[truth_seeker]

Here is the motion.

April 15, 2002 (page 2)

"Later, the attorneys indicated they intended to proffer their client's intoxication as an affirmative Defense; that is, if he committed the crime, he was intoxicated."

This is the actual phrasing from the motion. If you want more go to the website for yourself.

[John Jamieson]

Yes, but it was Dusek's words (and motion) not Feldman's.

Do think Feldman might put a different twist on it. Like: "Your honor, my client too blasted to have hurt anyone except maybe by falling on them, and he was already on the floor."

[longjack]

UCANSEE2 posted a link to a PDF copy of the motion in post 742.

I'm certainly not fluent in legalese, however, it seems to say DAW was drunk at the time, so if he did it, as a logical conclusion, he did it drunk. The drunkeness is an alibi, which is a defensive tactic, is what the document seems to say.

His other defensive ploy is to prove 3rd party culpability (someone else did it) based on the comings and goings of parties in the Van Dam home at the time of the child's disappearance. This tactic was not granted by any court because the defense could not show 3rd party culpability 'beyond any reasonable doubt'.

The document also says that the attempt by the defense to prove 3rd party culpability at the trial would unduly prolong the trial.

That helps me understand why Judge Mudd is blocking testimony such as the Feb. 16 phone call, in which the defense may try to show 3rd party involvement.

On the other hand, from what I've read here, it doesn't seem like the SDPD has busted their butts to investigate 3rd party culpability, either. DAW seems to be between a rock and a hard place, IMHO.

Since Feldman hasn't used the intoxicated client angle so far, I think he is confidant of acquittal. If the jury finds DAW guilty, the appeal may center around how a person in DAW's state of drunkeness could physically perform the actions necessary to abduct, kill and dispose of the little girl as charged.

In other words, since the motion uses the word alibi with intoxicated, I think the defense, if it comes to that point, will be, "How could a drunk physically do this ?". I don't think the motion means, "He didn't know what he was doing because he was drunk."

I am interested in listening to other interpretations of that motion.

longjack

[cyncooper]

"...that is, if he committed the crime, he was intoxicated."

Thank you for finding and posting this, truth_seeker.

[UCANSEE2]

Yes. Thank you. I had found that also.

I am seriously wondering if the 'loss of memory' was due to being 'DRUGGED'.