlier motions/responses from both sides suggested that these employment records may not be entirely accurate. It sounds to me like the government is now concerned that the defense may use these inaccuracies as part of their "someone else did it!" argument. 

How the hell is he allowed to be part of the case.   It's HIS signature on the affidavit attesting these are TRUE and CORRECT copies of the records kept in the ordinary course of business.   In other words, a witness.   Also, are they really going to argue that the guy sitting there AS A LAWYER did not produce all the records, or tried to hide some of them?  This is a can of worms the defense wants to NOT fuck with.

 

8 hours ago, quarks said:

The fifth one is about sequestering the witnesses. 

The main issue here seems to be tucked away in a footnote - one of the government witnesses is also the case agent, and the prosecution wants the case agent to sit with the attorneys during the trial as a representative of the United States government - that is, not sequestered.

I'm on the defense side here.   The "case agent" is not a party.   he's a witness.   PERIOD.   Sequestered means sequestered.   he doesn't get to sit through the trial and then get to testify and have his testimony influenced by things he heard at trial.   THIS one, I will give the Defense.   Government is wrong.    The government has a strong case why play shenanigans like this?   

 

[GeeGolly]

Could of all the defense's focus on outside access to the computer be because Josh is insisting he his innocent? And Josh is pushing this narrative? How does that relationship work? If a defendant sticks with one story, do the lawyers need to offer a defense including that angle?

Like even the last guy, Caleb. I'm guessing he prints the information stickers that are in car windows. If he really uses Josh's computer to do this, they can look at the computer to see if he used it the same day as the download.

Or are they trying to say that somehow one of these guys had password access and did the download remotely? And if it was a remote download, wouldn't the computer show that?

Edited November 11, 2021 by GeeGolly

[Heathen]

7 hours ago, Sile said:

In the case of the West Memphis Three, I firmly believe that the State would only offer Alford pleas because then none of them could sue the State, City, etc. because it remained as a conviction.

I think it's kind of common to be used for that purpose post conviction. Prior to sentence, it might be if they're just a little bit shaky on the jury,   When it's an obviously guilty party such as Duggar, there's no point in it.

I disagree, based on Jason Baldwin's reported comments at the time of the plea. But to each her own. 

Topic: Hell, I don't care. I am tired already and I have to work a twelve-hour shift tonight. Pray for me (haha). 

 

[Minivanessa]

Generally in a criminal trial the prosecution is allowed to designate an individual to sit at counsel table throughout the trial although that person is also a witness. Federal Rule of Evidence 615 says: 

Quote

 

At a party’s request, the court must order witnesses excluded so that they cannot hear other witnesses’ testimony. Or the court may do so on its own. But this rule does not authorize excluding:

(a) a party who is a natural person;

(b) an officer or employee of a party that is not a natural person, after being designated as the party’s representative by its attorney;

(c) a person whose presence a party shows to be essential to presenting the party’s claim or defense; or

(d) a person authorized by statute to be present.

 

Here's some commentary from the Senate Judiciary Committee:

Quote

 

Many district courts permit government counsel to have an investigative agent at counsel table throughout the trial although the agent is or may be a witness. The practice is permitted as an exception to the rule of exclusion and compares with the situation defense counsel finds himself in—he always has the client with him to consult during the trial. The investigative agent's presence may be extremely important to government counsel, especially when the case is complex or involves some specialized subject matter. The agent, too, having lived with the case for a long time, may be able to assist in meeting trial surprises where the best-prepared counsel would otherwise have difficulty. Yet, it would not seem the Government could often meet the burden under rule 615 of showing that the agent's presence is essential. Furthermore, it could be dangerous to use the agent as a witness as early in the case as possible, so that he might then help counsel as a nonwitness, since the agent's testimony could be needed in rebuttal. Using another, nonwitness agent from the same investigative agency would not generally meet government counsel's needs.

This problem is solved if it is clear that investigative agents are within the group specified under the second exception made in the rule, for “an officer or employee of a party which is not a natural person designated as its representative by its attorney.” It is our understanding that this was the intention of the House committee. It is certainly this committee's construction of the rule.

 

I spent the first few years of my law practice as a public defender in state court. It was routine for the prosecution to designate what IIRC we called perhaps informally an "advisory witness" to sit with the prosecutors throughout a trial. Just one, though. Usually it was the LEO who knew the most about the case. (I don't think they always did it especially in misdemeanor or low-level simple felony cases. It's been a few decades(!) ago so my memory's not sharp on all the deets by now.) TBH it never occurred to me that there could be a different practice in federal criminal trials. YMMV.

ETA: I didn't read all the material about Josh's case motions and apologize if this was laid out in detail in that material. 

Edited November 11, 2021 by Jeeves

[merylinkid]

7 hours ago, quarks said:

The defense is now saying that Mize didn't just buy cars from Josh; he at one point broke into the car lot office, and that a single receipt from Walmart is not an alibi. 

Sooo the car lot had a break in?   Was this reported to police AT THE TIME?  Or is this the first time we are hearing about this "break in?"   Also the guy broke in  to do what?   Somehow access the PARTITIONED computer and watch child porn?    Now people break in to places all the time for weird reasons.   But to access someone else's computer to watch child porn might be a little outside the realm of probability.

[Rootbeer]

22 hours ago, Churchhoney said:

Well, but you don't necessarily bring up in trial everything that you prepare in advance. Depending on how you judge the trial to be going, you bring stuff you've prepared up -- or you don't. You just need to prepare the ground for things in case you decide that it's going to help, given how the trial is progressing. 

And if you haven't prepared something that you may judge, during trial, to be a valuable line of argument, then, depending on what it is, you either can't bring it up, or you have to bring it up in a lamer form than would be optimal. 

Just like the defense prepares for all eventualities, the prosecution also will try to prepare for all eventualities. 

Something in the trial may get said or shown that the prosecutors decide can be usefully countered by the comparison between Josh's real-life CSA as a teen and his quest to view other people's videotaped CSA as an adult.

To give a dumb example, suppose defense testimony or documents seem to be convincing the jury that a father of seven small children who doesn't sexually abuse those children is clearly a person who has no interest in the sexual abuse of children and thus never would have downloaded and viewed those CSA videos..... In that case, as a prosecutor, one possible way to counter that argument might be to show that, in fact, the defendant has sexually abused children in the past for his own gratification and done it more than once and to more than one child and to a pretty darned young child at that. .....So if you had evidence of that, you might well want to prepare the ground for using it -- even though you don't know for sure that you would in the actual trial. 

Everything both sides are doing at this point is trying to make sure they're prepared as well as possible for whatever happens during the trial, including for whatever arguments the other side might make. 

If this weren't the trial of a "famous" person, we'd probably never know what stuff either the defense or the prosecution is doing to prepare, so we wouldn't be sitting around critiquing the pre-trial prep of the lawyers on both sides. 😁 We'd only ever know what things actually got brought up at trial -- if that. 

By the way, that's a big downside to your much-sought-after fame, Duggars! The whole world knowing about and -- for months -- discussing all sorts of stuff you really really don't want to see the light of day. Live by the fame, die by the fame, Duggs. 

I'd guess that many prosecutors and defense attorneys would rather have most of their trials be of non famous people. Although there certainly are lawyers who crave making a lot of "news" like this. 

This.  I've never been involved in a criminal case, but have been a defendant in some civil ones.  The idea is to be ready for anything at trial.  You want to go into court with every weapon at your disposal, nothing off the table.  The prosecution has got to take every piece of information that could help to win the case with them as part of their armamentarium for the battle.  Just because they're asking for certain pieces of information to be available while the defense is trying to block them; doesn't mean they necessarily expect that they will need to use that evidence in the actual trial.  My limited experience also included these sorts of small details which were ready to be used to counter the defense; most of it never got used, but we were ready.

I was once supoenaed as a witness in a murder trial.  I didn't get called, my testimony was not to the specifics of the actual murder, but part of the defense' effort to provide an alternative explanation.  Ultimately, the defense didn't use me, IMO, because it was pretty much a slam dunk that the guy did it and no amount of muddying the waters was going to help.  He got a retrial on appeal, I was called again, never testified and he was convicted again.  

[Tikichick]

1 hour ago, GeeGolly said:

Could of all the defense's focus on outside access to the computer be because Josh is insisting he his innocent? And Josh is pushing this narrative? How does that relationship work? If a defendant sticks with one story, do the lawyers need to offer a defense including that angle?

Like even the last guy, Caleb. I'm guessing he prints the information stickers that are in car windows. If he really uses Josh's computer to do this, they can look at the computer to see if he used it the same day as the download.

Or are they trying to say that somehow one of these guys had password access and did the download remotely? And if it was a remote download, wouldn't the computer show that?

No, the Defense does not need to give an alternate theory of anything the Prosecution presents.  Part of the protections of the Fifth Amendment is that the accused can remain silent and the defense is not required to even put forth a case whatsoever.   

Obviously most cases include a defense where at least the Prosecution's evidence is challenged and many times the Defense points out alternative possibilities of the crime being committed by someone else.   Theoretically the Defendant and his lawyer could elect to sit silent throughout the entire case, not question any of the Prosecution's witnesses or bring any themselves and simply respond to legal and administrative inquiries from the Court.

[Tikichick]

11 hours ago, Heathen said:

I'm a Michigan native and current resident. IMO, an Alford plea is a legal tool that should be allowed in all states. Remember the West Memphis Three? They weren't guilty and it's mendacity to pretend they were in light of the overwhelming evidence including DNA, but an Alford plea got innocent men off death row and out of prison. An innocent man spending one day in prison is one day too many.

Topic: Ofsmuggar has had home births, a home toilet birth, and a birthing center birth (at least one). I wonder if she had a home birth this time or opted for somewhere else. I also wonder if Jill was present. I'm assuming M7 has been born, of course. 

Taking this over to Small Talk.

[quarks]

1 hour ago, merylinkid said:

How the hell is he allowed to be part of the case.   It's HIS signature on the affidavit attesting these are TRUE and CORRECT copies of the records kept in the ordinary course of business.   In other words, a witness.   Also, are they really going to argue that the guy sitting there AS A LAWYER did not produce all the records, or tried to hide some of them?  This is a can of worms the defense wants to NOT fuck with.

 

From what I can tell, this is part of the current defense strategy to try to separate the business from Josh, and also the computer from Josh, as part of the continuing argument that although, yes, the HP computer had CSA material on it (and pictures of Anna and the M kids) it wasn't Josh's computer, it was the company computer! And the agent on record for the company is....Oh. One of Josh's defense attorneys! Interesting.

I think they are also bracing for some serious questions about the discrepancies with the pay stubs/starting dates of Randall Berry. 

I will note that both sides have been indicating since July that something is seriously off with the business records, to the point of hinting that these records have been forwarded to other authorities. The defense is currently using this to try to cast doubt on Randall Berry, which, ok, fair enough (it does sound as if Berry has changed his testimony more than once).  But I also think it has the potential to backfire on the defense, since Berry wasn't the one keeping the business records. Josh was, and I think that focusing on this runs the real risk for the defense of casting doubt on Josh's probity/truthfulness.

1 hour ago, GeeGolly said:

Or are they trying to say that somehow one of these guys had password access and did the download remotely? And if it was a remote download, wouldn't the computer show that?

The defense is indeed trying to claim that someone did not need to be sitting at the HP computer to download CSA material into it and could have done this remotely. 

I have questions.

31 minutes ago, merylinkid said:

Sooo the car lot had a break in?   Was this reported to police AT THE TIME?  Or is this the first time we are hearing about this "break in?"   Also the guy broke in  to do what?   Somehow access the PARTITIONED computer and watch child porn?    Now people break in to places all the time for weird reasons.   But to access someone else's computer to watch child porn might be a little outside the realm of probability.

This is the first time I've heard about a break in. It wasn't mentioned in the first motion about these cell phones/witnesses, where the defense just said that Mize admitted to watching adult pornography on his phone, not that he was running around breaking into car lot sheds in between trips to Walmart.

(Incidentally, although I don't think this will be coming up at trial, yes, I do see the issues with the defense attempting to insinuate in that motion that Mize had to be a suspect because OOOH LOOK HE WATCHED PORN, and their current argument that the prosecution can't mention the Ashley Madison stuff because there's no connection between legally watching adult porn and illegally downloading CSA stuff. But moving on.) 

And the only police reports I've heard about are the police reports about the nearby car accident (which the prosecution is using to place Josh at the scene of the crime) and of course the report on the raid on the car lot. 

It's of course very possible that some sort of police report exists, and we just haven't heard about any of this before now. But I am inclined to think that if one does exist, it would have been mentioned before this, the same way Randall Berry's conflicting testimony has been mentioned before this this.  Especially since an earlier mention of a break-in/police report would, I think, have helped the defense with their "why didn't you search the cell phones of potential suspects" motion. I can readily understand why federal authorities didn't search the cell phone of someone who was just buying cars from Josh. Someone who was breaking into the car lot...well. I can see the argument for searching that phone.

All of which makes me think that this may be a dangerous line for them to pursue, and not just because the feds are now working to find more verification of Mize's alibi. Because this whole breaking into the car lot accusation just raises more questions than it answers. Including, ok, were the police called? If so, why not? And why didn't Josh mention this break-in to federal agents during the raid?