Opening Statements Today in Boston Marathon Bombing Case

March 4, 2015

Opening statements are not evidence and they are not arguments. They are statements by the lawyers to sketch out their respective cases for the jury. Think of them as guided tours of the witnesses to be called and the evidence to be introduced. They are often described as roadmaps of the case and you can reasonably expect many sentences will begin with the phrase, “The evidence will show . . . “

Since the burden of proof is on the prosecution, the defense is not required to give an opening statement, but it would be foolish not to do so because they will not get another chance to speak to the jury until after the prosecution finishes putting on its case-in-chief, which will likely take several months.

I always gave an opening statement after the prosecution’s opening so that I could break their momentum and get the jury thinking about my case and I believe the defense will give an opening statement today for the same reason.

As I have said before, I do not believe this case is about winning or losing for the defense. It is about living or dying. From the defense perspective, they are going to be using the guilt/innocence phase of the trial as a slow motion guilty plea emphasizing evidence that mitigates the offense.

The defense has three powerful mitigators: Dzhokhar’s youth and immaturity, his absence of a serious criminal record, and most importantly, his fawning and submissive relationship with his older brother Tamerlan. When Tamerlan said, “Frog,” Dzhokhar said, “How high do I jump?” Beginning with their opening statement, I expect the defense will emphasize these mitigators every time an opportunity arises.

I am not expecting the defense to advance any elaborate government conspiracy theory to frame the Tsarnaev brothers. I do not believe there is any evidence to support such a theory and pursuing it would likely infuriate the jury and assure a death sentence. This does not necessarily mean they will refrain from mentioning and exploiting errors of commission or omission by law enforcement.

To our readers: Crane and I have been posting regularly at Firedoglake during Jane Hamsher’s hiatus from the site. She is the owner. You can expect to see my articles here more often as I am now growing more comfortable handling my responsibilities there.


Dzhokhar Tsarnaev: Opening Statements

January 15, 2015

Thursday, January 15, 2015

Good morning:

I write today about the purpose of an opening statement in a jury trial in a criminal case and distinguish it from a closing argument, which I regard to be considerably less important. Generally speaking, if a defendant’s lawyer has failed to persuade jurors that a reasonable doubt exists before closing arguments, nothing the lawyer says during closing argument is going to prevent a guilty verdict.

After a jury has been selected and sworn, the lawyers have an opportunity to preview their respective cases for the jury. We call this opportunity the opening statements of counsel. Notice that I use the word ‘statement,’ rather than the word ‘argument.’ A statement is a description of the evidence that will be introduced during the trial. An argument is an interpretation of the significance of that evidence. When lawyers give their final arguments, after the evidence has been admitted and both sides have rested, they are summarizing their respective cases and attempting to persuade the jury to either return a verdict of guilty (prosecutor) or not guilty (defense).

Most lawyers believe closing arguments are the most important part of a trial. I disagree because, in my experience, jurors have already formed an opinion about the guilt or innocence of the accused before closing arguments. If a lawyer fails to take care of business during the evidentiary part of the case, they are not going to be able to change juror’s opinions no matter how persuasive they believe they can be.

As I’ve said many times, jury selection is the most important part of the trial because lawyers are selecting the people who will decide the case. Select the wrong people and there will be little to no chance of winning. Opening statements come in a close second because that is the first time that a lawyer can tell the jury about his case.

Since prosecutors have the burden of proof, they go first. Opening statements by prosecutors are like road maps with many sentences that begin with this phrase, ‘We expect the evidence will show that this defendant (fill in the blank). You will hear from witnesses who were present when he did it and they will tell you what he did. If done properly, everyone in the jury box will think the defendant is guilty.

Although the defense is not required to give an opening statement, only an incompetent fool would reserve or waive it. Particularly in a lengthy and complex case like the Boston Marathon Bombing case, the prosecution may take several months to put on their case. Defense has to say something to persuade jurors to reserve judgment until the case is over. This requires focusing their attention on weaknesses in the case.

We will get a much better idea about the strength of the government’s case when they give their opening statement. We will also be able to tell what the defense will be.

Opening statements should happen sometime during the first two weeks of February.

FYI: Judge O’Toole denied a new defense motion for a continuance of the trial based on the extensive publicity about the Paris terrorist attacks, which they claimed might adversely influence prospective jurors against Dzhokhar Tsarnaev.


#TheodoreWafer porch-shooting case: Defense claims Renisha McBride was not alone when she banged on his door

July 23, 2014

Wednesday, July 23, 2014

Good afternoon:

Despite an incredibly messed up and ultimately failed effort to livestream the trial today, the prosecution and defense gave their opening statements in the Theodore Wafer porch-shooting case.

With the exception of something defense attorney Cheryl Carpenter said during her opening statement, we did not learn anything new.

Oralandar Brand-Williams tweeted,

wafer atty says he was sound asleep the heard “boom, boom, boom, boom” (shouting loudly) about noise she says he heard

wafer cld not find his cell phone, defense atty says. he goes to the kitchen..he is not armed..looking for cell phone..”‘his heart is racing

wafer looks outside and sees not 1 person but 2/ more people..the door was shaking..people were trying to get in, wafer believed, says atty

ted is thinking they’re coming to get me..they’re breaking into my house, says wafer atty.

he’s thinking go away..leave me alone..he goes to get his shotgun.it’s not his first decis. he doesn’t know what else to do, wafer atty says

Marie Osborne adds via twitter:

#TheodoreWafer trial defense: Grabs shot gun AFTER hearing repeated bangs on his front and side door. “Never so scared in his life”

#TheodoreWafer Defense: “He sees a figure and shoots. He looks and knows immediately it’s a shorter person, a woman”

Now, back to Oralandar Brand-Williams,

atty says he didn’t know if renisha was african american, arab, hispanic when he shot her to death.

My comment today:

I wonder who these other mysterious people were and if he told the police about them.

He didn’t mention them to the 911 operator.

We will find out tomorrow if Wafer mentioned these other people to the detectives. My guess is they will deny that he did and hopefully they video and audio recorded what he told them so there will not be any doubt what he said.

Until tomorrow at 9 am EDT.

This is our 1151st post.

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Thanks,

Fred


Theodore Wafer: opening statements today in porch-shooting case

July 23, 2014

Wednesday, July 23, 2014

Good morning:

Opening statements in the Theodore Wafer porch-shooting trial are scheduled to start today at 9 am EDT.

The precise legal questions to bear in mind as you listen to the lawyers lay out their respective cases in their opening statements are:

(1) whether Wafer acted reasonably when he opened his locked front door and fired his shotgun through his locked screen door killing an unarmed Renisha McBride, and

(2) whether he acted reasonably depends on whether a reasonable person in his situation would have believed himself to be in imminent danger of being killed or suffering serious bodily injury.

Wafer must be presumed innocent. The prosecution has the burden of proving that Wafer did not act reasonably when he shot and killed McBride.

The issues are the same in the Pistorius case.

Although the circumstances vary somewhat, both men fired through locked doors killing their respective victims on the other side.

Did they reasonably believe themselves to be in danger of death or serious bodily injury?

You be the judge.

A news station in Detroit is LiveStreaming this morning here:

http://www.wxyz.com/live2

Split your screen. Watch the opening statements on one and comment on the other.

This is our 1150th post.

If you appreciate what we do, please make a donation to enable us to keep the lights on.

Thanks,

Fred


Opening Statements completed and four witnesses testify in Zimmerman trial

June 25, 2013

Monday, June 24, 2013

Good morning:

We have completed the first day of trial and it was bizarre.

Jim Guy’s opening statement was unlike any opening statement that I have ever heard. Focused and powerful it seemed more like a persuasive closing argument or summation of the evidence than an opening statement.

Opening statements are opportunities to educate jurors, who likely do not know very much about the case. Therefore, the emphasis should be on clarifying rather than selling a point of view. That is why lawyers preface statements about the evidence during opening statements with the introductory phrase, “We believe the evidence will show,” or establish something certain about the case.

The goal is to keep the presentation simple, accurate and relatively easy to recall (the KISS rule). Argument, spin and minutiae are not helpful.

The defense opening statement was too long, too argumentative and too detailed.

On multiple occasions Mr. West violated a fundamental rule of opening statements by asserting certain facts as undisputed when they are disputed. He also made false assertions of fact that can easily be disproven.

The prosecution called four witnesses:

1. Chad Joseph

He is Brandi Green’s 15-year-old son. He and Trayvon were playing a video game when Trayvon said he was going to walk to the 711 and asked him if he wanted anything. He said Skittles. Trayvon left and he never saw him again. He was wearing headphones and could not hear.

2. Andrew Gaugh

He was the clerk at the 711 who handled Trayvon’s transaction. He does not have an independent recollection of the transaction.

3. Sean Knopke

He was the 911 operator who fielded GZ’s call. Denies that he would have told GZ to folloe or find Trayvon and call him back with the update. They have a policy that prohibits doing that.

4. Ramona Rumph

She is the custodian of records for the 911 call center. She brought the records for all of GZ calls.

O’Mara objected when the prosecutor began to question her about a previous 911 call by the defendant that is almost identical. The implication is that the defendant has a script that he uses to report suspicious activity.

Basis of the objection: inadmissible uncharged misconduct pursuant to Rule 404(b).

Discussion ensued without a resolution. Judge Nelson recessed the trial until 8:30 am EDT when she will resume the discussion regarding O’Mara’s objection.

She told the jury to return at 9 am.

SUMMARY: Prosecution off to a good start. Defense stumbled badly out of the gate with a poor opening statement and both defense counsel exhibited poor judgment, lack of respect for Judge Nelson and the dignity of the Court, and anger management issues.

Defense hostility and lack of respect for Judge Nelson is obvious. The jurors cannot have failed to see it and likely were offended. Difficult to respect defense counsel when they act like spoiled children.

I will see you all at 8:30 am EDT.

Here’s the link to the livestream coverage.

http://www.nbcnews.com/video/nbcnews.com/52117880/

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Opening statements in the Zimmerman trial today

June 24, 2013

Monday, June 24, 2013

Good morning:

Opening statements are scheduled to begin at 9 am EDT, but they probably will not start before 9:15 because both sides are going to want to get a ruling from Judge Nelson before opening statements on the defense argument that several statements by the defendant after the shooting to W13 and the police are admissible pursuant to the res gestae exception to the hearsay rule.

She previously granted the State’s motion in limine to exclude all of the defendants statements after the shooting on the ground that they were self-serving hearsay. The statements at issue today were excluded pursuant to that ruling. Therefore, the defense cannot mention them in their opening statement, unless Judge Nelson reverses her earlier decision regarding these particular statements.

They want to mention the statements during their opening statement because GZ said he killed TRayvon Martin in self-defense.

The State likely will oppose the defense motion with an argument similar to the one that I made in my Friday evening post.

I believe opening statements are extremely important because they provide the first and only opportunity for each side to explain their respective theories of the case to the jury and briefly discuss the supporting evidence. Many lawyers compare an opening statement to a road map. If a lawyer makes a good opening statement, jurors will have a good overview of the case and the evidence that will be presented. If a lawyer makes a bad opening statement, the jurors will be confused and not know what to expect.

An opening statement should not exceed 20 minutes. Therefore, clarity and brevity are important. Detail, not so much.

An opening statement is not an argument. For that reason you will hear the lawyers often say, “We expect the evidence will show ABC or XYZ.

If a lawyer starts arguing what the evidence means, you should expect opposing counsel to object.

Prior to opening statements, Judge Nelson will instruct the jury that the remarks of counsel are not evidence.

Evidence consists of the testimony of the witnesses and the exhibits admitted by Judge Nelson.

I am hoping the State will mention what the evidence will show about GZ’s phone calls before and after he killed Trayvon.

Bernie de la Rionda (BDLR) has to decide whether to introduce any of the defendant’s statements during the State’s case in chief or save them for rebuttal.

He could do it either way, but the less he introduces during his case in chief, the more likely GZ will testify.

Here’s the link to the livestream coverage.

http://www.nbcnews.com/video/nbcnews.com/52117880/

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Zimmerman: Day 7 of Jury Selection Completed

June 18, 2013

Tuesday, June 18, 2013

Good afternoon:

We have reached the magic number of 40 prospective jurors (PJ) passed for cause on the issues of hardship and exposure to pretrial publicity.

1. B-12
2. B-29
3. B-76
4. B-7
5. B-35
6. B-37
7. B-51
8. B-86
9. E-6
10. E-40
11. E–54
12. E-73
13. M-75
14. B-61
15. B-72
16. E-22
17. E13
18. E-28
19. K-80
20. K-95
21. P-67
22. G-14
23. G-29
24. G-47
25. G-63
26. G-66
27. G-81
28. H-6
29. H-7
30. H-18
31. H-29
32. H-35
33. H-81
34. H-69
35. H-86
36. I-5
37. I-19
38. I-24
39. I-33
40. I-44

As I have previously described the likely process:

When she gets to 40, she will gather that group together seating the PJs in the jury box, and subsequently the benches, in the order in which they were called and likely instruct them to raise their hands indicating an affirmative answer as she asks a series of questions, pausing to record each PJ’s affirmative answer to each question.

For example, she might ask for a show of hands by each PJ who has been a victim of a crime and write down each PJs number who raises their hand.

After she completes her list of questions, the lawyers, starting with Bernie de la Rionda, will question the first PJ on the list (B12) regarding each question she answered affirmatively. After both lawyers have finished with B12, they will pass or challenge her for cause. If she is excused, she will be replaced in the box by PJ B51 (she is 7th in the order).

This process will be repeated with B51 until she is passed or excused for cause. If she is excused, her seat will be taken by B55. If she is passed, the lawyers will question B29, the PJ in the second seat in the box.

This procedure likely will be followed until 30 PJs have been passed for cause.

Then the lawyers will exercise their peremptory challenges, which is usually done secretly with the lawyers passing back and forth a sheet of paper alternately listing a PJ number until one or both sides exhaust their allotment of peremptory challenges.

If one side accepts the jury of 6 before exhausting their peremptories, they retain the right to use a peremptory challenge to excuse the PJ who replaces a member of the jury struck by their opponent after they accepted the jury.

Judge Nelson announced in court that she intends to begin at 9 am EDT and recess at 3:45 pm EDT, if jury selection has not been completed.

She will reconvene court at 4 pm EDT for the State’s rebuttal case in the Frye Hearing.

The State is going to call one witness: Tom Owen.

Jury selection will resume Thursday morning and continue until completed.

Opening statements will follow jury selection.

I estimate Friday morning for opening statements.

See you in court tomorrow morning at 9 am EDT.

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