The Whitness

I just wanted to quickly acknowledge a few things:

1. The Attorneys have an extremely difficult job, and both clearly put a tremendous amount of effort into the jobs they did in the courtroom.
2. I’m just an armchair quarterback here. It’s easy for me to pick apart the job that both attorneys did, but I wouldn’t know the first thing about how to do their job.
3. Let’s not forget that what I’ve written shouldn’t be taken as fact, but just my recollections of the case. If you could hear from another juror, I’m sure many aspects of the story might come out differently.

The first thing I learned about closing arguments (that I hadn’t ever picked up from TV shows) is that the prosecutor goes first with closing arguments, then the defender gets to give his closing argument. THEN if the prosecutor wants, he gets to give another final closing argument. It was explained that things are structured this way since the burden of proof lies with the prosecution.

The Mood – I have to say I was dying to hear how these closing arguments were going to go. The witness testimony had really been all over the map and it often wasn’t clear to me what points either side was trying to draw out from the witnesses. Now was the time for them to recap and summarize what we had heard and why it was important to their argument. I was on the edge of my seat.

Instructions – I can’t remember if we got our instructions from the judge before or after the closing arguments, but I think it’s relevant to discus them here. The instructions were several pages long, I’d say 6-10. We were given a hard copy and the judge read the entire thing aloud to us. He said the law required him to do both – give out hard copies and read the instructions aloud. The two main things I remember were the definitions of the types of evidence, and the exact definition of each of the charges that the defendant faced. Some details:

• Direct vs. Circumstantial: The instructions made a distinction between direct evidence and circumstantial evidence. The analogy they used was something like this: if a witness comes into the court room and says it’s raining outside, that is direct evidence that it is raining outside. If, however, the witness comes into the courtroom and says that there are people in the halls with umbrellas and beads of water on their raincoats, that is circumstantial evidence. What came as a little bit of a surprise to me is that the instructions explicitly said that we shouldn’t automatically give any more or less weight to one type of evidence vs the other. In other words, we are allowed to find circumstantial evidence just as compelling as direct evidence. It makes sense when you think about it, but on legal shows I feel like they always dismiss circumstantial evidence as less valuable.
• Witnesses – We can choose to believe as much or as little of any witness’ testimony as we see appropriate. If we think the witness lacked all credibility we can disregard what they say, or we can just choose to disregard parts of what they say.
• Charges – All the charges were clearly defined in our instructions. The most serious charge was attempted murder, and I was a little surprised that premeditation was a necessary component of this charge. I’m not sure what the charge would be if there was no premeditation, but apparently it wouldn’t be attempted murder.

Prosecution Closing Argument #1 – The most noteworthy element as the closing arguments began was a change in the tone and the mood of the courtroom. The prosecutor starts by talking about how it is the jury’s job to decide the facts. Suddenly it is driven home that this is not “story time” for the twelve of us, but rather we’re here to do a serious job and the real work of our job is about to begin. Here are some of the points the prosecutor makes as he is recapping what is important:

• He points out the Victim’s claims that about an hour after the police left the scene on the night of the incident, the Victim spoke with the defendant on the phone. The Victim claims that at this point he was convinced that the defendant was indeed in her hometown and that she was not the person who had shot at him. AFTER that phone call, the Victim then went down to the police station to pick up his Emergency Protective Order, and he did not to tell anyone at the police station that the defendant was not the person who shot at him.
• We are then played the full audio of the interview between the Inspector and the Neighbor (we had heard an excerpt before, but he saved the full thing for the grand finale). During this interview, we again hear the Neighbor say he is 100% sure that the person in the photo lineup (the defendant) was the shooter. He is not asked for a percentage of certainty, he volunteers it.
• The prosecutor then says if the defendant was the shooter, then clearly some people have changed their story. It’s easy to understand why they might…

At this point, my neighbor, Juror 11, starts coughing which turns into a coughing fit and the judge has to ask the prosecutor to pause so #11 can take a break. We interrupt the drama so she can get some water and take a breather. I think the pressure and responsibility of deciding the defendant’s fate was weighing heavily on #11 and this was primarily a nervous reaction – she was shaking visibly during the break. In any case she recomposed herself and we took our seats and started back in.

• The prosecutor said it’s easy to understand why they might change their story. The victim and the defendant have a child together, and regardless of the current status of their relationship, with time it probably seems like the more humane thing to try to keep your child’s mother out of prison. The Neighbor is a good friend of the Victim and would likely therefore be willing to follow suit.
• He reminds us that there was direct evidence from 3 perspectives that the defendant was the shooter (the initial claims of the victim, the neighbor and the deputy).
• He is apologetic about losing the bullet from the evidence. He admits that it looks bad, but plays down the importance of the bullet to the case.
• He reviews each of the charges, specifically pointing out that she must have driven around 90 minutes from her hometown with a gun in the car, and those actions constitute premeditation.

All the while, the prosecutor was using his best public speaking skills. He was trying to be charming, making good eye contact with each juror. He hardly (if ever) looked at his notes during the closing argument. I’m not sure how long it lasted, but I would guess it was over an hour. It was a very impressive performance indeed and he made a compelling case. I knew it was too early to decide on a verdict, but he was very convincing.

Defense Closing Argument – The defense attorney takes a soft tone as he begins his closing argument. He quickly shows where the focus of his argument will be – the alibi. He also brings a serious tone to the room by stating that the jury has a “very very very very very very important task” (that’s right – I counted at least 6 verys). Here were some of his major points:

• Alibi means she couldn’t have been at the scene, and therefore couldn’t have committed the crime. There was no gun found, plus she’s got an alibi. There is no bullet, plus she’s got an alibi. This kind of concise focus is what I felt the defender was lacking up until now in the trial, and I thought it was smart to drive it home.
• He claims that the Staffing Agency Lady was the only disinterested witness in the case. She didn’t know any of the other people involved in the case and couldn’t possibly have any reason to be anything but truthful.
• Given the time stamps from the defendant’s work that day, the defense attorney laughs at the possibility of the defendant traveling all the way to San Francisco in only 26 minutes.

(at this point, the focus and coherence of his arguments starts to diminish a bit, but he’s not going to be finished for a while)

• He rambles a bit about how you could see fear in the eyes of the victim when he was on the stand. Trying to imply that he was afraid of the deputies who worked in the court house.
• He claims that there’s no way for the defendant to know where the victim would have been if she wanted to shoot him (trying to disprove the idea of premeditation). This is super-weak in my mind – he was in front of his own house.
• He claims that the CSI guy failed to show up when called back to the stand because he didn’t want to help the defense’s case.
• He claims that since the deputy had pulled his gun at the scene, he should have filed a report. The deputy didn’t change his story because he didn’t want to lose his job (if this doesn’t really make sense to you, join the club).
• He drops a line like “oh the lies we weave when we try to deceive” he tried it again later and got closer to the quote he was trying to use “Oh what a tangled web we weave When first we practice to deceive.” The problem is that he didn’t set up the quote either time with what he was referring to. Who was weaving lies and deception and why? It just sounded like he was dying to have a Johnny Cochran-esque quote somewhere in his closing argument.
• He claims that the bullet and bullet hole strangely appeared in the door of the house, when the police on the scene didn’t find any bullet holes in the house. He offers no alternate explanation of how and why this might have happened.
• He reminds us that the defense team wasn’t offered the ability to examine the car for exculpatory evidence before the car was released.
• He then claims that because evidence (the bullet) came up missing, “someone had something to hide.”
• At one point he looks at the jury and in a bid for sympathy claims “look at the extent they’ll go to get a conviction… it could be any of you in that (the defendant’s) chair.” To this the prosecutor claims “Objection: improper” and it is sustained. We hadn’t heard that objection before.
• He tells us not to be mislead by the prosecutor.
• He says that if the evidence points to two possible explanations and one of them is not guilty, we must choose not guilty.

(we break for lunch at this point, but again the defense attorney isn’t done yet. After lunch we pick back up).

• After the break he reminds us that there is no gun and no bullet. His tone and mannerisms are melodramatic.
• He claims that the case is over-charged and that the prosecution is just hoping something will stick.
• At one point he claims that since the two witnesses said they heard but didn’t see the gun being fired, that maybe it was just a firecracker.
• He somehow tries to imply that a charge of negligent discharge of a firearm is mutually exclusive with premeditation. As if it is impossible to premeditate negligence. I didn’t really follow this one.
• He informs us that “reasonable doubt” is equivalent to “things that make you go ‘hmmm'” and that there are plenty of those in this case.
• He questions why the deputy would have needed to hire an attorney.
• On many occasions he says “I’m getting there, I promise I’m getting there” basically acknowledging that his closing argument might seem needlessly long.
• He spent a while thanking and complimenting the jury for our time and attention. Both sides used tactics like this to try to flatter the jury and win favor.
• He then claims “documentation beats conversation” – presumably referring to the documentation of the time stamp records for the alibi. If we buy this rhyming premise, though, it also suggests that the early documented statements of the witnesses should be given more weight than their verbal testimony 2 years later.
• In closing he emphasizes the weight of our decision and implies the impact it will have on the rest of the defendant’s life.

In my opinion the defense attorney started strong then wandered all over the place, and then ended fairly strong. He also had visual aids which were posterboard-sized enlargements of some of our juror instructions. He went back over them (a bit condescendingly) to try to explain how these bits meant we must find the defendant not guilty.

Prosecutor’s Closing #2 – He starts by saying “this is it” which I think served the dual purpose of saying “this is the final word” and “you won’t have to listen to us talk much more.” I didn’t take many notes on this portion of the closing. He went point by point through the defense attorney’s closing and tried to explain why they were wrong, invalid, or inaccurate. Not much new came to the table here, but his professionalism and polish we still in effect.

And just like that it was finished. Now the ball was going to be in our court. The judge thanked and excused the three alternates who had sat through the entire case. This was the end of the road for them. They wouldn’t get to deliberate, and unless they’ve stumbled on this blog, they may never find out what happened in the case. Sucks to be them.

Next Post: Into the jury room for deliberations, and then the verdict.

I think now is an appropriate time to take another break from the retelling of evidence to discuss the stylistic influences at play in the courtroom. Primarily the style of the prosecution vs. the style of the defense.

I went into this experience very open minded, and knowing almost nothing about what to expect in a courtroom beyond what I’ve seen on TV or in the movies. During the Voir Dire (the proper name for the jury selection process) I started to get a little bit of a sense for the two attorneys, and in retrospect they definitely started to reveal their personalities at that time.

The main defense attorney was a slender black guy with a bald head and a goatee. He walked with a bit of a strut like I tend to associate with basketball players. He had a hispanic assistant who looked like he was around 16 years old, and who said nothing during the whole trial (besides occasionally whispering to the defendant). If I had to guess I’d say the main defender was in his early to mid 30’s.

The prosecutor was a white guy with salt and pepper hair and an accent that was hard to place, but pleasant enough to listen to.

I can’t remember now exactly how my opinions of these two guys evolved to what they are now, but the first impressions I can remember of the defender were during the voir dire:

1. He seemed considerably less organized than the prosecutor. I realized that both of them had a system to keep track of the jurors currently in the 20 seats, but the prosecutor’s system was very discreet and efficient. The defender had a manilla folder open with yellow post-its all over it with random scribblings on each of them. Each time a juror was excused, he needed a few seconds to adjust his system.
2. He was an inferior public speaker – when he chose to “thank and excuse juror #6” it was almost an unintelligible mumble.
3. The questions he asked of the juror were less precise than the prosecutor. They just seemed a little too open ended to served the purpose of weeding out the good jurors from the bad. He asked a question along the lines of “what do you think of eye witness testimony.”

The prosecutor on the other hand was smooth. He was very well spoken and he just carried himself with much more relaxed confidence. The questions and statements he made all followed a logical progression to me, and I couldn’t help but feel myself becoming a bigger fan of his because he just seemed like much more of a professional. I had to remind myself that the question of which attorney is more polished is not necessarily relevant to us jurors and our task of returning the correct verdict.

The jurors aren’t allowed to talk to each other about anything related to the case prior to being in the deliberation room. However, I do think some speculation took place about the nature of the two jobs. Both the public defender and the prosecutor are government jobs, right? But it seems clear that working for the District Attorney is a more prestigious job. And then it the phrase drifted into my mind “if you cannot afford an attorney, one will be appointed for you.” Following this train of thought, I had to assume that being a public defender is probably one of the worst paying jobs an attorney can get. So I further assumed that the two types of people who who become public defenders are the ones who want to give something back to their community and help out the less privileged, and the ones who can’t get a better job. I readily admit there is little basis to this assumption, I’m just taking you through my train of thoughts and assumptions during this process.

During the case, there were a decent number of surprises (as you’ve read so far). The prosecutor never showed any signs of being shaken, where as the defender was often visibly surprised and frustrated by what was going on. If you take away the dialogue, all this non-verbal behavior suggested that the prosecutor was content with how things were going and that the defender was not having things go his way. This image was perpetuated when exhibits were presented to witnesses. Whenever one attorney wants to present a document, he has to show it to the other attorney first. The prosecutor only glanced at whaever the defender was presenting, but when the prosecutor wanted to present a document, the defender always gave it a good look as if to make sure the prosecutor wasn’t trying to pull any funny business.

How to Object This was perhaps the most entertaining thing in the case (next to hearing how all the parties dealt with having to refer to “baby mamas”). The defender had a hard time with the objections and it really frustrated the judge. There were two ways that these difficulties manifested themselves. The first is if the defender had an objection during the prosecutor’s questioning. One technique would be to object and give a laundry list of possible objection bases hoping one would stick. This would sound like “Objection your honor; heresay, leading the witness, asked and answered.” His other technique might be to just say “Objection” followed by a long pause.

The other problem came when the prosecutor offered an objection to the defender’s questioning. The prosecutor might say “objection your honor, leading” and before the judge could say anything, the defender would say “I’m just trying to establish…..” Both of these techniques clearly frustrated the judge. On at least six occasions, the judge stopped the proceedings, sighed with his first two fingers on his temple and said “let me clear up how objections must work. If you have an objection, say so and state the relevant legal basis. Then wait for my ruling. If I need any help I will let you know.” It just got more entertaining each time it happened, and at times it just sounded like the attorneys were bickering children.  Of course I don’t have any idea how common or uncommon of an occurrence it is.

I don’t mean to pick on the defender too much. Part of the reason he frustrated me is that I could follow the prosecutor’s train of thought most of the time. The defender didn’t seem to be building a coherent argument, he just seemed to be trying to create doubt at every opportunity he could. Pointing out all the things that the police could have done, all the things that CSI could have done, etc etc. What if the bullet was fired on a different day or not fired from a car. So many of these suggestions just seemed so amazingly implausible I felt like the defender lost credibility with each of them. The way my brain works, if the defendant was innocent he should just be able to provide a very clear direct explanation of why and make sure that message was clearly conveyed.

What’s hard for me to admit is that in a trial by jury, perhaps the defense’s approach is the more effective one. Maybe you can’t expect 12 people to follow your clear train of thought, and maybe you don’t want to. Maybe all the defender wants to do is offer the jury a plethora of potential doubts and hope that everyone will cling onto at least one that makes sense to them. Or maybe they assume that a jury will use the reasoning of that “sure they were crappy sources of doubt, but just look at how many crappy sources of doubt. Surely that adds up one net reasonable doubt?”

We’ll find out soon how effective each side was in the end.

Questions: Were my assumptions about public defenders and prosecutors inaccurate? Did I come off as a jerk? I’m just trying to keep it real.

Next Post: All that’s left here are the closing arguments, the deliberations and the verdict. I’ll definitely summarize the closing arguments in the next post and maybe move into the deliberations as well.