Steven Capobianco did not get a fair trial and now deserves a new one, his attorney claims.
On Thursday, defense attorney Jon Apo asked Judge Joseph Cardoza to overturn Capobianco’s guilty verdict for three reasons: jury misconduct, misconduct by the prosecutor, and a court error regarding phone records not being allowed in court.
Capobianco was on trial for six months for the murder of his pregnant ex-girlfriend, Carly “Charli” Scott. It took the jury weeks to decide his fate — a guilty verdict was handed down last December.
But Apo isn’t satisfied with the outcome. We’re told the defense is hammering on what it considers unfair points from the first trial that may have cost Capobianco his freedom.
We dug into court records and learned what Capobianco’s defense team is claiming. Our calls to Apo weren’t returned, so we showed the papers to University of Hawaii law professor Ken Lawson.
The first issue that Apo put on record: Prosecutor Robert Rivera said in closing arguments that Scott’s jawbone was speaking to the jury.
The judge asked the jury to ignore it, but Lawson says the damage was already done.
“(The defense) might have an argument on that closing argument,” Lawson said. “When you have a high-profile case, especially a murder case where people’s emotions tend to be all over the place, the prosecutor is not supposed to do anything that could inflame a jury.
“We want our verdicts based on facts. When you get the jury so riled up in emotion and the only person they could punish is the one sitting at the defense table, they may punish out of that emotion as opposed to looking at facts,” Lawson continued. “What the defense is arguing is, ‘Listen, for you to stand in front of the jury, Mr. Prosecutor, and argue her jawbone is talking to you, that’s improper.'”
Capobianco’s defense is also arguing jury misconduct, saying there was a seven-day break in the trial that exposed jurors to news coverage on the case.
The judge ordered jurors not to speak to anyone about the trial or look up more information.
“I can see how some jurors could say, ‘You know what? You have no evidence I did anything other than abide by the judge’s instructions,'” Lawson said, “but as a defense attorney, you’re doing anything to get your client a new, fair trial.”
The defense team’s third point deals with the phone records of the Carly Scott’s sister, Phaedra Wais, that the court did not allow as evidence.
“What he’s saying is, ‘Look judge, you know, I had some pretty good evidence that could probably shed some light in this case and you didn’t put that in. I want you to reconsider that and grant me a new trial,'” Lawson said.
We asked Lawson, for all these claims he’s putting forth, does Apo have a good enough case for the judge to grant another trial?
“These are hard motions at this point,” Lawson replied. “I would say there’s not a lot of these motions granted, very rarely granted. But as an attorney, you have to make them.”
The possibility of a new trial for Capobianco is unsettling for Scott’s mother.
“Honestly, that’s a pretty terrifying prospect, but this is part of the justice process, and we knew it going into it,” said Kimberlyn Scott.
A decision has yet to be made. Both sides are scheduled to return to court on Monday, March 6.