Robert McCulloch should be held responsible for using the grand jury to whitewash Darren Wilson

November 26, 2014

Wednesday, November 26, 2014

Good afternoon:

Prosecutor Robert McCulloch’s use of the grand jury to whitewash Officer Daren Wilson’s execution of Michael Brown behind a veil of secrecy is failing miserably and he deserves to bear the consequences for his perversion of justice.

One of the fundamental principles of our system of justice is the right to confront our accusers in a public trial by cross examining them vigorously.

Effective cross examination exposes biases, prejudices and the liars.

Witnesses who testify before a grand jury are rarely cross examined.

Prosecutors and grand juries go together like peanut butter and jelly. Prosecutors point and grand juries accuse.

Here is an example of the tough questions the assistant prosecutor asked Officer Darren Wilson.

Q: Okay, and you say something to them, did they say something to you first?

A: No. You want me to just go with the whole thing?

Q: Sure, go ahead. Let’s start there.

[GJ, Vol.V p. 207]

Go ahead and tell your story, what happened next, and then what did you do? are not are not cross examination.

Here is an example of cross examination.

You just told the members of the grand jury a few minutes ago at Volume V, page 202:

Q: Okay. Did you get any other calls between the time of the sick baby call and your interaction with Michael Brown and Dorian Johnson?

A: While on the sick case call, a call came out for a stealing in progress from the local market on West Florissant, that the suspects traveling toward QT. I didn’t hear the entire call, I was on my portable radio, which isn’t exactly the best. I did hear that a suspect was wearing a black shirt and that a box of Cigarillos was stolen.

Q: And this was your call or you just heard the call?

A: It was not my call. I heard the call.

A: Yes, that is what I said.

Q: And you were under oath when you said that, right?

A: Yes.

Q: And you are as certain about that as you are the rest of your testimony today, is that correct?

A: Yes.

Q: But you told your Sergeant, your direct supervisor, just a few minutes after the shooting that you were not aware of that call and you repeated that to him several times after that during the days after the shooting, didn’t you?

If he admits making the statement, you stare him down until he looks away and then cross your arms and turn your back to the witness for at least 2 minutes until the silence is screaming.

Then you commence the death by a thousand cuts that is the hallmark of every great cross examiner.

If he denies making the statement multiple times to his Sergeant, you put the sergeant on the stand to impeach him.

None of this happened.

And now everyone knows that Robert McCulloch used the grand jury to protect Darren Wilson.

They are marked men. Don’t ever let them forget it.


Cross Examining the Expert Witness: Messing with Hypotheticals

February 11, 2013

Monday, February 11, 2013

I write today about effectively cross examining expert witnesses, which was one of my specialties.

I could write a book about the subject, and maybe someday I will, but today I am going to focus on unraveling the expert’s hypothetical question.

Briefly, Rule 702 of the rules of evidence defines an expert witness as someone who is qualified by education, training or experience to express an opinion regarding a disputed matter in a legal proceeding.

When a jury needs the assistance of an expert witness to decide a disputed matter, either side may present the testimony of a duly qualified expert witness who may express an opinion regarding the disputed matter, including the answer to the ultimate question in the lawsuit.

The party that calls the expert begins by qualifying her as an expert. This normally involves having her tell the jury about her education, training or experience and publications in professional peer reviewed journals. Most experts have a curriculum vitae or CV, that lists their educational credentials and an up-to-date list of their publications. The CV is admitted into evidence.

The expert then tells the jury what evidence she has examined in the case.

Next comes a hypothetical question in which the expert is asked to assume a set of specific facts and asked if she can form an opinion to a reasonable medical or scientific certainty about the significance of those facts.

The witness will answer, “Yes.”

Next question: “What is your opinion?”

Next comes the rat-a-tat-tat of a nail gun.

One of the most effective ways to cross examine an expert is to attack the validity of the assumptions in the hypothetical question.

Undermine one and the expert’s opinion usually falls apart.

Since assumptions typically consist of assuming that disputed facts are undisputed, in a manner that benefits the party that called the expert, the opposing party cross examining the expert simply asks the expert to assume the contrary view.

Another way to challenge an expert opinion is to introduce an additional assumption into the hypothetical that undermines the conclusion.

Let us take, for example, the issue regarding whether Trayvon or the defendant was on top when the defendant fired the fatal shot.

The undisputed facts are the trajectory of the shot, which was direct from front to back, the intermediate range from which the shot was fired, the nonalignment of the two aligned holes in the sweatshirts with the entry wound and the muzzle of the gun was in contact with the outer sweatshirt when the fatal shot was fired.

The disputed fact is whether Trayvon or the defendant was in the superior position straddling the other.

The defense probably could find an expert who, given those undisputed facts, could testify to a reasonable scientific certainty that the defendant was on the bottom when he fired the fatal shot.

The problem with the hypothetical, however, is that it does not account for the presence of the gun in the defendant’s hand.

According to the defendant’s statement, he pulled the gun out of the holster that he carried inside the waistband of his jeans behind his right hip.

The expert’s opinion falls apart when you add this undisputed fact to the hypothetical because the defendant could not draw the gun and get it into the necessary position to fire the fatal shot.

Note BTW, that one also could conclude to a reasonable scientific certainty from the original set of undisputed facts that the defendant was in the superior position straddling Trayvon.

This is how you shoot down credentialed experts in just a few words.


Zimmerman: Dee Dee, Show Don’t Tell and The Importance of Listening

October 21, 2012

Whonoze asked the following question that I believe warrants a lengthy response, as it touches on a number of important issues about this case and lawyers in general.

He said,

Prof. L.:

If you were Zimmerman’s attorney, how would you handle the segment of DeeDee’s interview with BdlR in which, as I put it, “she offers to perjure herself.” Please review that segment of the recording. At ~15:51 into the interview, BdlR asks DeeDee if Trayvon said the man was coming to hit him just before the confrontation.

DeeDee: [very quietly] Yeah. You could say that.
SA d l R: I don’t want you to guess. Did he ever say that?
DeeDee: [after long pause, still quietly] How he said it, he just…
SA d l R: [interrupting] No, no. Do you understand? Did he say that or not? If he didn’t, that’s alright…
DeeDee: The man, he got problems. Like he crazy.
SA d l R: Trayvon told you that?
DeeDee: Yeah the man lookin crazy. Looking at him crazy.
SA d l R: When did Trayvon tell you that?
DeeDee: …He was walkin, before he say he was gonna run….
SA d l R: He said the guy looks what?
DeeDee: Crazy. And creepy.

Thus, despite BdlR’s admonition, DeeDee never says anything amounting to “No, Trayvon did did not say that,” but instead goes back to an earlier point in the conversation to bolster her assertion that Trayvon was afraid of Zimmerman.

Now, I do not care how anywhere here interprets this passage, or how they think it speaks to DeeDee’s overall veracity. I know that (and I mostly agree). But we are not going to be sitting on a jury in Seminole County FL, and we are not defense attorneys with an ethical obligation to present a zealous defense of George Zimmerman.

So, first, I would like an experienced defense attorney to role-play, evaluate this part of DeeDee’s statement to BdlR from a defense point of view, and imagine how you might use it at trial (if at all.)

Second, role playing a prosecutor, how would you prep DeeDee in anticipation of any strategies you think the defense might take?

My Answer:

I honestly do not believe Dee Dee offered to perjure herself in that exchange.

This appears to be a classic example of a witness having formed an opinion of what was happening in those final moments before the phone went dead. She’s struggling with attempting to differentiate between her opinion and what she actually heard Trayvon say or not say.

Thus, when “BDLR asks her if Trayvon said the man was coming to hit him just before the confrontation,” she answers

DeeDee: [very quietly] Yeah. You could say that.

BDLR picks up on her apparent uncertainty and says,

“I don’t want you to guess. Did he ever say that?”

She resists being pinned down to a “yes” or “no” answer because her opinion is based on more than what Trayvon said or did not say in those final moments.

For example, she knows Trayvon is a non-violent person who would never pick a fight with anyone and he had been expressing fear and describing strange, creepy and aggressive behavior to explain why he felt that way. She’s reviewing all of that preparing to tell him why she believes all of it can be summarized and expressed as a “Yes” answer to his question. In other words, she wants to supply context because context, rather than what he actually said or did not say in that final moment before the line went dead, answers the question everyone is asking.

She says,

“DeeDee: [after long pause, still quietly] How he said it, he just…

BDLR, who is not warm and fuzzy and lacks patience and an ability to listen, doesn’t “hear” what she is telling him. He interrupts.

“SA d l R: [interrupting] No, no. Do you understand? Did he say that or not? If he didn’t, that’s alright…”

Now, she realizes he doesn’t get it, so she tries to summarize it all by saying the man was crazy. She says,

“DeeDee: The man, he got problems. Like he crazy.”

BDLR is basically a bull in a china shop and he needs to develop some people skills.

Lawyers have an expression for context. We call it “totality of the circumstances.”

Story tellers have a rule for telling stories that they call “Show, don’t tell.”

Someone with some patience and listening skills needs to spend some time with her and tease out all of the specifics that she was attempting to identify and sort out before BDLR started pressuring her for a “yes” or “no” answer.

When she testifies, he needs to ask her to relate those specifics to the jury and leave out her opinion. What the hell does he expect her to say, when she wasn’t actually there and can only rely on what Trayvon told her and who she knew him to be?

Most of what Trayvon said to her, is admissible hearsay pursuant to the excited-utterance and present-sense-impression exceptions to the hearsay rule The rest is admissible non-hearsay because it will be offered to show his mental state, as opposed to being offered to prove the truth of the matter asserted in the statement.

BDLR needs to let her show, not tell.

When the defense inevitably attempts to pin her down on cross with the “yes” or “no” answer that BDLR asked, the jury will already have figured out what happened from the context that she supplied by showing rather than telling.

Her denial that Trayvon told her Zimmerman attacked him immediately before the line went dead becomes irrelevant because the jury, everyone else in the courtroom, and the world watching on TV will know that Trayvon did not have an opportunity to say anything when Zimmerman attacked him.

I used to spend a lot of time listening before I decided to do anything. It’s a good practice to develop and I do not believe very many lawyers have developed that skill.

BDLR seriously needs to spend some time working on it because he can be a hot mess without it.


Zimmerman: Standard Objections on Direct and Cross Examination at Trial

September 24, 2012

Time for a change of pace.

In today’s post, I am going to provide you with a description of direct and cross examination during the prosecutor’s case in chief together with a list of the standard objections that you are likely to hear during the trial. I will cover the defense case in tomorrow’s post.

After opening statements, the prosecution will present its case in chief and rest when it’s done. To survive a defense motion to dismiss after it rests, the prosecution must have presented legally sufficient evidence to support its case.

The legal test for legally sufficient, or substantial evidence as it is called, requires the trial court to assume for purposes of the motion that all of the evidence presented by the prosecution is true.

The trial court must then decide whether that evidence would disprove each element of self-defense and establish each element of M2.

If the answer is yes, the trial court will deny the motion to dismiss.

If the answer is no, it will grant it.

These motions are rarely ever granted. They are routinely made without argument in order to preserve the argument for an appeal. Therefore, do not be surprised by such a defense motion or expect it to be granted.

The prosecution will present its case through the testimony of its witnesses. After a witness is sworn, the prosecutor will question the witness until finished. This is called direct examination.

With rare exceptions, the prosecutor will not be permitted to ask a leading question. A leading question seeks a yes or no answer. For example, the prosecutor might ask, “You saw the defendant straddling Trayvon, didn’t you?

Notice that, in effect, the prosecutor is testifying and the witness is agreeing or disagreeing as the case may be.

If this happens, the defense attorney will object on the ground that the prosecutor is leading the witness. The judge should sustain or grant objections to leading questions on direct examination.

Notice that I qualified the rule when I said, “With rare exceptions, the prosecutor will not be permitted to ask a leading question.” The rare exceptions are set-up questions. For example,

“Mr. Slade, I direct your attention to Sunday evening, February 26th, 2012, between the hours of 7 and 8 pm. You were at home at RATL during that period, weren’t you?

After the witness says, “Yes,” the prosecutor asks another leading question to set the scene.

“Did there come a time when you heard loud voices outside your home?”

After the witness answers “Yes,” the prosecutor switches to a non-leading question like this,

“Please tell the ladies and gentlemen of the jury what you heard.”

The witness then begins narrating his answer.

You may hear the defense attorney object stating,

“I object to the narrative form of the testimony.”

The judge should sustain the objection and ask the prosecutor to pose specific questions

Direct examination usually elicits answers to questions like, who, what, where, and when.

The goal of direct examination is to set the table with leading questions to focus the attention of the witness on a subject, event or document and have them tell their story in their own words with an occasional nudge to keep the testimony focused and on track.

You may hear an occasional objection to the relevancy of a question. Relevance is determined by the matters at issue in a case. The big issue in the case is whether the prosecution can disprove the elements of self-defense and prove the elements of murder 2.

Evidence is relevant if it tends to prove or disprove an element or issue in the case.

Relevant evidence is admissible subject to certain exceptions such as uncharged misconduct, character evidence, prior criminal convictions, and hearsay. I have covered those subjects in previous articles.

When the prosecution completes the direct examination of the witness, the defense attorney has an opportunity to cross examine the witness.

The major difference between direct and cross examination is that leading questions are permissible. In fact, they are not only permissible, they are the preferred way to cross examine a witness.

The ideal cross examination limits the witness to yes or no answers. The defense lawyer knows exactly what information he or she wants to elicit from the witness and if the answer is contrary to the expected answer, the lawyer is ready to impeach the witness to get the expected answer.

The usual way this is accomplished is to confront the witness with a prior inconsistent statement. Here is an example.

Q: Mr. Slade, you testified on direct that the traffic light was red when my client entered the intersection, didn’t you?

A: Yes, I did.

Q: Do you recall when I took your deposition in the prosecutor’s office on June 16th of this year?

A: Yes.

Q: You were under oath, weren’t you?

A: Yes.

Q: The prosecutor was present right?

A: Yes.

Q: Do you recall me asking the following question and you giving the following answer?

Q: You did not actually notice what color the light was when my client entered the intersection, did you?

You answered my question, Yes, didn’t you?

A: Yes.

A skilled cross examiner never asks the witness to explain his answer. Instead, he moves on to the next subject or ends the cross.

A skilled cross examiner never asks a question, if he does not know the answer and he never permits a witness to lapse into a narrative or retell their story.

The scope of cross examination is determined by the subject matter covered on direct. If the defense attorney asks a question regarding subject matter not covered on direct, you will probably hear the prosecutor object that the question exceeds the scope. The judge will sustain those objections.

The prosecutor may question the witness on redirect after the defense attorney is done. You might expect the prosecutor to attempt to rehabilitate his witness in the example just provided. Should he attempt to do so, he will have to do it by asking non-leading questions.

The scope of redirect is determined by the subject matter covered on cross.

Redirect can lead to recross and so on until both parties are finished with the witness.

Tomorrow, we will take a look at the defense case.


Zimmerman: Pssst! Hey Buddy, I Hear You Need an Expert Witness

August 19, 2012

Let us say that you are a prosecutor representing the State of Florida in State vs. George Zimmerman. You have been added to the trial team and you are going to be in charge of forensics and expert witnesses. Angela Corey wants to meet with you tomorrow morning at 7 am sharp. What do you do?

(a) Announce you are opting for early retirement to spend more time with your family;

(b) Look up the word forensics to see what it means before you announce that you are opting for early retirement to spend more time with your family;

(c) Call the Director of the Crime Lab and ask for help; or

(d) Make sure you know how to spell forensics and then pretend you know everything there is to know about the subject.

The correct answer, as it is in all cases where you know that you are not an authority on a subject, is to contact someone who is an authority and ask for help.

Prosecutors are fortunate because they can contact the director of their state crime laboratory.

Defense counsel who know little about science and even less about forensic science need to call someone like me who can review the case, spot forensic issues, and steer the lawyer in the right direction toward knowledgeable and respected experts in the various areas of forensic science that are relevant to their case.

I used to do that when I was a co-chair of the Forensics Committee of the National Association of Criminal Defense Lawyers. All calls from member lawyers west of the Mississippi River were referred to me and I spent many hours helping people out.

Let’s take a look at the rules of evidence and see what they have to say about expert witnesses. Evidence Rule 702 provides:

Testimony By Experts

If scientific, technical or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if

(1) the testimony is based on sufficient facts or data,

(2) the testimony is the product of reliable principles and methods, and

(3) the witness has applied the principles and methods reliably to the facts of the case.

Most of the witnesses who testify in trials are fact witnesses. They testify about something that they perceived through their five senses that is relevant to determine the outcome of a lawsuit. They are called fact witnesses because, with few exceptions, they are not permitted to express their opinions about facts they observed or infer the existence of facts that they did not actually observe.

Lawyers must be ever vigilant to spot and object to a fact witness expressing their opinion by representing it as a fact they observed.

If that happens, the lawyer should stand and say,

“Your Honor, I object because this witness is impermissibly expressing her personal opinion as fact. May I briefly voir dire the witness to lay the foundation for my objection.”

The judge will allow you to break in to opposing counsel’s examination.

Then you look the witness in the eye and ask,

Q: Ms. Witness, You just testified that my client stuffed a crocodile under the back seat of your patrol car, didn’t you.

A: Yes, I did.

Q: This was on the way to the jail, correct?

A: Yes.

Q: You were driving correct?

A: Yes.

Q: Watching the road ahead of you, right?

A: I reviewed your report, but I didn’t see you mention anything about seeing a crocodile in your rear view mirror, correct?

A: Yes, but

Q: And my client was handcuffed with her wrists behind her back, right?

A: But, but she had to have done it because . . .

Your Honor, this witness expressed an opinion, which is improper. Therefore, I move to strike her testimony when she said my client hid the crocodile under the back seat.

I also ask you to instruct the ladies and gentlemen of the jury to disregard that testimony.

The judge should comply with your request. Then you thank him and sit down.

Now opposing counsel gets to resume questioning the witness.

This type of interruption can throw opposing counsel off stride, but an experienced lawyer will just smile and remind the witness to stick to the facts they observed.

Another way to accomplish the same result is to wait and do it during cross examination.

Expert witnesses, unlike fact witnesses, can express their opinions. Depending on the complexity of the case you have, there may be any number of areas where you want to put an expert witness on the stand to express an opinion regarding a matter and this is where science enters the courtroom to establish facts and resolve disputed issues of fact. We call this forensics.

Under Rule 702 an expert witness may testify in a case whenever a jury is likely to need assistance to understand or to determine a fact in issue in a trial.

There are many disputed questions of fact in the Zimmerman case that cannot be resolved by ordinary fact witnesses,

In fact, very few disputed issues of fact in this case can be resolved by the fact witnesses who are all over the place with conflicting and confusing statements about what they saw or heard.

Only one fact witness, George Zimmerman, knows what happened because he killed the other witness, Trayvon Martin.

The case would be open and shut, if there were no forensic evidence and George Zimmerman’s statements were consistent with each other and consistent with the forensic evidence. As we have seen, however that is not the case.

To solve this case, we have to put aside our fear of science, roll up our sleeves and grapple with science.

Okay, now pick a side, either defense or prosecution and pretend you have to meet with Mark O’Mara or Angela Corey tomorrow morning and tell them in which areas of science they need to retain experts.

We already know some areas from the reports we have read: DNA, blood spatter, pathology, toxicology, firearm identification, trace evidence analysis, audiology, voice stress voice comparison analysis.

What other areas of science do you think should be investigated?

Another thought to consider is that our legal system is an adversarial system where each side hires its own experts to fight it out in front of a jury that knows little about science.

Would it be better to have the court appoint independent experts to to examine the evidence and testify subject to cross examination by both sides?

Should the Court or the jury decide disputed issues that can only be resolved by scientific analysis?

What about the problem of junk science?

Pleasant dreams.


Will George Zimmerman Testify?

August 18, 2012

Many of you have asked questions regarding whether George Zimmerman must testify at the immunity hearing or at trial. Others, particularly Zimmerman supporters, have expressed an opinion that he can prevail without having to testify because he already said everything that needs to be said to the police.

The quick answer is he is not legally required to testify, but he cannot possibly win unless he does testify. How else does he get his self-defense claim into evidence?

Yet, at the same time, he probably cannot win because of his many conflicting statements.

First, every defendant in a criminal case has a 5th Amendment right to refuse to testify and, if they decide not to testify, the jury will be instructed that it cannot assume anything regarding why the defendant chose not to testify.

The reason for this rule is that a defendant may decide not to testify for any number of possible reasons and it would be unfair to allow the jury to speculate as to the “real” reason. In addition, a defendant cannot be punished for exercising a constitutional right.

Second, every defendant has a right to testify, if he decides to do so. The decision to testify or not to testify is his and his alone. The defendant’s lawyer can recommend for or against testifying, but it’s up to the defendant to make that decision.

Third, if the defendant testifies, he can be cross examined regarding everything he said and the Court will grant a prosecutor wide latitude to cross examine.

Therefore, George Zimmerman gets to decide whether he will testify at the immunity hearing and the trial.

Next, let’s take a look at all of his statements to date and group them into two categories: statements to police officials during custodial interrogations and statements to other people.

Statements to police officials during custodial interrogations are admissible at trial,

(1) if he was advised of his 5th Amendment right to remain silent and his 6th Amendment right to contact an attorney and have him present during the interrogation; and

(2) he voluntarily, knowingly and intelligently decided to waive or give up those rights and answer questions.

This is the foundational requirement that the prosecution must satisfy to introduce a defendant’s custodial statement into evidence. It is based on Miranda v. Arizona, 384 U.S. 436 (1966). I have reviewed the discovery and believe all of his custodial statements satisfy the Miranda Rule and are admissible subject to the hearsay rule.

Statements to others, including the Sean Hannity interview, have no foundational argument like Miranda and are admissible, subject to the hearsay rule.

Now we get down to the difficult part of the analysis, which is understanding the hearsay rule.

Let us begin with a definition. Evidence Rule 801(c) defines hearsay as follows:

“Hearsay” is a statement, other than one made by the declarant (i.e., the person who made the statement) while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.

For example, if Blue Shenanigans were to testify that George Zimmerman (i.e., the declarant) told her he knew Trayvon Martin was dead before the police arrived at the scene, and the prosecution offered it during its case in chief to prove that he knew Trayvon Martin was dead before the police arrived at the scene (i.e., the matter asserted in the statement), the statement would be hearsay.

Right?

Nope, because even though it meets the definition of hearsay, the rules of evidence carve out a huge exception to the rule that’s called an Admission by a Party Opponent. See Rule 801(d)(2). This rule specifically defines admissions by a party opponent as non-hearsay.

This is the way it works. George Zimmerman is a party to this case because he is the defendant. The party opponent is the State of Florida, which is represented by the Angela Corey and her team of prosecutors.

Pursuant to this rule they can introduce into evidence any statement by Zimmerman that they choose, including his custodial statements to the police, assuming they satisfy the Miranda rule, which they apparently do.

Notice that they are not required to introduce any of his statements and the defense has no say in which statements they introduce and which statements they leave out.

This means that all of the exculpatory statements he made to support his claim of self-defense are inadmissible hearsay, unless the prosecution decides to offer one or more of them as an admission by a party opponent.

Needless to say, the prosecution is not going to do him any favors and introduce any of his exculpatory statements and, since the defense cannot introduce them, the judge will not be able to consider them during the immunity hearing and the jury will never get to hear them at the trial.

But that’s not fair, you say.

That complaint happens in every courtroom across America every day, but it’s the law.

This is why, as a practical matter, George Zimmerman must take the stand and testify.

Can he refer to his exculpatory statements while he is testifying?

No, because they are hearsay.

What happens after he finishes telling his side of the story by answering his lawyer’s questions on direct examination?

The prosecutor who cross examines him will confront him with every statement he made to a police official or to any other witness it knows about that is inconsistent with or contradicts a statement he made while testifying on direct examination.

Given the number of times he has made improbable, inconsistent and contradictory statements, the cross examination could last several days.

I know this because I have done it to witnesses many times.

Cross examination by confronting witnesses with their prior inconsistent statements is one of the most effective and powerful tools a trial lawyer has to utterly destroy a witness.

The key to cross examining George Zimmerman will be not to beat him up so bad that the jury begins to feel sorry for him.

This is why it is so vitally important for suspects to keep their mouths shut when they are questioned by police. They cannot help themselves because their exculpatory statements will be inadmissible hearsay at trial. They can only hurt themselves by saying something that the prosecution uses to damage their case pursuant to the admission-by-a-party-opponent rule.


The Decision From Hell (Part 2)

December 28, 2011

Yesterday, in Part 1 of this post, I critiqued the first part of the Court of Appeals decision affirming the trial court’s denial of her pretrial motion to suppress evidence.

I concluded that the Court of Appeals erred because it improperly relied on evidence (1) obtained after the deputy stopped Crane Station and (2) facts invented by the trial court. The Court of Appeals also (3) erroneously claimed that her appellate lawyer had failed to challenge any of the trial court’s findings of fact. I provided links to the decision by the Court of Appeals and Crane’s Opening Brief on Appeal and her Reply Brief.

In a related post today entitled How Could Judge Taylor Forget Garcia v. Commonwealth, I discussed a decision he wrote reaching the opposite conclusion on a set of materially indistinguishable facts. You may find that to be an interesting and helpful follow-up to Part 1 since he is one the three judges who decided her case. I also referenced Crane’s Petition for Rehearing of the decision by the Court of Appeals just so there is no misunderstanding or confusion regarding whether her lawyer challenged the findings of fact.

This first part of the decision by the Court of Appeals stands for the proposition that a motion to suppress based on an argument that a police officer lacked a reasonable suspicion to stop someone can be decided on the basis of information he acquires after the stop. Likewise an argument that a police officer lacked probable cause to arrest can be decided on the basis of evidence that turns up after the arrest. Both principles are contrary to long established federal and state case law and eviscerate the Fourth Amendment.

Therefore, the Kentucky State Supreme Court must grant discretionary review and reverse the Court of Appeals. If it does not, trial courts across the state will create havoc by following the decision by the Court of Appeals and denying motions to suppress in violation of a long line of state and federal cases. Eventually, the Supreme Court would have to grant review in one of those cases and overrule the Court of Appeals in the Leatherman case.

That is why it is necessary to grant discretionary review.

Today, I will critique that part of the decision that deals with Crane’s statement that her watch had fallen behind the seat during the ride to the hospital and her request for the deputy’s assistance to retrieve her watch for her.

Tomorrow in Part 3, I will deal with the final issue; namely, the decision by the Court of Appeals that the trial court properly denied her motion for a directed verdict of acquittal on the DUI charge. Due to the length of today’s article, I have decided that I should discuss the latter issue in a separate post.

When Deputy McGuire assisted Crane to get out of the back seat of his patrol vehicle at the hospital (because she was handcuffed with her hands behind her back), she told him that her watch had fallen off her wrist and dropped behind the rear seat during the ride. She asked him to please retrieve it for her. That is undisputed.

At the preliminary hearing, McGuire testified that, after they returned to his vehicle following the blood draw, he pulled the seat back, saw the watch and the suspected controlled substance near it, and seized both of them. When her lawyer asked him if he could see the two items before he pulled the seat back, he said. “No.” However, at the suppression hearing, he testified that he saw both items in “plain view” sitting at the top of the seatbelt crack next to where she was sitting when he opened the door to assist her to get out of his vehicle at the hospital.

Those two statements are mutually exclusive. They cannot both be true and there is no question that Crane’s lawyer was entitled to challenge the deputy’s credibility at trial by impeaching him with his prior inconsistent statement under oath at the preliminary hearing. Nevertheless, the trial judge sustained an improper objection by the prosecutor to that line of inquiry preventing him from eliciting the inconsistent statement.

Why did the trial judge do that?

Before jury selection, the trial judge granted the prosecutor’s motion in limine (i.e., at the beginning) for an order preventing the defense from introducing Crane’s statement about her watch and her request for his assistance in retrieving it on the ground that her statement was inadmissible hearsay.

I have addressed this issue previously in Hearsay, Part Deaux.

The judge’s ruling was improper because the statement was not hearsay, since it was not offered to prove the truth of the matter asserted in the statement. It was offered to show that, as a result of something she said (and it really does not matter what it was, which is why it was not offered to prove the truth of the matter asserted), he pulled the seat back to look for her watch and found both the watch and the suspected controlled substance in proximity to each other.

There is nothing misleading or improper about allowing the jury to hear that evidence because that is the way it happened, according to the deputy’s testimony at the preliminary hearing.

Instead, the jury only heard the deputy’s trial version of his discovery, which was that he found her watch and the suspected controlled substance in plain view on top of the rear seat in the seatbelt crack right next to where she was sitting. To make matters worse, in his final summation the prosecutor said the proximity of her watch to the suspected controlled substance in plain view amounted to her “autograph” on the controlled substance and she had not offered any explanation for how they happened to be in plain view together in the seatbelt crack right next to her.

It’s not surprising in the least that the jury found her guilty of possession and evidence tampering for attempting to conceal the rock of crack. Would the jury have convicted her if they knew that the deputy found the rock not in plain view, but under his back seat because she asked him to retrieve her watch from under the seat?

I do not believe the jury would have convicted her because who would ask a police officer to retrieve their watch from under the seat, if they had lost the watch while attempting to slough a controlled substance?

That was her defense, but the trial judge took it away from her with his ruling in limine.

The Court of Appeals did not decide whether her statement about her watch and request for his assistance to find her watch was inadmissible hearsay. Instead, it dodged the issue by saying the error, if any, was harmless because she could have testified about her statement and request. Indeed, the Court of Appeals noted that the trial judge told her that she could testify about it.

Why does this not make any sense?

(1) If the statement were hearsay, it is not admissible, whether or not she testifies. That is the law and the trial judge cannot create an exception that does not exist.

(2) She had a constitutional right under the Fifth Amendment not to testify and a right to have the judge instruct the jury that it cannot hold her silence against her. In other words, silence is not evidence of guilt.

(3) The judge’s unlawful exception was a manipulative and coercive effort to force her to testify against her will in violation of her Fifth Amendment right to remain silent and not have her silence held against her.

(4) If she had testified, the jury would have been presented with a classic he-said-she-said controversy in which he said he found her watch and the rock together in plain view at the top of the seatbelt crack on the seat right next to her, and she said he found it under the seat after she asked him to look for her watch. Not even the longest long shot Louie at Hialeah would put a fin on her fate in such a swearing contest.

(5) Who could deny that the odds on the outcome of that he-said-she-said swearing contest would change dramatically, if the jury found out that the deputy had previously testified under oath at the preliminary hearing, about a week after her arrest, confirming her statement. The suppression hearing was five months after her arrest and the trial was 18 months after her arrest, by the way. There can be little doubt that the jury would have believed her and disbelieved his plain-view testimony. Then their whole case falls apart.

(6) That is why her lawyer’s attempt to cross examine the deputy by impeaching him with his prior inconsistent statement under oath at the preliminary hearing was proper and legitimate.

To call this error harmless is disingenuous and absurd. But guess what? That is not even the right test. Why is it not the right test?

The trial judge’s order in limine and his ruling preventing her lawyer from impeaching the deputy with the deputy’s prior inconsistent statement under oath at the preliminary hearing took away her defense.

A defendant in a criminal case has a constitutional right to put on a defense and her right to do that was denied to her by the trial judge’s rulings and aggravated by the prosecutor’s closing argument in which he commented on her silence, which is forbidden by the Fifth Amendment. He also attempted to switch the burden of proof over to her to prove her innocence, which is a denial of due process of law under the Fifth and Fourteenth Amendments.

When the court and a prosecutor violate a defendant’s constitutional rights, the test presumes the error affected the outcome of the trial and the prosecution must rebut that presumption by proof beyond a reasonable doubt that it did not.That is a far different test from the one employed by the Court of Appeals.

There is no way the prosecution can meet its burden in this case. Therefore, the Court of Appeals must be reversed on this issue.

Until tomorrow . . .


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