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An almost 20-minute in-court re-enactment in which two prosecutors portrayed the state’s theory that Susan Wright restrained and then repeatedly stabbed her husband in January 2003 is a key issue in Wright’s appeal of her murder conviction. “As soon as that demonstration was completed, [prosecutors] sacrificed her right to a fair trial on the altar of high drama,” says Houston solo Brian Wice, one of two attorneys representing Wright in her appeal. Paul Doyle, a Harris County assistant DA who portrayed Wright’s husband in the re-enactment, says that Wice, a legal analyst for KPRC Channel 2 in Houston, MSNBC and Court TV, stated during his television commentary that the courtroom demonstration was fine but that Wice changed his tune after he was hired to represent Wright. Wice says he consistently said the re-enactment “made for great courtroom drama” but never said it was permissible. Stanley Schneider, Wright’s other lawyer and a partner in Houston’s Schneider & McKinney, says lead prosecutor Kelly Siegler, a Harris County assistant district attorney, tied down Doyle on a bloody mattress that the prosecutors brought into the courtroom and re-enacted the slaying of Jeffrey Wright based on a police detective’s “speculation” about what happened. According to Susan Wright’s brief, which was filed Nov. 4 with Houston’s 14th Court of Appeals, the detective who investigated the case acknowledged during his trial testimony earlier this year that only the killer and the victim had personal knowledge of the events that formed the basis for the state’s re-enactment. Detective Mark Reynolds, “sponsor” of the prosecution’s courtroom demonstration, admitted that he only could speculate about how tightly the ligatures that allegedly bound Jeffrey Wright to the bed were tied and whether all of his limbs were secured, Susan Wright alleges in the brief. “You can’t interpret something and make things up,” Schneider says. Siegler defends the use of the courtroom re-enactment of the slaying of the murder during Wright’s trial. “The bed is a murder weapon just as much as the knife is,” Siegler says. “Without both or either, she wouldn’t have been able to kill Jeffrey the way she did.” Susan Wright claimed she acted in self-defense, testifying at trial that her husband physically and sexually abused her on the night he died and that to defend herself she was able to grab a knife her husband held. According to the brief in Wright v. State, Wright “stabbed the decedent in the neck and chest, and terrified that he would get the knife back and kill her, she could not stop stabbing him.” The medical examiner’s report indicated that Jeffrey Wright was stabbed 193 times. As noted in Wright’s brief, “Siegler claimed that the purpose of the re-enactment was to ‘show the jury exactly how there was no way this was anything but a murder and nothing close to self-defense.’ ” Wright’s testimony that she killed her husband in self-defense came after the prosecution’s re-enactment of the killing, according to her brief. Dan McCrory, the assistant DA who represents the state in the appeal, declines comment on any specific issues Wright raises in her brief because he has not read it. But McCrory says he has “a lot of faith in our trial prosecutors” as far as their abilities to stay within the bounds of evidence. McCrory says Harris County prosecutors have a 95 percent to 96 percent affirmance rate on their cases. “I think that’s just a reflection of how good the trial prosecutors are,” he says. On Oct. 7, the 14th Court permitted Wice and Schneider to take over Wright’s appeal and granted her motion to file a new brief. In her motion for rebriefing, Wright alleged that Houston solo Kenneth McCoy, her appointed appellate counsel, raised due process claims, although Wright’s trial counsel objected to the re-enactment on the ground that it violated evidentiary rules. Unless the 14th Court allowed rebriefing, McCoy had waived Wright’s claims of evidentiary rule violations, according to the motion. McCoy did not return two telephone calls seeking comment before press time. In her new brief, Wright asks the 14th Court to reverse her conviction and grant her a new trial. Among other things, Wright alleges in her brief to the appeals court that 263rd District Judge Jim Wright — no relation — erred when he permitted prosecutors to stage the re-enactment of its theory of the case in front of the jury, despite the objections raised by Wright’s defense attorney, in violation of Texas Rule of Evidence 602. The rule bars a witness from testifying to a matter unless evidence shows the witness has personal knowledge of that matter. Wright further alleges in the brief that even if the re-enactment passed muster under Rule 602, it still was inadmissible under Rule 403 because its potential to “impress the jury in an irrational and indelible way” outweighed its probative value. Wice contends the “playing field was no longer level” for Wright when Siegler and Doyle staged the re-enactment. “They crossed the line from evidence to high drama that is not predicated on evidence,” he alleges. In her brief, Wright cites the California Supreme Court’s 1948 opinion in People v. Dabb on the inherent danger of permitting jurors to receive evidence in the form of a staged re-enactment of an event. “[S]uch a portrayal of an event is apt to cause a person to forget that ‘it is merely what certain witnesses say was the thing that happened’ and may ‘impress the jury with the convincing impartiality of Nature herself,’ ” the California court wrote in Dabb. According to Wright’s brief, the Louisiana Supreme Court voiced the same concerns about the dangers of videotaped re-enactments in 1990′s State v. Trahan. “The strong impact of seeing an inaccurate re-enactment creates such a substantial possibility of prejudice that it is unlikely cross-examination could effectively point out the discrepancies … ” the Louisiana court said in Trahan. JUST THE FACTS Two University of Texas School of Law professors with expertise on evidentiary issues have different views about the re-enactment in Susan Wright’s case. Mike Sharlot, a former law school dean at UT, and Steven Goode, associate dean for academic affairs, teamed with Guy Wellborn, another UT law professor, to write the “Guide to Texas Rules of Evidence.” Sharlot says re-enactment is a common technique that often is used by defense attorneys. As long as the jury is not misled by the re-enactment, it is not a matter for reversal, he says. “I can’t believe this over-dramatization is a basis for reversal,” Sharlot says, referring to Wright. Goode says, “Nothing in the rules of evidence inherently bars re-enactments.” But Goode says the re-enactment has to be based on the facts of the case and can’t be inconsistent with the facts. The first question, Goode says, is whether a witness’s theory on how a crime was committed is rationally based on the information the witness had. If not, the witness should not be allowed to testify, and the visual of the witness’s theory should not be allowed, he says. The next question, Goode says, is whether the re-enactment is faithful to the detective’s testimony and faithful to the underlying evidence. Siegler says that before the demonstration, Reynolds, the detective who testified at trial, examined the way Jeffrey Wright’s wrists and ankles had been tied with neckties to make sure that the prosecutor portraying the husband in the demonstration was tied the same way. Reynolds also examined the stab wounds to determine the direction of the knife during the killing, she says. Reynolds also testified that he assumed the husband was restrained face up, as shown in the demonstration, Siegler says. Susan Wright alleges in her brief to the 14th Court that the medical examiner testified that he believed Wright’s husband was tied down when he died but admitted that it would have been impossible for the husband to have sustained the defensive wounds on his hands if he had been tied as tightly to the bed as the state claimed during its re-enactment. Wright further alleges in the brief that Reynolds admitted that he did not see bruises on the husband’s wrists or ankles that would be consistent with him struggling with the ligatures, as the re-enactment had portrayed. If the re-enactment showed the husband struggling with his bindings, and there was no evidence of that, the re-enactment was not faithful to the evidence, Goode says. Goode says the 14th Court’s standard of review for Wright’s claim of a Rule 403 violation is abuse of discretion. He says it was “pretty unusual” for the judge to allow a re-enactment that neither the judge nor the defense attorney had seen before it was staged in open court. Notes Goode, “That’s certainly not a cautious way to proceed.”

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