A Failure to Communicate

The victim lived in a trailer park in the desert. In her trailer, immobile for years now, she kept an etagere with her collection of dolls next to her collection of Jack Daniels’ whiskey. She had been strangled, probably with a belt, but maybe smothered, the medical examiner was unsure. She was found a few days after she was killed, in the trailer’s bedroom, her home ransacked. She had been dating younger man. He was in his late 20s, she was in mid 40s, divorced. The younger man, who would later become the defendant, never worked, and described himself as a “music entertainer.” He dated many women and once and was supported by them. After he strangled the victim, he fled to Colorado in her car, with her cards, and her cell phone. He wasn’t shy about talking about the killing. He told his cousin, who was later caught on tape repeating the confession.

It takes a lot of planning to prosecute a murder, and part of that planning is trying to figure out what the defense will be. In the face of all this evidence, we felt that we would have no trouble convincing the jury that we had the right man. In other words, based on the state of the evidence, we did not feel that “mistaken identity” was a feasible defense theory. Nor was self-defense: the victim was only 5′ tall and there was no indication of gunplay. No duress, no accident, no insanity, nothing. The only play we could see, based on the evidence, was heat of passion.

Heat of passion can reduce murder from murder in the first degree to manslaughter. Second degree murder is also possible. In other words, proving self-defense can take a murder defendant’s exposure from 25 years to life, all the was down to 15 years to life, or even 11 without the possibility of life. So the degree of homicide matters quite a bit.

We made an educated guess that the defense would be heat of passion. I listened to the defense lawyer begin his opening statement. I had spent months preparing the trial, and I knew that I would finally know what the defense would do. And the defense lawyer did not disappoint. He stood up and the first thing he said was, “My client did it.” “He killed her.” Then he asked the jury to listen carefully to the evidence, which would show that the killing was done in self-defense. It was expected, but it was still shocking. May younger defense lawyers believe that an aggressive defense means denying everything, and not giving an inch. Older, more experienced defense lawyers know that conceding what you have to without conceding guilt is a powerful way to establish credibility. But being relatively new myself, and working mostly with new defense lawyers, I had not seen the tactical admission done so dramatically before. The effect on the jury was similarly dramatic. They stared at the defense lawyer. They stared at the defendant. He remained silent as he sat at counsel table.

But he did not remain silent for long. At the close of the People’s case, he chose to testify. This made me extremely anxious. The play for manslaughter was being done with skill and credibility. If the defendant, who had sat there and listened to all the witnesses, just stuck to the story that his lawyer had already laid out, then he would massively increase his chances. Indeed, if he showed remorse and humility, the jury might even be tempted to go farther. I watched him as he was sworn in. On direct examination he seemed to be calm and forthright. He talked about his drug use without any shame or spin. But little by little, his story began to diverge from the opening statement. I noted down the differences, to highlight them later, during closing arguments. And the differences began to pile up. I began to ask myself, “what is he saying?” and “where is he going?” I didn’t have to wait long. The defendant said that he left the victim alive in the trailer and robbed her. She was alive when he last saw her. The same lawyer who had told the jury that his client was the killer was forced to ask his client, “did you kill her?” He answered, “No.”

The lawyer said his client was guilty and the client got up and disagreed! I have no idea how that could happen, but I know that it’s bad. Lawyers are supposed to make tactical decisions and clients are supposed to make big decisions, decisions like whether to concede guilt. Here, it looks like the defense attorney wanted to concede guilt but the client did not. Moreover, it looks like the attorney may not have asked permission to concede guilt, and certainly had to walk it back in his closing argument, which was a sight to behold.

After closing, the clerk texted me, saying, “we have verdicts.” I freaked out, because the only way you could have more than one verdict is if the jury acquitted on murder 1. Only then would they need to return a verdict, one way or the other, on the lessers. Bargaining with the universe, I began to hope for murder 2. I could not look the victim’s family in the eye if the jury returned a manslaughter verdict. But I knew the jury convicted on murder in the first degree when the judge only looked at one of the verdict sheets.

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