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tailors J\ote: Last week we ran the first part of the arguments for setting aside the verdict on the three-weeklong Holmes trial
This week, the argument continues with Attorney David Konick arguing that the burden of proof of Holmes mental condition was on Nielson's legal team.
Presumption Of Sanity
A second instruction to the jury noted a presumption of sanity on the part of the testator. Col. Holmes. “We don't have to prove the man was out of his mind. They’ve got to prove he was in his right mind.” maintained Konick. The presumption of sanity only applies in the absence of evidence to the contrary and ends as soon as evidence of tesiamentory incapacity is introduced, he told the court.
Robinson's instructions also held that the burden of producing evidence of incapacity lay on the opponents ot the will. The production of evidence is a procedural issue, a matter of law that had already been dealt with when the Judge overruled a motion to strike made bv Nielson’s attorneys. Konick argued. He cited legal authorities which caution judges and lawyers not to contuse the burden of producing evidence with the burden of proof. By mentioning the burden of producing evidence in the instructions, Konick alleged, the court "mislead the jury into thinking somehow tl burden was on us to show that Col. Holmes was crazy," when the burden was instead on the defendants to show he was of sound mind when the will was executed. The defense produced no credible evidence about the colonel’s slate of mind on October 27. 1979, "except that he looked okay, that he talked about the farm (in Flint Hill) and Barnahy Street (his Washington, D.C. home) and that he asked (Stevenson and Daley) to witness a document." said Konick. He reported that he’d heard comments from jurors who remarked “Well, I don’t know. They just didn't prove it (that Col. Holmes was mentally incompetent." The jury was told that the burden of proof was on the plaintiffs to show Col. Holmes was not of sound mind, Konick said. “Somehow, it shifted to us and that's not the law. Those instructions were erroneous." 1
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Undue Influence 1 He maintained that the court’s instructions regarding 1
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