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Post by Deleted on Oct 2, 2015 13:35:22 GMT -5
Looks like Mac and Kathryn still can't get their acts together. Yesterday, MacDonald filed a motion to submit a corrected informal opening brief re: his appeal for additional DNA testing. He also submitted the corrected brief. Naturally, the court granted the motion, despite the fact that this "corrected" brief was meant to replace the original filed almost three weeks ago (i.e. Sept. 14). www.crimearchives.net/1979_macdonald/uploads/uploads.htmlMac says the content hasn't changed, and that "the original wasn't properly formatted, numbered, or spell-checked." Three weeks to "correct" a two-page brief, one that he's had almost a year to submit?? Give me a break.
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Post by kma367 on Oct 8, 2015 15:38:41 GMT -5
I loved the excuse about fax issues causing the improper formatting. Leave it to MacDonald and Kathryn to come up with another lame excuse. If the document is not properly formatted when it comes out of the computer, faxing it is not going to fix that.
ETA: I also love how they danced around the 3-year gap between Fox's 2008 decision and the filing of the IPA claim and the 5-year delay between receipt of the DNA results from AFIP and the filing of the IPA claim. Those delays were the basis of denying the timeliness of the IPA claim. They obviously don't understand that a person has to meet all of the criteria to qualify. They think a petitioner can pick and choose the criteria, or that a petitioner only has to meet some of the criteria.
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Post by Deleted on Oct 29, 2015 0:25:31 GMT -5
The government's thirty-two page IPA response brief was filed on 10/27/15. It meticulously takes apart Kathryn's two page brief. The most telling excerpts from the government's brief are as follows. "The district court properly denied MacDonald's motion for new DNA testing under the Innocence Protection Act because it was untimely. The district court found that the motion was filed 82 months after the passage of the Act and 66 months after the conclusion of court-ordered DNA testing that MacDonald requested in 1997..." "At the time MacDonald requested testing, Nuclear DNA technology was applicable, it was available, and MacDonald was on notice of the existence of the blood evidence presented at trial, and its significance. PCR-based Nuclear DNA testing was available prior to 1997, and Short Tandem Repeat typing likely was also. Each of these could have been used to discriminate between DNA profiles present in the bloodstain evidence. Additionally, MacDonald could have requested then-available mtDNA testing to exclude MacDonald family members from the blood evidence, but he did not." "Nor would "touch" DNA appear to have any application to a determination as to the contributor of a particular bloodstain." The government also pointed out that the defense never questioned the blood evidence at trial and that the reason they waited so long to file the IPA motion was for tactical reasons. The reasons stem from the distinct possibility that any "new" DNA testing would confirm that... - The footprint was formed in Colette's blood - The 4 bisected blood stains on inmate's pajama top were formed in Colette's blood - The 5 fabric impressions found on the blue bedsheet were formed in Colette's blood - Kimmie's blood was found on the blue bedsheet AND on inmate's pajama top I remain skeptical that the 4th Circuit will deny inmate additional DNA testing, but I would be estatic if they finally sided with the government. www.macdonaldcasefacts.com
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Post by Deleted on Oct 29, 2015 12:27:23 GMT -5
Considering the depth of the government's brief, I would guess that Kathryn will ask for at least one extension to file her sur-reply. Given that the defense has already admitted that the IPA request is untimely, I would assume that Kathryn is going to continue with the "manifest injustice" argument. The legal loopholes that were a part of the original IPA/2255 requests have since been closed. It's safe to say that Kathryn and Joey Z are swimming upstream in their attempts to obtain relief for a convicted triple murderer. www.macdonaldcasefacts.com
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Post by Deleted on Nov 13, 2015 5:00:57 GMT -5
Joey Z filed the informal brief on time. Yup, you heard me right. www.crimearchives.net/1979_macdonald/court/2015/2015-11-12-USCA-15-7136-doc011.pdfIMO, this brief was simply a rehash of prior defense arguments and that simply isn't going to cut it. The 4th Circuit Court basically gave Judge Fox the responsibility of deciding on the merits of the DNA/Britt claims in conjunction with the "evidence as a whole." Judge Fox did just that, yet Joey Z simply argues that Judge Fox's conclusions are wrong. Joey Z provided a few examples of decisions that were overturned due to similar evidentiary arguments, but the cited cases didn't contain one-tenth of the evidence presented by the prosecution at the 1979 trial. Joey Z attempts to combat that FACT by repeating several times over that the prosecution's case at trial was "weak." Ah, no. The prosecution presented over 1,000 evidentiary items and that was only about 60 percent of their case file. Joey Z's opinion about the strength of the prosecution's case is meaningless. The only opinions that matter are Judge Fox's and the jurors who convicted inmate in less than 7 hours. Joey Z was able to keep the case alive by convincing the 4th Circuit that Judge Fox should have ruled on the merits of the DNA/Britt claims using the 2255 as opposed to the 2244. He no longer has that legal hammer to wield, so he simply regurgitates prior defense arguments. It's important to note that past appellate courts have called these arguments "specious." Judge Fox based his decisions on the 2255 (e.g., evidence as a whole) and determined that the evidence didn't raise to the level of vacating inmate's conviction or granting him a new trial. The government will AGAIN destroy another defense brief and hopefully, the 4th Circuit Court will end this legal circus once and for all. www.macdonaldcasefacts.com
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Post by kma367 on Nov 14, 2015 0:35:50 GMT -5
Thanks for posting that, JTF. I was so busy today that I missed it. Also, your link got truncated, so I edited the post to fix it. Hope you don't mind.
I look forward to reading this tomorrow when I can stay awake.
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Post by Deleted on Nov 16, 2015 11:20:44 GMT -5
KMA: IMO, inmate's investment in Joey Z was misplaced. He basically copied and pasted prior talking points (e.g., briefs from 2009-2014) leveled by Gordon Widenhouse. You know the drill. Unsourced hairs, wax, fingerprints, and fibers equals hippie home invaders. Helena Stoeckley's ramblings somehow corroborate the unsourced evidentiary items and context/critical thought get pushed to the curb. If the 4th Circuit Court has actually read Judge Fox's 7/24/14 and 5/18/15 decisions, they will quickly realize that Joey Z is simply repeating the same arguments that failed to impress Judge Fox as being "clear and convincing" evidence of inmate's innocence. The documented record demonstrated that...
- Britt lied 27 times in his 5 affidavits
- The three unsourced hairs were not bloody and the presence of club roots indicated that the hairs were naturally shed
- The hair found in a vial containing Kristen's fingernail scrapings was the result of lab contamination
- There were several inculpatory DNA test results
- The trial evidence was strong enough to convince a jury, two district court judges, and a 4th Circuit Court that inmate was the lone criminal agent
The government cannot respond to this lame brief until the 4th Circuit decides whether to grant inmate a COA. Given the decisions put forth by this 4th Circuit Court in the past 6 years, I would be shocked if they didn't grant inmate a COA. I do not believe, however, that the 4th Circuit will grant oral arguments. Oral arguments were granted in 2011, because there was a concrete legal issue (e.g., 2244 vs 2255) to be debated whereas the parameters of Judge Fox's 2014/2015 decisions are free of such controversy. All of his decisions were under the "evidence as a whole" umbrella, so this was about the merits and nothing but the merits of the Britt/DNA issues.
www.macdonaldcasefacts.com
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Post by Deleted on Nov 16, 2015 13:27:52 GMT -5
Hey, JTF -- nice to see you here. Re: MacDonald and his never-ending requests for delays, here we go again. Having once again failed to meet a deadline set by the 4th Circuit, which dictated that MacDonald had 10 days to file a reply to the government's October 27 brief (re: appeal for additional DNA testing), Mac relies on the tried-and-true, and files a motion to extend the time for filing his informal reply brief. And of course, the 4th Circuit, to whom deadlines seem to mean little or nothing, granted the motion. Insane. www.crimearchives.net/1979_macdonald/uploads/uploads.html
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Post by Deleted on Nov 25, 2015 14:47:43 GMT -5
In essence, there are currently two issues that have yet to be decided. 1) The 4th Circuit Court has to decide whether to grant the defense a COA regarding Judge Fox's decision on the "evidence as a whole." 2) This same court has to decide whether to grant inmate additional DNA testing. IMO, the 4th Circuit will grant inmate a COA, but will eventually concur with Judge Fox's decision to deny inmate relief. Unfortunately, I think they allow additional DNA tests, but the testing will not result in a new trial. The 4th Circuit, however, will again waste taxpayer money and this case will not be resolved for another 2 years. www.macdonaldcasefacts.com
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Post by Deleted on Dec 28, 2015 10:53:02 GMT -5
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Post by kma367 on Dec 29, 2015 22:32:37 GMT -5
It doesn't appear that they've met the deadline to file the corrected brief. Perhaps Kathryn is having problems with her fax machine again.
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Post by Deleted on Oct 13, 2016 1:54:25 GMT -5
KMA: Checkout my new and improved MacDonald Case website. I created several new topics and Bunny updated the website with a new look and 19 color photographs. I would be interested to hear your take on the website.
www.macdonaldcasefacts.com
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Post by kma367 on Oct 19, 2016 23:03:19 GMT -5
Thanks, JTF. I will check it out.
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Post by kma367 on Dec 24, 2018 13:53:01 GMT -5
After 23 months (or so) since oral argument, the Fourth Circuit Court of Appeal panel has issued a 154-page decision affirming Judge Fox's denial of habeas relief. MacDonald will likely seek en banc review and then take a writ to the U.S. Supreme Court. www.ca4.uscourts.gov/opinions/157136.P.pdfkma367
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