Baker and his court-appointed attorney's original motion had six points to which they were going to try to muster up an appeal and motion for new trial on. These are explained on Channel 10's story by Eli Ross: Ex-Waco Pastor’s New Trial Motion Denied; Custody Issue Unresolved
"The original motion alleged that Baker's two trial lawyers failed to communicate adequately with Baker before the start of the trial, failed to consult or call as witnesses experts in forensic pathology or toxicology, failed to cross-examine witnesses adequately, including Baker’s former girlfriend Vanessa Bulls, failed to investigate the case adequately and that they demonstrated actions during and after the trial that showed a lack of loyalty to their client." (read more)The Judge, Matt's court-appointed attorney, Susan Shafer and Crawford Long were in Judge's chambers for 30-45 minutes or so. By the time they came out, all the above points were abandoned and they only argued one point as the whole basis for their motion to request new trial and appeal. Here it is: The fact that the alternate juror was allowed to go into the jury room and LISTEN (NOT PARTICIPATE IN ANY WAY) to the jury deliberations and that Matt's attorneys didn't object to it. Yes, ladies and gentlemen, that is it. That's their complaint of epic OMG attorney ineffectiveness. Reason for a convicted murderer to walk out of the courtroom.
It is perfectly understandable and reasonable for an alternate juror to be present (and not participate) in jury deliberations. One juror was already lost before the trial started due to illness. Then we had a 2-week trial. There is no law or statute or rule of procedure that says the alternate should not be present. What would be better anyway? Have another juror get sick and have to start the trial all over and or the 7-hour deliberations all over again so the alternate can hear things? Both the DA's and both of Matt's attorneys say they thought it was reasonable and didn't have a problem with it. Gray even said he'd of liked to have had that particular alternate juror ON the jury.
Then Matt's attorney argued that we have no way of knowing if the silent presence (and non-participation) of the alternate juror in the deliberation room made the 12 actual jurors convict Matt. Well, the State was 2 steps ahead. Ready to testify were 2 of the jurors, including the foreperson. Alternate juror did not speak. Did not make facial expressions. Did nothing but sit there like a potted plant. And they also reminded us that she was only in there with them less than an hour-and-a-half of their seven-and-a-half hours of deliberation. The alternate juror can't see well at night and asked to be allowed to leave early (around 5:00) so she could get home safely.
Obviously and expectedly, Judge Strother DENIED the Motion for New Trial and appeal.
Custody Venue Hearing
Attorneys for the Dulins are Darren Obenoskey and Susan Johnston. For Barbara Baker, Kerrville attorney Fred Henneke. There is also a guardian at litem attorney for the girls. I couldn't quite understand her name. I will find out.
This is basically what happened in my layman's understanding. The original suit filed by the Dulins for rights to see their grandchildren was filed in 2006. In 2006, McLennan County was the proper venue for that suit because all parties lived in McLennan County. There was never a final order rendered in that suit because the outcome and circumstances of that suit were pending civil litigation against Matt and also pending the outcome of the criminal trial and conviction. Therefore, it is still basically "open" in court in McLennan County. Barbara Baker wants the custody venue changed to Kerrville for obvious reasons. Her attorney is claiming that McLennan County is an improper venue for this case. But it was the proper venue at the inception of the suit....and that suit is this suit even though it's been amended from just asking for visitation to asking now for full-custody.
The problem is that there is no clear precedent for a trial just like this. The Judge has much at his discretion on this. But being the careful and prudent Judge he is, he wants both sides to spend more time researching cases and prepare briefs for him on this subject matter. One thing I found very interesting and also very telling about Judge Strother's insight on these matters is that he asked both parties to research whether there is any connection between Baker being convicted of murder and venue change on the custody part. Does he get to take advantage of family law statute when he caused this whole thing to happen when he murdered their Mother? Judge also pointed out that the girls (and the family) lived IN McLennan County to begin with. The only reason they are there (Kerrville) is because of the murder of their Mother. I can only imagine his frustration with all this.
Anyway, while both sides are gathering more case law and reasons for their cases, the Judge has ordered them to attempt mediation. I think they agreed to it being held somewhere between Kerrville and Waco. Also the guardian ad litem attorney asked for a deposit for her fees. She initially suggested, $2,500 from the Dulins and $1,500 from the Bakers. Judge said, $1,000 from each side for now.
Matt will stay here at the county jail until the matter of venue is decided. I suppose we'll have another hearing after 30 days.
Erin Quinn, with the Waco Tribune, did a great job with her live blogging of today's events. Check that out here: Judge rejects Matt Baker's appeal for new trial; custody dispute in mediation Matt exhibited some rather odd behavior towards her.
More stories about today's events:
Channel 25 - Baker's request for new trial denied