The Whitness

When I started this little project of retelling my courtroom experience, I told some of my lawyer friends to check it out. Specifically I told them that the questions I write are directed primarily at them and to please comment on them if they were so inclined. Maybe using the “comments” feature was too much to ask, but I did get a very thorough and thoughtful response from my an old college roommate.

Without further ado, I give you the enlightened commentary of John Gates, esq – this website’s new Chief Legal Correspondent.

As far as my jury trial experience is concerned, I worked in the prosecutor’s office during my third year of law school and second-chaired a murder trial and an armed robbery trial, and I’ve tried four personal injury cases for the defense since 2000. If any of the other guys in your e-mail are prosecutors or ADAs, I’m sure that they have much more experience than me and can better answer your questions.

Jurors: A juror may be excused for a valid reason (sick, non-English speaking, non-frivilous prior engagements, etc.), a juror may be struck by a party or the judge “for cause” because he has preconceived notions or opinions that he will not be able to set aside and view the evidence fairly (there is no limit for these types of “strikes,” and you were likely the beneficiary of many such strikes), or a party may use a “peremptory challenge” (usually 3, but depends on jurisdiction) for any reason (unless racial, etc.). A juror in my first civil trial asked to be excused because he had roids and couldn’t sit down for three days. I told the judge that we should mess with him and tell the juror that we would need to confirm his claim during a break. The judge didn’t think it was as funny as I did.

They asked about CSI, Law & Order, et al. because people who watch those shows (me included) expect DNA, fingerprints, and other bodily fluids to be found by hot blond cops strolling through crime scenes, processed by attractive men with stubble, and witty detectives who extract confessions, all within 43 minutes (plus commercials). These jurors’ standards are simply unrealistic and unattainable. During opening statements of my armed-robbery trial, my last line was, “This isn’t Law & Order, and this isn’t Perry Mason. This is a straight-forward case: he (pointing at defendant) robbed the McDonald’s.” I would also worry about the people wrapped up with the Scott Peterson-type stories.

Jurors in Kansas and Missouri are not allowed to keep their notes after trial, and I am surprised you were allowed to keep them.

The oath: I think that we dropped “so help you God” here. Witnesses asserting the 5th can be challenged if the question has absolutely no risk of incriminating the person, but it is a pretty liberal standard.

Breaks: They are annoying for lawyers, so I’m sure that they are infinitely more annoying to jurors. Criminal trials rarely go smoothly because witnesses don’t want to miss work, fear retaliation, need to be transported from jail to testify, etc.

Ironically, I report for jury duty on December 10, but I don’t think that I will get selected. Actually, I had a trial scheduled on the same day that I was supposed to report for jury duty, but the trial was continued until March. Although I would consider myself unbiased (and not worthy of being struck “for cause”), I think that a criminal defendant would use a “peremptory challenge” because he or she would think that I would favor the prosecution. I usually represent defendants in civil cases (personal injury, breach of contract, construction defects, nursing homes), so a plaintiff in a personal injury case would probably not want me on the jury.

Many thanks to John for his wisdom and insight. I look forward to his continued input as other legal quandaries arise. If any of you other lawyers out there feel like chiming in, feel free.

Next Post: We’ll hear about the witnesses that the defense team calls.

The Neighbor (again). After having the previous day free, we return to find that the neighbor wasn’t avoiding the justice system, he just got his dates confused. He showed up and took the stand. Here are the details he provided:

• He is friends with both the victim and the deputy. To the extent that those two know each other, it is through this neighbor. Claims he has known the victim for 30 years, and had met the defendant once at her home in (her hometown).
• There was another car on the scene – a green SUV double parked with a woman sitting in it. Neighbor claims this woman was another of the victim’s baby-mamas. This car was double-parked in the street behind the vehicle that the neighbor and victim were working on.
• He claims the victim’s demeanor was normal prior to the shooting and makes no reference to any expectation of impending danger.
• He describes the suspect vehicle as a dark sedan vehicle, and confirms that the shot shattered the rear passenger window, although he clarifies that to him that means all of the glass was fractured, but didn’t necessarily all fall out of the pane. Only a small (2 inch) hole was made in the window.
• After the shooting, he claims that he and deputy sheriff were laughing about it, but that the victim was “shook up” about it.
• He claims he didn’t really talk to the police when they showed up.
• Says he didn’t see how the shooter held the gun. He hit the ground when the shot was fired, and when he looked up the vehicle was already in motion again.
• On the stand he claims that he didn’t see the shooter’s face at the time, but knew that she was dark skinned and had a bob haircut. He couldn’t remember if anyone else was in the car with her.
• The Infiniti belonged to both himself and the victim – they were in the car business together. They bought cars at auction and (presumably) resold them.
• To his knowledge, the victim has 5-6 baby mamas.
• A tape was played of his interview with the inspector that took place 3 days after the incident and wherein he says he is 100% sure the shooter is the defendant. On the stand he claims that now that he has seen her in person, he knows she is not dark-skinned enough to have been the shooter. He is then asked if he thinks his memory would be better now or 3 days after the shooting. He concedes it would be better 3 days after the shooting.

The people call… The Inspector. This is the guy from the domestic violence department who was assigned to the case and from what I could gather does all of the work between where the police leave off and the DA picks up.

The inspector’s testimony didn’t provide a bunch of new information. He said that the victim never came in to talk to him about this case. When the defense attorney cross-examined him he spend a lot of time and energy about who decided who was considered the victim. I later inferred he was trying to support the idea that the 7 charges against the defendant were inflated (since two of the charges were assault against the Neighbor – the neighbor wasn’t listed as a victim on the initial police report).

The inspector also summarized that CSI had inspected the car in mid-may (a month after the shooting), and they found all windows in tact, no glass fragments and no bullet casings on the inside of the car. They did not open the door panel to see if there were any glass fragments inside the door. He also said that although a bullet was found on the scene, no gun was ever found.

Finally, we heard a tape of the 911 call made by the victim. No information came out in that call which hasn’t already been discussed. There was a new legal term though – a stipulation. That simply means that both the defense and the prosecution agree on a fact, and therefore we should take it as fact and not question it. The stipulation in this case was that the voice on the tape was indeed the voice of the victim.

The people call… The CSI Guy: This is the guy who went to examine the scene of the shooting. It is established that he spent a long time with CSI and has even written a book. On the scene, he found a bullet hole in the front door of one of the units behind where the shooting took place. Inside that door, he also found a bullet lodged in the wall of the entrance hall. From these data points he was able to assess the angle from which the bullet was fired. I’m paraphrasing here, but he basically said it came from the street at around the location where the shooter’s car was described to have stopped. The defense lawyer spent a while trying to imply that the officers that responded to the scene should have done more to collect evidence at the time, like putting up yellow tape. In my opinion, though, he didn’t make much of a case.

Oh – one more little detail. That bullet that he collected on the scene and submitted to the evidence room. It had been disposed of… by the people in the evidence room. Why? It wasn’t clear at this point. It’s only clear that the evidence inventory log listed the bullet, and then had a note that it had been disposed of.

CSI Guy was the final witness for the prosecution…

An Observation: The Visual Aids & audio system were terrible. Surely this should be old hat to all trial lawyers by now. They used a blown up Google map satellite image of the street and asked two witnesses in a row to draw on the same map. It was already bad enough that the satellite image had a greyish background and depicted cars parked on the street. The witnesses had to draw on top of or around the actual cars in the picture. But to have one witness look at what another witness has already drawn? That just seems like a really bad idea to me. When they played the audio tape of the 911 call, it was from the DA’s boombox with a court microphone held up to the speaker. Surely the sharing of evidence is common enough and important enough that these shouldn’t be the standard practices?!?

Question: When the witnesses were being questioned, they couldn’t just look at the statements they had previously made and state that as fact. They were constantly asked “would looking at that report refresh your memory?” The implication was that they had to remember things while on the stand, rather than rely on the belief that their previous statements were true. I don’t understand why this technicality exists.

Next Post: Although we’re done with the prosecution’s witnesses, well take a quick break from the storytelling to have some of my questions answered. A college friend of mine has volunteered his legal services to shed some light on the questions I’ve raised so far, and you’ll get to read those answers next…