Capobianco Defense Closing Arguments: “Facebook-ed Into Believing”December 1, 2016, 5:26 AM HST · Updated December 2, 7:17 AM Wendy Osher · 2 Comments
UPDATE: The prosecution wrapped up its rebuttal argument on Thursday morning (Dec. 1, 2016) in the Steven Capobianco murder trail, and the deliberation stage of the trail has now commenced. We will continue to update our mauinow.com website with new information as it surfaces including information on when the jury is ready to address the court for a verdict or any other pertinent communication.
The Defense presented its closing arguments on Wednesday in the ongoing murder trial of Steven Capobianco. The trial began more than six months ago with the state introducing 71 witnesses, and the defense presenting just four witnesses.
Defense attorney Jon Apo started off by thanking the jury for their commitment, attention and patience. He then took jurors back to the first time they interacted during jury selection. “As the day went by, I think you all started to realize that there was a little bit more at stake in this trial.”
“With the exception of the one or two of you which had heard nothing about the case before, remember when you first walked into that room, a bunch of strangers in suits–Judge Cardoza and his staff, the court reporter, and a few feet away, the guy that all of Maui had presumed guilty of killing his pregnant [ex-]girlfriend, or so the story went,” said Apo.
“If you can recall, the biggest concern of everyone in that room, came down to a couple of issues, aside from the impact that this trial and commitment would have on your work–can you be a fair and impartial juror if chosen? Can you presume Steven Capobianco to be innocent of the allegations unless and until the state has met its burden of proof? By my account, most of you came into the case hearing something about it. Most of you came in with somewhat of an opinion about Steven’s involvement, and to my surprise one of you had even had hands on contact with him on a professional level,” said Apo.
That last statement drew an objection from prosecuting attorney Robert Rivera who said, “This is information that should not even be put out there in court.” Rivera moved to strike the statement and additional comments, calling it improper to talk about what happened during the jury selection process, since it is “not part of the record that’s before the jury.” The motion to strike was granted by Maui Chief Judge Joseph Cardoza.
“Ladies and gentlemen, I’m not going forward until I do my job and make sure that we’re back on that first starting point–that you in fact believe in the American justice system, that you can be a fair and impartial juror, and that you will not find Steven Capobianco guilty unless and until the state has met it’s burden,” said Apo.
American Justice System, Juror Instructions
He continued saying, “Nearly half a year later, at this point of the trial, you folks are the American justice system. I did my part. Mr. [Matthew] Nardi, the defense did their part in this American justice system. The judge is almost done with his part, except for a few more juror instructions. The state had their shot. You folks are the American justice system,” said Apo.
The comments drew another objection from the prosecution, with Rivera calling Apo’s argument a “misstatement of the law. They are the triers of fact,” said Rivera. The motion to strike the statement from the record was granted by the court.
Shaking his head, Apo addressed the jury saying, “You know ladies and gentlemen, you guys saw this all at trial. They don’t want you to hear anything I say.”
That statement, too, was followed up by an objection from the prosecution who argued that it was an improper argument. The judge again sustained the objection.
Apo said he wanted to make sure that everyone was all on the same page and moved on to discuss July Instruction #2. “You must presume that the defendant is innocent of the charges against him. This presumption remains with the defendant throughout the trial of the case unless and until the prosecution proves the defendant guilty beyond a reasonable doubt. The presumption of innocence is not a mere slogan, but is an essential part of the law that is binding upon you. It places upon the prosecution the duty of proving every material element of the offense charged against the defendant beyond a reasonable doubt. That’s the law,” said Apo.
Lowering the Burden of Proof: “Dumbed Down the Law”
He continued saying, “I want to caution you at this point about what Mr. Rivera has wanted to do with this law. Mr. Rivera has dumbed down this law to such a low burden of proof, that he won this case six months ago. Mr. Rivera has taken the law, which says that he must prove that Steven Capobianco is guilty of the allegations with proof, evidence beyond a reasonable doubt. What has Mr. Rivera taken this to? He’s taken this to a whole different legal burden. He told you yesterday that the defense has to prove that Steven did not lie about his car being broken, or else he’s guilty,” said Apo.
Rivera stood again and raised an objection calling Apo’s comments a “clear misstatement.” Judge Cardoza responded saying, “Mr. Rivera respectfully did not argue that the defense had to prove something. I’m certain of that.”
“Look up his transcript and see whether that’s what he told you,” said Apo. “Somehow proof beyond a reasonable doubt of these allegations have become–oh, all we kind of gotta need to show you is Steven had a motive, an opportunity and an intent. Isn’t that what his whole closing argument was about yesterday? We don’t have to prove to anyone what happened to Charli Scott and how Steven Capobianco did anything to her. All we kind of gotta prove is motive, opportunity and intent,” said Apo.
Rivera again stood and objected saying, “Judge, that’s now what the state said yesterday.” That objection was overruled by the court and Apo was asked to proceed.
“So, once you got chosen to be a juror–one of the lucky sixteen–you got to hear opening statements And I’m sure you recall how Mr. Rivera stood in front of you and told you in dramatic fashion about all the horrible things happened down this path, and how he was going to prove that all these horrible things were perpetrated by Steven Capobianco,” said Apo.
Apo: “The State Has No Idea What Happened to Charli Scott”
He continued, “Then I came up and I told you that the evidence will show how the state of Hawaiʻi has no idea what happened to Charli Scott. How the evidence would show how Mr. Capobianco was the fall guy for MPD and the prosecutors, and how there was absolutely nothing resembling a full or fair investigation to find the real perpetrator of these crimes by the Maui Police Department.”
“Before I go further, I’d like to bring back up jury instruction #2 because the remainder of it is the law as it relates to this. You must not find the defendant guilty upon mere suspicion or upon evidence which only shows that the defendant is probably guilty. What the law requires before the defendant can be found guilty is not suspicion, not probabilities, but proof of the defendant’s guilt beyond a reasonable doubt,” said Apo.
Apo also asked the jury to look at instruction #14, saying, “This law instructs that the defendant has no duty or obligation to call any witness or produce any evidence. Jury instruction #15 also reiterates the burden of the state, by saying that the defendant has no duty or obligation to testify, and you must not draw any inference unfavorable to the defendant because he did not testify,” said Apo.
“If I chose to do so, I could have asked zero questions of the state’s endless witnesses. I don’t have to prove that Steven is innocent. This is not like a civil trial for money or for fault to see who owes money, where one side needs to prove more than the other. This is not how proof works in a criminal case. That’s a civil case. These same jury instructions are told to every jury in every criminal case in America, not only embracing something that you learned as a kid–eh prove, but taking that to the highest level possible in civilized society, prove it beyond a resonance doubt,” said Apo.
“The bottom line to you, the juror, is whether you have a doubt as to whether the state has met its legal burden, and whether your doubt is reasonable to you,” said Apo. That statement raised an objection from Rivera who said it “misstates the law of reasonable doubt,” and was “misleading.” The objection was sustained.
Reasonable Doubt Made Simple: Big Island Mayor Used as Example
“The law will show you how everything comes down to reasonableness when we talk about the fact finders in the case,” said Apo.
Apo said that while he debated on whether or not to use the example in this case, he said, the trial has been so long that during the course of this trial, the Mayor of the Big Island, “was not only charged for something, but he was acquitted.”
“I bring this up because I won’t borrow from another attorney unless I cite them. Where I’m going is that Mayor Billy Kenoi used to be a public defender,” said Apo. “What I can tell you about Mr. Kenoi is that when he was a trial attorney, he won trials. And his record supports that. But the thing about that and reason why many people believe that he won so many trials, is that he put this term of reasonable doubt in the simplest way possible. Ladies and gentlemen, if you’re sitting here at the end of the evidence, scratching your your head, saying what–that’s reasonable doubt.”
Rivera raised an objection saying, that the description is not reasonable doubt, and reference the jury instructions. The judge sustained the objection and addressed the jury, telling them that they have been given jury instructions that explain what reasonable doubt is.
“The state is the only one that has a duty to prove anything here. I submit to you that the state has not only failed to meet it’s legal burden in this case, I submit to you that we the defense have actually proven that the state has no idea what it’s talking about,” said Apo, turning the jury’s attention to the case that was presented by the state.
Inconsistency in Height at Planned Parenthood
“Linda Puppolo, Ginseng Mileur, Dave Rasmussen and Peter Gehring are how the state started off their case,” said Apo.
“Linda Puppolo came in and told you that she remembers Steven Capobianco, the defendant, come in with Charli Scott on October 25, 2013 to Planned Parenthood because she had to intervene as he was being coercive and disruptive during the visit,”said Apo, who noted that she gave four specifics as to why she says she remembers the defendant being there.
“She said Charli was distinctly taller than the male she was with, Charli had red hair, she remembers Charli because it’s the same name as her daughter, and he was saying things under his breath, making things difficult,” said Apo. “Well come to find out, only one of these four specifics relates to how she could have possibly identified that person as Steven Capobianco with Charli Scott, and that would be that Charli was taller than male. Well, come to find out, the un-contradicted evidence is that Steven is at least six-feet tall, but Charli was at most 5’10”,” said Apo.
“Let me tell you, you guys are the fact finders and you guys look at the record and see if Mr. Rivera’s exaggerating,” said Apo. “You will find that she self reported as 5’10”,” said Apo.
The statement as followed by verbal sparring between the prosecution and defense, which ended in the Judge addressing Apo saying, “If you’re going to be engaging in an attack of character, the court respectfully–that goes beyond proper argument.”
“Ultimately even one of you made the astute inquiry with a jury question as to whether she could even remember whether that person had facial hair or not. She didn’t even recall that,” said Apo.
“It turns out that Mrs. Puppolo is Mr. Rivera’s mothers friend, and she didn’t come forward until two years later, right before trial,” said Apo.
Time Card on Day of Planned Parenthood Meeting
The defense then referenced a time card of Steven Capobianco that was entered into evidence during the trial.
Apo said the document, “incorporates the day he is alleged to have been at Planned Parenthood. That time cared for October 25 shows that Steven Capobianco was at Mana Foods at work on that day. Again in the context that I have no duty to evidence anything in this case, please consider whether it is believable at all that Steven even could have been at such an appointment if he worked all day, ran or walked to his truck, sped through pau hana time Pāʻia, Baldwin Avenue, Hāna Highway traffic, got to Kahului, and made his way to such an office visit that had normal nonprofit hours,” said Apo.
“Where’s the progress notes identifying this person, or even mentioning what time this supposed incident occurred? Where’s the box checked for the question that says ‘are you being coerced by anyone?’ Where’s the progress notes of that counselor saying I had to intervene because a coercive person? Just as important, where’s any police follow up to see if what Linda Puppolo is telling you could even be possible?” said Apo.
“The defense is not even necessarily challenging the fact that Steven acknowledged knowing about the pregnancy earlier on, and assumed that Charli was going to follow through with an abortion,” said Apo. “Reasonably viewed, the evidence is that Steven did know about the pregnancy, did not dispute that the child would be from him based on timing, and was of the understanding between himself and Charli that there would be an abortion. The fact that Charli herself went to Planned Parenthood, as far as she did, is proof that that was her intent as well,” said Apo.
He continued saying, “But let’s also remember, Steven was just assuming that it was his child. You guys have never been provided any proof of that. But to say that the state has proven the circumstantial evidence that Steven was being forceful and coercive, from the very start would be to ignore (inaudible) evidence–the biased nature of the source, and the reasonableness of a testimony and the circumstances,” said Apo.
Jury Instruction #10: List of Factors to See if It’s Believable or Not
Apo said that if the state had provided progress notes from a counselor or a picture ID. If Rivera presented evidence like that.
“Every trial attorney knows you start your case out with your strongest witnesses and you end your case with your strongest witnesses. Mr. Rivera put his mother’s friend up first, someone the police hadn’t even heard from until two years into this investigation. And he puts her up there to paint the picture that Steven Capobianco was some evil, coercive person from October 25, 2013, and that therefore must have dismembered and de-fleshed Charli Scott months later, just like they’re telling you he did.”
“Ladies and gentlemen, Steven Capobianco is not shorter than Charli Scott,” said Apo. “How has the state proven anything with this first star witness,” said Apo.
Co-workers Testimony: “Quirky Comments were Unremarkably Common”
“Just like a book would read,” Apo said, “The state presents to you Steven’s own words and work from sometime before Charli’s disappearance, but just enough time to come in handy as, I guess, evidence of planning to murder someone,” said Apo.
“The state brings in two coworkers from Mana Bakery at Mana Foods, who testify that Steven inquired about the topic of how to get away with murder,” said Apo. “But then we find out that these types of quirky comments were unremarkable–they were unremarkably common within the banter of the bakery area,” said Apo.
“We find out that it was passed off as such at the time by the witnesses, and that the circumstances made it reasonable to do so, because it would be ridiculous for anyone planning a murder to ask out loud in front of a group of people, how to accomplish such a task,” said Apo.
“The state wants you to look beyond the unreasonableness of advertising one’s future crimes, particularly that of murder. They actually want you to believe that Steven was seriously asking Ginseng Mileur how to get away with murder just because he’s married to a legal aid attorney with no criminal law experience, and that he was doing so with as many witnesses as could be in that small bakery,” said Apo.
Peter Gehring: “Probably the Most Honest Witness”
“To their credit, the state then presents the testimony of Peter Gehring,” which Apo described as “probably most honest person who testified up here. He appeared as confused as most of us as to why the state was taking so long to get maps into evidence, and just to reminisce, he was the one who with some comic relief, was objecting to questions himself. He was evidently brought in so that some maps could be made available,” said Apo.
Detective Loo: Capobianco was the Sole Suspect
“Look ladies and gentlemen, I’m not here to bash Detective Loo. In this context, I’m going to address his testimony as concisely as possible,” said Apo.
“Whether from direct examination or cross examination, I submit to you that this is what Detective Loo’s testimony boiled down to. By the time he was assigned to be the primary investigator in this case on Feb. 11, 2014, Charli was the second missing female within about a month to go missing on the island of Maui. Although he was not trained as a homicide investigator, Det. Loo was one of the most experienced senior CID detectives on the island of Maui at the time he was given the assignment, even though, as he put it, no crime had even been committed,” said Apo.
“By the time of his first Feb. 12, 2014 interview with Steven, Det. Loo was already flagged by another of MPD’s senior CID detectives, Det. Lee, and Det. Loo began this very first interview by referring to Charli Scott as the victim in this case,” said Apo.
“By 11:23 that same morning, when he was read his rights by Det. Loo, Steven Capobianco was already the sole suspect to a crime that supposedly had not even been committed. Aside from interviewing people exclusively about how Steven Capobianco could be involved in Charli’s disappearance and ultimate death, Det. Loo investigated no bother possibilities other than Steven Capobianco killed Charli Scott,” said Apo.
“Not only this, but by Feb. 14, 2014, while out at Nuaʻailua Bay for the first time, Det. Loo testified that he had already concluded by then that Charli had been dismembered by Steven Capobianco. All subsequent investigations have been aimed to substantiate this initial conclusion. Det. Loo was expressly informed of other potential suspects, particularly after committing to the dismemberment theory, but for all practical purposes, refused to pursue any other leads, other than Steven Capobianco related leads,” said Apo.
“By Feb 15, other detectives appeared to be taking over Det. Loo’s primary investigator status for reasons that have gone unexplained,” Apo said.
“What evidence at all is there that Det. Loo or anyone related to this investigation did anything close to a full and fair investigation to find out what really happened to Charli Scott,” said Apo. “Ladies and gentlement, you did really actually hear Det. Loo tell you and admit that this investigation was locked into Steven Capobianco based on his ‘Spidey senses,'” said Apo.
“Every action of the Maui Police Department from Feb. 12, 2014 was committed to the theory of dismemberment by Steven Capobianco, practically refusing to jeopardize this theory by entertaining any other possibility,” said Apo.
“Despite being expressly told of other potential suspects, for this investigation, the evidence is that he made absolutely no legitimate effort to follow up on anything other than Steven Caopbianco,” said Apo.
The defense says that police were “expressly told” when asked if there might be anyone at fault, Capobainco told police about a “creepy person that Charli’s been telling me about at her house, and yeah, it might be worth following up,” said Apo.
The defense posed the question, “Why isn’t Charli’s house a crime scene? Someone was using her blankets after she went missing. How is that house not a crime scene? Det. Loo even acknowledges that he tried to talk to Charli’s landlord about this creepy guy, and how far did that go? Oh well, the landlord told me he’s not supposed to be around here. So end of investigation? That’s it?” said Apo.
List of Suspects
“You heard Hamilton come up with a whole list of suspects,” said Apo, who named off the various individuals identified. “Any legitimate follow up?” asked Apo.
The defense also asked about an individual who has been referenced throughout the trial as “M.J.,” and asked the jury to look at the registration of Charli’s vehicle and who she got the vehicle from.
Apo called the work done by another police detective as a “token followup, just to say they did it.” He said that police “refused to consider anything but that ludicrous dismemberment theory that he came with on the spot. Forget that this is pigs grounds. Forget that you’ve got bones so small that there’s no other explainable reason for getting them that small except for if it went through a woodchipper. Absolutely no consideration to a possibility of animal activity,” said Apo.
The Lie: Pakalolo Run
“This big lie, the state says is proof of murder–Ladies and gentlemen, why would it be a surprise to anyone that a drug dealer, as the state has evidenced him to be, would be lying to a detective about why he was at a particular location?” said Apo.
“If you’ve lived on Maui long enough, you know there’s no shortage of pakalolo in Keʻanae. You heard Adam Gaines tell you the real reason why Steven and Charli stayed together after they broke up was pakalolo. You also heard evidence that Steven would go out to Hāna to pick up pakalolo, and Charli would go with him on occasion in the past. Was Steven supposed to tell Det. Loo all of that,” said Apo.
Reference to Charli in the Past Tense
“You guys are being instructed to be all about reasonableness. I hate to say it, but when someone like Charli has been missing for three days, someone who otherwise would not be close to being missing, and there are dozens, if not hundreds if not thousands of people looking for her for the last three days, I’m sorry ladies and gentlemen, but the fact that Steven Capobianco is using past tense at that point, is not at all unreasonable. It’s realistic… The state wants to call it a slip. What slip? Is he supposed to be this ideal optimist, or can he be a realist like his character shows he is,” said Apo.
Defense Witness Dr. Laufer: Juror Instruction on Experts
“The state wants you to believe hook, line and sinker what their experts are telling you. Look, I’ve put experts up there to help you folks (inaudible) facts. If you guys want to disregard what he tells you go ahead,” said Apo.
“We put on one expert. I submit to you that the rebuttal case that the state put on from there epitomizes the desperation of a case that just hasn’t been proven,” said Apo. “That was all about going back… all to hold on to theory that this was about dismemberment, and not animal activity.”
The state brought in two experts on the topic–from JPAC, Rebecca Taylor, and forensic pathologist, Dr. Lindsey Harle. Both testified that the marks on the recovered jawbone was consistent with the use of a knife.
“The defense presents Dr. Laufer, who comes in and what he tells you is consistent with the one article that their expert comes in with, in terms of what scoring is. Dr. Laufer tells you that parallelism of the scratches make it highly unlikely that those were caused by a knife. What do they do on top of all of the resources that they brought you in the case in chief? They call, in their so-called rebuttal case, another forensic anthropologist, who seemingly knows less about boar activity teeth than Rebecca Taylor,” said Apo.
Apo said that one of the state’s rebuttal witnesses acknowledge an article about scoring left by pig bites, “but somehow leaves out to you folks that the whole definition of scoring per the author of that article is that it’s superficial multiple parallel lines,” said Apo.
He said the state presented four experts, all to testify on four scratches.
“You saw the resources the state had at its disposal to bring in all these witnesses, to do tests, to bring in experts. You want to make a big deal about bringing in an expert for $10,000 who put in 40 hours of work, really,” said Apo in reference to the defense’s compensation for Dr. Laufer’s testimony. “Actually, that’s cheap. Imagine how much they spent trying to hang him,” Apo said as he pointed to his client.
Rivera raised an objection saying, “That is a highly improper and prejudicial statement to make.” The judge sustained the objection saying, “The use of that terminology is highly inappropriate,” and asked the prosecution to stop making such arguments.
Apo went through a list of Dr. Laufer’s qualifications as an emergency room trauma physician and his early interest in the field, and compared it to one of the prosecution’s rebuttal witnesses who he said had a “freshly minted PhD.”
He then showed the jury a photo of a boar’s mouth and the injuries left on Scott’s jawbone. “If you juxtapose the two, look what happens,” he said.
“Facebook-ed into Believing”
“The real evidence is that it is nothing but reasonable for Steven to be noticeably concerned about becoming a father, and nothing but reasonable for Steven to even be aggressive in an attempt to communicate with Charli as soon as possible under the circumstances,” said Apo.
“Ladies and gentlemen, if there was an agreement at first to go through with an abortion, and come to find out you’re actually going to be a father, why is it unreasonable for Steven to want to communicate with Charli? What, is he supposed to wait for the child to be born and to be tracked down by child support enforcement agency?” Apo asked.
“Is he not allowed to become accepting, or even excited over the possibilities if that’s what happens? Why, because the Scott’s and the Wais’ say he’s not allowed to?” said Apo.
“The real evidence is that Charli was expecting nothing from Steven relative to raising her unborn child. By all accounts, as varying as they may be, Charli was making plans to raise the child on her own with the help of others, without Steven’s assistance or involvement,” said Apo.
“She was ignoring him for a while and trying to keep him completely out of the baby’s life. The real evidence is that if anything, everyone in Charli’s family and everyone exposed to Find Charli [Scott] Facebook page, has been Facebook-ed into believing that all efforts to find Charli equates to hanging Steven Capobianco for killing his unborn child,” said Apo.
“What has been evidenced here is a presumption of guilt. Absolutely no legitimate evidence supporting these allegations against Steven Capobianco. In the words of Atticus Finch in To Kill a Mockingbird, to begin with, this case should never have gone to trial. I have nothing bit pity in my heart for the victim in this case and the chief witness for the state in this case, Kiberlyn Scott. She is a victim. But that pitty does not extend to so far as to putting a man’s life at stake,” said Apo.
The statement prompted an objection from the state, Cocalling it an improper argument. The court sustained the objection and the statement was stricken from the record.
“The witnesses presented by state … have presented, and again, this is Atticus Finch, it’s not me. The witnesses presented by this state, have presented themselves to you and to this court with a cynical confidence that their testimony would not be challenged, confident that you folks would go along with anything they say because after all don’t we all know that Steven Capobianco is guilty?” Apo said.
“I’m no idealist, but I believe firmly in the American justice system because it’s no ideal. It is a living working system and it is reality. I beg to you to do your duty. Please do your duty. Thank you,” said Apo.
The court will reconvene at 10 a.m. on Thursday, Dec. 1, with the prosecution scheduled to present its rebuttal argument. That will be followed by a few more instructions from the court, after which, the jury can begin their deliberations.
Steven Capobianco is standing trial for the murder of his pregnant ex-girlfriend, Carly “Charli” Scott. He is also accused of setting her vehicle on fire.
Scott was 27-years-old and five months pregnant at the time with an unborn child fathered by the defendant. Capobianco has pleaded not guilty to the charges.
In the days following Charli Scott’s disappearance, Capobianco had done an interview with police in which he said Scott had picked him up on the night of Sunday, Feb. 9, 2014, and dropped him off at his truck that he said got stuck in Keʻanae on Feb. 8, 2014.
According to the account, both headed back to Haʻikū, with Scott following Capobianco in case his vehicle broke down again. Scott was reported missing the next night on Feb. 10, 2014, after she failed to show up for work and did not return phone calls and messages from her family members.
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