ELEMENTS B 2019 POWER POINT SLIDES Class #9: Friday, August 30 National Toasted Marshmallow Day

MUSIC: SERGEI PROKOFIEV, PETER & THE WOLF (1936) [3 WAYS] Narrators: David Bowie, STING, STERLING HOLLOWAY (Voice of Winnie-the-Pooh & Kaa) STORMY WEATHER WHERE WE ARE CHECK FOR E-MAILS & UPDATED COURSE PAGE FOR SCHEDULING INFO FOR WHEN SCHOOL REOPENS Briefing Assmts Shaw Brief Probably Due Night Before Next Class Meeting; Can Do Sooner Other Panels TBA; Self-Quizzes Posted Today Qs on Instructions?

Most Performed Waltz in American Popular Music Between Shaw & Liesner Most Performed Waltz in American Popular Music FRIDAY Pop Culture Moment

What are “the superior advantages which the trial court had”? Liesner DQ1.17: Oxygen What are “the superior advantages which the trial court had”? Case doesn’t say You need to try to figure out what court means Will get easier with experience

What are “the superior advantages which the trial court had”? Liesner DQ1.17: Oxygen What are “the superior advantages which the trial court had”? Visual Observation of Witnesses and of Physical Evidence Hearing Testimony

She asked me to take her to the dance.

Liesner DQ1.17: Oxygen What do these advantages suggest about the appropriate role of appellate courts in reviewing factual determinations made by “finders of fact” (juries or trial judges )?

See, e.g., tests for taking a case away from the jury: Liesner DQ1.17: Oxygen What do these advantages suggest about the appropriate role of appellate courts in reviewing factual determinations made by finders of fact? DEFERENCE!! See, e.g., tests for taking a case away from the jury: Wisc 1914: “No reasonable doubts remain.” Fed’l 2019: “No reasonable jury could find …”

Liesner Brief: Rationales Not especially significant in a narrow case reviewing sufficiency of the evidence. Might give “prevailing rule” as a doctrinal rationale. Might give “superior advantages” as a policy rationale Examples of each in Sample Brief posted after class today

Liesner v. Wanie: Context 1914

Liesner v. Wanie: Context 1914: Deaths Joshua Lawrence Chamberlain (Civil War Hero) John Muir (Naturalist) Jacob Riis (Journalist/Author) 19th Century Industrialists CW Post (Grape Nuts & Other Cereals) George Westinghouse (Railroad Brake and Electronics) Frederik Weyerhauser (Timber & Paper)

Liesner v. Wanie: Context 1914: Births Alec Guiness Joe Louis Joe DiMaggio Ralph Ellison Danny Thomas Dylan Thomas

Liesner v. Wanie: Context 1914: Introduced in U.S. term “Birth Control” (coined by Margaret Sanger) First Blood Transfusion Doublemint chewing gum Elastic Brassiere Federal Trade Commission Company that will become Greyhound Bus Mother’s Day (by Congr. Resolution)

Liesner v. Wanie: Context 1914: Introduced in U.S. New Republic Magazine Panama Canal Pygmalion by GB Shaw Rookie Pitcher: Babe Ruth Tarzan of the Apes Teletype Machine Traffic Lights using red-green signals

Liesner v. Wanie: Context 1914: World War I 105 Years Ago Thursday: Sept. 5: 1st Battle of the Marne Begins NE of Paris, French 6th Army Attacks Germans  Allied Victory (Keeps German Army out of Paris)

Liesner v. Wanie: Context 1914: World War I 102 Years Ago Yesterday: Sept. 5: 1st Battle of the Marne Begins NE of Paris, French 6th Army Attacks Germans  Allied “Victory” Two Million Soldiers Participate

Liesner v. Wanie: Context 1914: World War I 102 Years Ago Yesterday: Sept. 5: 1st Battle of the Marne Begins NE of Paris, French 6th Army Attacks Germans  Allied “Victory” Two Million Soldiers Participate 500,000 Killed or Wounded

Liesner v. Wanie: Context 1914: World War I Sept. 5: 1st Battle of the Marne Begins NE of Paris, French Attacks Germans  Allied “Victory” Two Million Soldiers Participate 500,000 Killed or Wounded Dec. 24-25: Christmas Truce

Liesner v. Wanie: Context 1914: World War I June 28: Archduke Francis-Ferdinand (Heir to the Austro-Hungarian Throne) Assassinated in Sarajevo: “The Shot Heard Round the World”

Cf. “Some Shots Into a Brush Pile” (Liesner Trial Transcript) Liesner v. Wanie Cf. “Some Shots Into a Brush Pile” (Liesner Trial Transcript) featuring KRYPTON & URANIUM

Liesner Trial Transcript Note Anderson testimony (p.17): “REPLEVIED” Suggests replevin was cause of action. (= Common law action for return of personal property)

Liesner Trial Transcript: DQ1.19: Best Evidence for Each Side (Krypton) Liesners’ Attys must have argued: L-Boys did mortally wound wolf L-Boys did continue pursuit (Uranium) Wanie’s Attys must have argued: Uncertain that L-Boys mortally wounded wolf L-Boys did not continue pursuit

Liesner Trial Transcript: DQ1.19: Best Evidence for Each Side (Krypton) Liesners’ Attys must have argued: L-Boys did mortally wound wolf. Ev? L-Boys did continue pursuit (Uranium) Wanie’s Attys must have argued: Uncertain that L-Boys mortally wounded wolf L-Boys did not continue pursuit

Liesner Trial Transcript: DQ1.19: Best Evidence for Each Side (Krypton) Liesners’ Attys must have argued: L-Boys did mortally wound wolf Comparing wounds and possible sources (ammo/direction) Abdominal Wound likely Fatal Behavior of Wolf L-Boys did continue pursuit (Uranium) Wanie’s Attys must have argued: Uncertain that L-Boys mortally wounded wolf. Ev? L-Boys did not continue pursuit

Liesner Trial Transcript: DQ1.19: Best Evidence for Each Side (Krypton) Liesners’ Attys must have argued: L-Boys did mortally wound wolf L-Boys did continue pursuit. Ev? (Uranium) Wanie’s Attys must have argued: Uncertain that L-Boys mortally wounded wolf Lots of Shots/Wounds + Dog Bites Wolves Hard to Kill No Manure Inside Wolf L-Boys did not continue pursuit

Liesner Trial Transcript: DQ1.19: Best Evidence for Each Side (Krypton) Liesners’ Attys must have argued: L-Boys did mortally wound wolf L-Boys did continue pursuit. Boys run after wolf; F shoots into brush pile Boys testify F told Wanie (Uranium) Wanie’s Attys must have argued: Uncertain that L-Boys mortally wounded wolf L-Boys did not continue pursuit. Ev?

Liesner Trial Transcript: DQ1.19: Best Evidence for Each Side (Krypton) Liesners’ Attys must have argued: L-Boys did mortally wound wolf L-Boys did continue pursuit. (Uranium) Wanie’s Attys must have argued: Uncertain that L-Boys mortally wounded wolf L-Boys did not continue pursuit. Not very active attempts to enter brush pile Ps didn’t claim from W (tho Trial Court says this is OK)

Liesner Trial Transcript: DQ1.20 Trial Judge’s Perspective To make this decision, Judge must believe: Abdomen shot was mortal wound (“gut shot”; wolf’s behavior) Only shot that could have made that wound was Ed Liesner shot (bullet/angle) Questions/Concerns?

Liesner Trial DQ1.20: Trial Judge’s Perspective Trial Judge must have believed: Abdomen shot was mortal wound (“gut shot”; wolf’s behavior) Only evidence of shot that could have made that wound was Liesner shot (bullet/angle) Keep in Mind Judge might have experience with guns/hunting Judge could see pelt & holes Not every factual dispute is material to outcome. Whether there was “manure” in abdominal cavity Whether Wanie tried to hide bullet hole Liesner Trial DQ1.20: Trial Judge’s Perspective