Sen Trial: Defense Closing Arguments

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After State Prosecutor Matt Redle concluded his closing remarks in the State vs. Dharminder Vir Sen trial in 4th Judicial District Court Friday afternoon, Sen's attorney, Tim Cotton, proceeded with his closing arguments.

He began by saying, "I guess as much as I hate to admit it, I agree with Mr. Redle on one point: Mr. Ernst should never have been shot that night. Tragic mistakes were made."

Cotton continued by telling the jury that regarding the Not Guilty by Mental Illness or Deficiency, or NGMI, plea, they were to determine a verdict by the greater weight of evidence, not by reasonable doubt, which is the State's highest standard.

He said that they heard evidence that Dr. McCormick had diagnosed Sen with Conduct Disorder, Major Depressive Disorder and Polysubstance Disorder. He said that Dr. McCormick agreed that breaking the law is part and parcel of Conduct Disorder, and the "fact remains that one leg or rung on the ladder at which the top rung is Mental Illness is breaking the law."

He also added that the Anti-Social argument presented by the State Thursday afternoon was a smokescreen...irrelevant because it can't be applied to a 15-year-old.

Cotton said to the jury, "You are to consider mental illness first, but if you don't reach a "Not Guilty" verdict, then you are to move on to the evidence...Circumstantial evidence is a tricky thing. [Referencing Count 3 - Aggravated Burglary]

Moving on to Count 2 - Conspiracy to Commit Burglary,, Cotton told the jury that Sen did not agree to go into a conspiracy. Cotton said, "an agreement implies he wanted to take part, and he didn't. He told police he'd been threatened, that Jr. would kick his ***. Why would Jr. do that? Because Jr. wanted to be known as a killer, he was 19 years old, he didn't have a job, he was angry at the break up with a girlfriend, he had cut his chest, was hospitalized, and upon getting out of the hospital he was angry, even to the point of throwing his skateboard at another friend the day before the crime."

Cotton said, "The gap between a 15-year-old and a 19-year-old is huge."

Cotton also cited the testimony of his first witness, Kyle Smith, who had said that Riley Larkins had told Smith that it was Jr. who had called Riley to get a gun. Jr. didn't have one, but he knew where he could get one, which is why he went to Dhar." Cotton suggested that Sen was acquiescing, "which is different than agreeing" when he provided the handgun to rob houses.

Regarding the issue of Duress, Cotton said, "Riley Larkins has a very bad reputation, some of his friends had been shot [in Washington state], and he had a tattoo that indicated he had killed someone. That kind of threat or intimidation is real and imminent in the mind of a 15-year-old in the dead of night.

On Count 1 - Murder in the First Degree, Cotton told the jury, "I'm not saying Dharminder wasn't there [in the Ernst house] and I'm not saying he didn't pull the trigger. But he did so at the behest of Jr.; he acted out of fear. Linda Ernst doesn't remember screaming or turning on the light, which is understandable when someone is in your bedroom with a gun."

He continued, "There's been some discrepancy in the testimony of whether Mr. Ernst had been in the bed or out of the bed." Holding up the autopsy body chart, he said, "The bedroom had a wood floor. The skinned knees -- noted as fresh abrasions on this chart -- lend credence that Mr. Ernst was out of bed, that he came toward Dhar, causing him to 'freak out' and fire shots. Bob fell and scraped his knees on the wooden floor."

Cotton then proposed to the jury that it was possible, given the testimony from the ballistics expert on how an automatic handgun works, that the shots went in the order of hitting the floor first, the next one going into Mr. Ernst's hip, and the last one going into his chest, lending itself to someone not having experience with an automatic firearm shooting out of panic.

Cotton conceded that the three made an unlawful entry into the house, but he told the jury that Sen never stole anything from the home. He said, "The State wants to say 'partners,' but it was Jr. who kept the money, and who magnanimously bought them breakfast later that morning with part of that money. Sen never took anything. Without the burglary element, the rest must fall."

Cotton concluded his closing argument by saying, "If the jury has a reasonable doubt, the jury has the responsibility to acquit him." Using a baseball analogy referencing a runner and an opposing player reaching the plate at the same time, Cotton said, "If there is any reasonable doubt, the tie goes to the runner."

Because it was the State's burden to prove the case, Prosecutor Matt Redle was given the opportunity to provide a Final Rebuttal. He told the jury, "You had a unique opportunity to hear Dennis Poitra, Jr. testify. The Defense has suggested that you speculate that Sen felt Jr. was in charge, [being four years older]. But Jr. hangs out with younger people because he's not, frankly, that cunning; he's [more immature].

Redle continued, "The Defense suggests that Mr. Ernst was already out of bed when he was shot, that 'Shot B' went into his hip, but Dr. Bennett did not speculate which order the bullets were fired, and neither can Mr. Cotton."

He went on, "The Defense has suggested you can't consider circumstantial evidence. You don't have to; you heard from the defendant that he'd stolen [the gun]. You heard Brandon Baglin testify that when [Sen] showed him the gun, he had said, 'look, dude, at what I found.'"

Redle then asked, "Which face of this defendant fits? Is it the defendant who said, 'I want nothing to do with it?' or the defendant who said, 'I dropped three rounds in the old man'?"

And Redle concluded by citing the Jury Instruction that they were to make their deliberations dispassionately and without sentiment. Redle's last statement to the jury was, "The fact that [Sen] was 15 years old should no more be considered than the fact that Bob Ernst was a man entitled to life."

The jury went into deliberations at about 1:30 pm, rendering a Guilty verdict on all three counts at about 3:40 pm. A sentencing date is pending.

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