Tag Archives: Witnesses

Meet the Truth

When you’re nice to people, they give you attempted murder cases.  That’s what I found out when a more senior DA got transferred and specifically asked that a case be assigned to me.  Normally, someone with my experience level would not try an attempted murder.  It was her vote of confidence that let me cut the line.

The case was strong: lots of forensic evidence, incriminating statements by the Defendant prior to trial, and the weapon involved in the shooting was registered to him.  The Defendant lured the his ex-girlfriend over to his house in the middle of the night by throwing her stuff out.   He then shot a man that the ex-girlfriend brought to help her with the stuff.

I spent the weekend before the trial re-reviewing the medical records, which were voluminous.  There’s one line in the medical records that I noticed for the first time: it said that our victim gave a statement to another police agency (a different agency than the one handling the crime).  I didn’t have that report.  Visions of Brady violations swirling in my head, I scrambled to locate it at the last minute.  And sure enough, when my detective was able to run it down, it was extremely harmful.  The victim flat-out lied to the other agency.  He didn’t leave out details, he didn’t confuse things, he affirmatively made up a new story that had no relation to the facts.

I had to turn it over, of course, but I heard about it during opening, closing, and ad nauseum during cross-examination.  “The People’s witnesses are liars!” again and again.

The defense was self-defense.  Which meant the Defendant had to testify and provide an alternate version of what happened.  His lie, however, was so poorly thought out that I was shocked.  At first he seemed very smart and reasonable.  He was soft-spoken.  He did not let his emotions through in the courtroom.  But when he got the meat of the story, the exculpatory part of the story, he just didn’t have a compelling lie.

The best lies meet the truth halfway.  But the Defendant told a story that completely excused himself altogether.  He didn’t admit that he intended to kill but asserted that it was justified in self-defense.  Instead, he said that he never intended to actually shoot anyone.  He only intended to “cover” himself and scare the victim into ducking.  Then, he could make his escape.

The jury did not buy it.  The grouping of shots near the victim was too close together for an accident.  They discounted the Defendant’s story and convicted him.  He was charged with attempted first degree murder and they convicted him on first degree attempted murder, because they thought he only quickly decided to kill the victim; he didn’t premeditate.  But they found the gun allegations true.  Those gun allegations enhanced the punishment by 25 years to life.

Herding Witnesses

We argued motions in the morning on the day my second felony was supposed to begin.  I had two witnesses, both cops, subpoenaed to be in court at 10, to start out the case.  My civilian witness was taking a bus from 300 miles away, and wouldn’t arrive until the afternoon session.  But I had the two cops to fill the time while she traveled in.  When we finished arguing motions (all adverse rulings), the already angry judge turned to me and asked me who my first witness was.  The jury was waiting outside.  I turned around to and there was no one there.

For anyone who has ever had to herd witnesses, this is the nightmare.  There wasn’t a single other person in the courtroom, much less an officer.  I asked the court for a moment and looked down at my phone.  There were several texts.  The first officer said that he was sick and couldn’t come in at all today.  That’s bad, but not fatal, I would just have to scramble to put my evidence on another way.  I saw that there were other text messages; that must be the other cop telling me that he is waiting outside.  I’ll have to start with the other cop, but whatever, I can still make it work.  I check the other text message.  Sure enough, it’s the other officer.  My heart is racing already, no one likes surprises, but I’m feeling confident that I know what he’s going to say.  The judge is watching.  The Defense counsel and the Defendant are sitting silently next to me, probably wondering what the hell is going on.  I read the message: the other officer is on an arrest and can’t come in.  My stomach drops.

We approach, I tell the judge the situation.  Not in a calm or collected way.  Like a person vomiting information in chunks with a going film of apology and self-justification.  The judge, who was already mad, becomes incensed.  He says, “Ok.  You’re unable to proceed.  I’m going to dismiss the case.”  That would be extremely bad for the case: the defendant would be let go without me putting on a shred of evidence.  And the Defendant has a horrible record.  Moreover, I would have to explain why my scheduling problems robbed the People of California of their right to a trial.  And I’m new!  It’s not like I have a record of smooth success behind me.

I can sense the judge wants to protect the time of the jury, who have jobs and lives of their own, afterall.  I ask him if we can open, and tell him the cops will arrive while we are opening.  He tells me to call the cops and make sure that they can be there.  I do.  I call them on the record, with the judge sitting there watching and listening, with a horrible look of pain and worry on my face.  The second officer, who was in the middle of the arrest, picks up.  I tell him to stop what he is doing and come to court right now.  He agrees.  I tell the judge, and he brings in the jury.

The judge asks defense counsel if she is going to open.  She’s not an idiot.  She says, “I’m going to waive opening statement.”

I normally spend about five minutes on my opening statement.  In this case, a robbery, five minutes would be a stretch.  I just don’t have that much to talk about.  “He came in, he used force and fear, you find him guilty.”  But based on where the officer is coming from, I know that I need about 25 minutes, plus parking and elevator time.  So I start my opening.  And I’m dragging out it.  I’m literally going through every fact I intend to elicit.  I’m holding up picture after picture, saying things like, “here’s another exhibit I will introduce.”

I get to the end of everything and the officer is still not here.  I sit down, defeated.  Then defense counsel, miraculously, changes her mind and decides to give an opening.  Deliverance!  It takes about 7 minutes, as I’m frantically watching the door and bouncing my knee like a recovering drug addict.  And then, somehow, she’s done and the cop is still not there.

The judge turns to me and says, “call your first witness.”  I have nothing.  But an idea forms in my mind.  The jury is watching.  I say, “your honor, can I have a 15 minute bathroom break?”  I know what he’s thinking.  He wants to appear reasonable in front of the jury.  He says, “ten minutes.”  The cop arrived on minute seven.

“That’s Not A Courtesy I Extend”

I had a hearing set in a robbery.  The victim arrived in the courtroom after I left to handle another matter in another courtroom.  When I was gone, the public defender approached the victim and asked to interview her, which she did.  The investigating officer arrived and noticed the two of them in an interview room.  He entered and asked if the public defender had told me that she wanted to interview the victim.  She said she hadn’t.  The officer told the victim to break off the interview.  This caused the officer and the public defender to get into a shouting match.  Meanwhile, I was cluelessly handling other matters downstairs.

The public defender ran into me downstairs and was the first to tell me what had happened.  She pointed out that it was not illegal for her to interview my victims (even though it is illegal for me to talk to her defendants).  Told her I agreed with her on the law.  Then I said, “I would just ask you, as a professional courtesy, to let me know when you want to speak to a victim.”  She said, “that’s not a courtesy I extend.”  We left it at that.

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I was annoyed, of course.  I blew off some steam with the investigating officer upstairs.  But the interaction resurfaced on the commute home, where all forgotten annoyances resurface.  What is the proper response to this?

I could let it go.  She’s right on the law.  Defense counsel can interview victims.  It’s important to get along with people you work with.  Even defense counsel.  Prosecutors are supposed to hold themselves to a higher ethical standard than defense counsel.  In practice, this seems to mean letting them get away with all sorts of underhanded things.  The defense bar seems to be so used to this that they get angry when I even suggest that both the prosecution and the defense should be treated equally.  I could let her get away with this.

I could retaliate by withholding my own “courtesies.”  One thing in particular that popped into my mind was changing my existing practice when it comes to witnesses.  Now, I allow defense counsel to interview my witnesses, and even encourage it, as long as I am present.  I could no longer do that.  Instead, I could always advise them not to.  I could explain to the witness that this defense lawyer’s job is to make you look untrustworthy and stop a fact-finder from believing you.  I could explain that this lawyer would have consider letting their victimizer out on the street to be a successful result.

I could take the defense interview option off the table by having victims wait to testify in my office.  This may inconvenience me in 100 cases and solve the “no courtesy” problem in one case.  In other words, it might not be worth it.  But it would also solve a related, and even more annoying problem: gamesmanship over witness attendance.  How often has a defense lawyer based their decision to take a plea on whether a witness is present?  This seems to be a bad way to practice law: justice for only those victims that can come to court.  But I digress.

I’m still annoyed, even as I sit here today, long after the fact.  Maybe not in the right frame of mind to make a decision.   But at least I got to spend the commute thinking about delicious retaliation.