I may be the last one here to get it, but I finally understand the computer stuff and why its relevant.
1. Nurmi's motion is predicated on both misconduct (tampering with HD) and on what he essentially is calling concealment of evidence/false testimony based on that evidence. The evidence he's referring to is
on the computer, so actually, imo, all the
stuff of the past weeks is relevant.
Nurmi is saying that JM falsely called CMJA a liar because she claimed
and a virus, and that Samuels was unfairly discredited for backing her
claim.
His argument is that CMJA received an unfair trial because there was
on the computer and the State's denial of that reality was prejudicial enough to CMJA to warrant overturning the verdict, or at least taking the DP off the table.
2. Three relevant questions
**Is the State guilty of deliberate misconduct? Short answer, no, for every obvious reason.
*Was there
on TA's computer? The answer to that largely comes down to how one defines "on the computer." Both sides examined TA's viewing HISTORY for the first trial, using an exact image of TA's HD. Neither side found any history of TA viewing
, nor of any
being downloaded. I think neither side analyzed TA's registery.
The State did not interfere in any way with the DT's examination of the HD image for the first trial, nor had the image the DT used been altered in any way other than whatever was modified on June 10 2008 when the HD was woken by Flores.
on the computer was a non issue until CMJA went pro per again and directed her minions to recheck the HD. What HD image or clone or whatever BN used to search for
remains a mystery because he still hasn't turned it over.
What BN claims, however, is that TA had a huge amount of
on his computer. The
he claims to have found is in the REGISTRY, not in the viewing history. BN claims the reason why there is no
in the viewing history is because TA used an abnormally large number of "scrubbers" to erase his
viewing tracks.
So, BN says ignore the viewing history and focus on the registry. The State concedes there are
links in the registry, but states that the links could be/are a result of viruses, and that there is no evidence, even in the registry, that TA actually searched for
on his computer.
Imo, the whole long tussle about HD's is irrelevant to the issue of alleged misconduct. As Wilmott herself said, the original image of TA's HD is entirely intact and unmodified, as is Dworkin's 2009 image. The original evidence , then, was neither modified or destroyed. Not by the State and not by BN.
Again, the only modification to TA's HD happened on June 10, 2008, when Flores woke it up by tapping on the space bar. I don't know if BN is alleging he can figure out what was modified at that time, in the 45 minutes or so before forensics came and shut it down. Whatever was or was not modified, the changes were accidental. Not even negligent, because Flores did not violate any protocol by waking it up.
And in terms of the DT's charges of
on the computer.... BN claims he found the
anyway, even after June 10 modifications, so? No harm no foul on that count either.
**Was CMJA prejudiced by the " exclusion" of
in registry evidence during her first trial? Somehow I think we'll see that become an appeals issue, but it isn't for JSS to decide.
Her decision to grant or deny the motion to dismiss the DP can only be based on whether or not the State deliberately tampered with evidence. It did not. Motion denied.
(Neither side was aware of whatever was in the registry, and no tampering had taken place to prevent the DT from searching and finding what was in the registry. The DT simply chose not to look at the registry. Their call. Their responsibility. Their deflection by blaming the State for their own choice).
Whether or not she'll allow this sentencing phase to go down a deep and irrelevant rabbit hole of dueling IT experts discussing HD's and clones and scrubbers and the victim's internet viewing history is anyone's guess. I guess, sadly, that she will.
