Transcript

Question 1

1. Polygraph impeachment time
2. Other Reports
3. Treich asks
4. K confirms file
5. Dc response to Treich
6. DC narrative re imp
7. Dc asks re file - p response
8. K re MO admissions
9. K does not —
10. Imp
11. K expl re poly

Answer 1

1. 11 am
2. 11:01 am k confirms he knows of no other report
3. 11:04:45 if it will be ex, for access to “complete” case file, asks for all 199 pages
4. 9:12:30 full file transferred to Twohig
5. 11:06 DC does not object
6. 11:07 DC narrative re impeachment
7. 11:08 DC asks permission to email after rd,court yes no obj
8. 9:33:45 admits finger went in anus; 9:38 confirms again, finger went in
9. 9:37 claims doesn’t ask why
10. 9:40 impeached “may have accidentally during diaper ch that was about it”
11. 9:35 k said he explained P can’t use poly, results could mean anything, bolstering only

Question 2

K re trans
Counselor
Subs of imp

Answer 2

11:09 impeachment counselor , confirms reviewed, no corrections

Counselor, didn’t learn anything about counselo, didn’t even learn the name, never talked, in 3 separate questions
9:19:45

Question 3

Imp re child health
Reviews x tran

DC give opportunity

Answer 3

11:12
Both sentencing trans
Doesn’t bring it up at all

11:14 to admit he didn’t, but “maybe in the other hearing”

Question 4

Plea addressed in hearing
Plea hearing sch
Plea on table until
BUT PER MO:
K strong quote and number of times -
Borio date - 4/15
Court inq time
Did not promise cd
Reason d changed mind

Answer 4

11:17:20 plea adressed in hearing
11:31:00 2/14/13
11:19 plea on table until vic is interviewed
BUT Later MO: 12:09:20 never talked about traumatizing daughter
11:19:30 “ there was never a plea sent over with a five-year cap”; 11:21:45 says it again; 11:23:30 and again 3X TOTAL
11:20:45
11:46 no promise of cd
9:32 no idea why changed mind, not due to his counsel

Question 5

D calls K - time
K excused - time
Defense asks:

Answer 5

9:12 am - D calls Kubiak as witness
11:20:30 if the court has no questions that w be excused

Question 6

M lost custody

Answer 6

9:15

Question 7

K background
Failure to train
Failure to inform

Answer 7

9:15:20
No exp
No cle in child abuse or sex assault
No research “spoke to colleagues”
Did. Not co counsel

9:16:00 not in fee ag, no emails, no texts, did not otherwise inform re training

Question 8

Confirms no recordings

Answer 8

9:16:15 Only took notes

Question 9

Child infection -

Answer 9

9:20 Kubiak confirms infection is potential D theory

Question 10

4 points re coaching
3 re fam file

Answer 10

1 - 3 year old with contradictions
2 - 9:15 am and pg 22 order Mother lost custody battle
3 - Ex. B-7 “I love this man but right now he disgusts me”
4 - 9:25:30 “Not my daddy anymore”

1 - BUT 9:24 No fl pleadings in case file,
2 - no notes, no other items in criminal file re fl case
3 - Doesn’t have fl file anymore because of time

Question 11

Threats 4 points

Answer 11

9:31
Changed mind between 2/14-2/21
No counsel from k
Nothing re reason
Sent text messages during the week

Question 12

K suggests re poly

Answer 12

9:33:15 Polygraph could have changed his mind

Question 13

Grandmother 8 points re relationship w AV

Answer 13

11:37 am gm describes caretaking
11:39 bathing changing
11:40 never saw objects inserted
11:41 Nicole never disclosed
11:42 Changed every 2-3 hours
11:42 She changed her more often
11:43 brought her every weekend,
11:44:45 lived in his own home

Question 14

Grandm re K 3 points

Answer 14

11:46 met kubiak
11:46 asked questions didn’t write anything down
11:48:20 K never said he was going to call her to testify

Question 15

MO re K experience/records 2 points

Answer 15

11:52:50 simon there first time, never again
11:53 notes on yellow paper

Question 16

MO 6 points re plea hearing /threats
Arg re hearing

Answer 16

11:59 told K was not going to take plea
11:59 K asked judge for more time
11:59:40 testifies that threatened with removal from case
12:00:30 never admitted to any acts of
12:01:20 testifies took no contest because otherwise would be guilty
12:05 always said no to plea offers

Arg: why have plea hearing if client has never indicated he’s interested in plea, why would reset be necessary

Question 17

MO 4 points re plea meeting w K
Dovetail w

Answer 17

12:02 Saturday meeting brother father there
Told him he could receive Conditional discharge
12:03 K told him that sex offense victims would be on jury
12:04:30 K tells him he met w judge

Dovetail w F33 claims chambers meeting judge finds admitted he didn’t para 184 pg 24

Question 18

MO re med arguments

Answer 18

12:06 medical arguments would have made a difference if he knew would’not be addressed

Question 19

MO re Acosta 2 points

Answer 19

12:08 did not trust Acosta
12:08:30 would not have taken plea if he knew Acosta would be able to say anything

Question 20

Treich to review ex
Defense offer to Treich

Answer 20

12:15:00 Treich committed to review exhibit by the following Monday
12:16 D offered to allow affidavit, no affidavit filed

Question 21

MO re witnesses w K

Answer 21

11:56 no witnesses but mom
11:56 said might have her
11:57 said it wouldn’t help bcz he said she said

Question 22

6 points re polygraph kubiak

Answer 22

1. Impeachment 7:20 11:00 am Pg 1, 79, do you know of another report? No
2. 11:01:45-11:03:21 minutes- comparison of numbers on different pages, they are the same
3. 11:03:30 JK confirms there are no other reports.
4. 11:03:50 Touching Rectum, question 1, most reactive, jk confirms.
5. Sexual reasons, much less reactive 11:04:10
6. Touch rectum for non parental, only reactive by .007 11:04:30

Question 23

6 points re medical records
3 re SH

Answer 23

1 - K affidavit G-3 medical had already been disclosed, wouldn’t help
2 - BUT 9:24 No fl pleadings in case file, no notes, no other items in criminal file re fl case - Doesn’t have fl file anymore because of time
3 - AND said “don’t have records” to court D-22
4 - 9:29 no records from child care workers
5 - BUT hearing - 9:20 infection would be potential D avenue
6 - 11:36 grandmother was main caretaker, saw no signs of abuse.

7 - TOOK SIMILAR APPROACH W SH - 9:28 “Didn’t see a need to get copy of (sh) video” because MO maintained innocence
8 - BUT EMAIL A33 - I will pick it up in person
9 - MO- 11:55 never spoke about medical records history

Question 24

Plea misleading

Answer 24

1 - First considerations - K has no idea why client goes from not guilty to no contest 9:30
2 - Only experts only hires polygraph
Misinterprets results
3 - wildly wrong about sentencing outcome - performs well pretrial, no record?? Nothing else.

1 - Says in hearing poly changed mind 9:33
2 - 11 am misrepresents poly numbers importance

1 - F 33 claims a meeting happened
Ev. Hearing judge finds admitted he didn’t para 184 pg 24
2 - Client testifies he was told, and his father was told at meeting

5 - Also says was told sex offense v on jury
6 - Tell him grandmother‘s testimony won’t matter
7 - Also told threatened
8 - Told likely probation and condition discharge f58
9 - No sentencing memorandum, doesn’t explain that that’s an option at sentencing
10 - Doesn’t explain how the medical conditions will work or that alternative evidence can be presented