Saturday, November 02, 2013


Much to our surprise, the jury in the Sean Taylor murder case did not reach a verdict Friday and deliberations will resume Monday.  More on trial strategy below. 

What is Rumpole Reading? 
"Days Of Fire: Bush and Cheney In The White House".  The events where you thought Bush was dead wrong, now seem less certain. The events where Bush triumphed now seem less clear. A thorough and well researched book, supported by interviews with the players closest to the President and Vice-President. Well worth the time. The chapter on the day of 9/11 reads like a thriller. 

Rumpole's fourth rule of jury trials has been the source of much discussion in the comments section, not to mention blistering emails. 
First, there are of course circumstances where you client must testify; self defense being the most obvious. Those are not the cases we are talking about. 

A defendant enters a trial with very few advantages. Prospective jurors walk into the courtroom wondering just what your client did to get there? No amount of questioning on the presumption of innocence and burden of proof changes that basic human emotion. The best you can do is to select jurors who acknowledge that emotion and can agree to put it aside, and even that is an iffy proposition at best. 
As the case proceeds, the next advantage the defense has is that the jurors are expecting a lot from the prosecution. They think the crime scene detective and their labs are superbly trained and able to extract evidence from the most innocuous crime scenes. They believe the detectives are smart and highly trained (depo tip- ask every cop and detective how far they got in school. 95% of them do not have a college degree.).  As the evidence unfolds and the defense is able to show that the police did a fair job at best, made some mistakes, made some crucial assumptions that might not be true, overlooked possible explanations for seemingly inculpatory evidence, the concept of reasonable doubt and burden of proof begins to become more concrete for many jurors. 
Now you get into the non-professional witnesses. Who has a grudge? Who has a reason to lie? Who hasn't seen what they thought they saw? A defense based on poor police work and unsure witnesses begins to emerge. The state rests. 

The Defense's Case: 
Are there alibi witnesses? Are there witnesses that were present that contradict what the strongest state witnesses testified to? Are there expert witnesses who contradict the work of the police and the theory of the prosecution? All of these types of witnesses, along with the problems already exposed during the state's case in chief can lead to an acquittal. 
Then the defendant testifies. 
All the work you have done up until that point goes out the door. 
The burden of proof dissolves. The standard of proof beyond a reasonable doubt disappears.
The verdict now comes down to one and only one point: Was the defendant believable? If the jury doesn't believe your client, then no matter how weak the case, no matter how many problems you have exposed with the proof, a significant segment of the jurors will enter the jury room with one thought: "can you believe that story the defendant told?

In our experience, the trade off is not worth it. Your client is not a professional witness. The jury is not likely to forgive his or her inability to answer a crucial question. In the Sean Taylor case, the issue arose over whether the defendant Eric Rivera was wearing a certain type of sneaker linked to the crime. On the stand he denied it. On cross, prosecutor Reid Ruben asked Rivera where the sneakers he claimed he was wearing were? Rivera, not prepared for the question, stumbled and looked to his defense attorneys. 
It was a moment considered significant by most court observers. 

Consider for a moment the unlikely scenario that Rivera is completely innocent. That the prosecution represents a tragic error in judgment. A moment like Rivera's hesitation and stumbling is seen by the jury as a defendant being caught in a lie. To a juror, that means he is guilty. They fixate on that moment, and ignore the rest of the evidence, no matter how weak it is. Because for a juror, the possibility that an innocent defendant may be caught in a lie is inconceivable, and yet we know that many of our clients who are innocent or less culpable, lie to the police and to us for reasons unrelated to the case. 

In our experience, the trade offs are not worth it. It is an extremely dangerous and highly risky move to have your client testify. You should almost never do it. 

Enjoy your weekend. 


Anonymous said...

I know it's off topic but maybe you or your readers can help. My GF and I have this continuing argument we cannot settle and it's beginning to interfere in other ways. We are both history buffs. I say Admiral Halsey was tricked by the Japanese at the battle of Leyte Gulf and narrowly avoided a disaster, she says Halsey was fully aware of what he was doing and was executing a feint with his carriers which lulled the Japanese task force in close where they were successfully attacked. Neither of us will back down. Can anyone help settle this argument? Please.

Anonymous said...

What do you make of the Defense requesting to ask for a mistrial/questioning the jury about the statute book if the jury came back with a guilty verdict? Is that even proper?

Rumpole said...

Well its a I want to have my cake and eat it too. Nice request. No chance in hell would be granted. If the action is sufficient to cause a mistrial you have to ask for it right away. Appellate courts don't allow the type of conduct the defense wanted to engage in. But nice try

Anonymous said...

Thirty years ago fresh out of law school I sat in on a a trial between a well prepared, efficent and effective asa and avery old fat lawyer who seemed to be badly hungover. The lawyer had been admitted before the bar exam and appeared to have done very little reading of law since his admission. The lawyer would ask the witness whether they were sure they could id the client and other absurdities, it looked like a clown show. The defendant was charged with animal cruelty and based on the evidence and skill of the defense lawyer I expected the jury would convict the defendant without visiting the jury room. The asa was concerned that the jury would be so upset with the incompetent defense that they would present their own. Sure enough the jury acquitted. Since then Ive seen the phenomenom repeated often enough to become almost predictable. The opposite, where the defense lawyer is too slick and effective many times forces the jury to come to the aid of the poor, overwhelmed prosecutor. The goings on in the Taylor trial reminded me of this, the defendants perfomance on the stand combined with a defense which is usually laughed at, appears to have moved the jury to take up the defense of what they see as an obvious idiot.

Anonymous said...

The prevailing and generally accepted opinion is that the Japanese tricked Halsey. They knew his reputation for being hot headed and wanting to seek action, so they created a fake carrier group and sent fake radio traffic designed to lure Halsey's carriers to leave Leyte Gulf undefended. Clearly Halsey went charging off towards this fake carrier force with his task force 34, leaving the San Bernidino Straits completely unguarded, which allowed the real Japanese carrier group of Admiral Kurita free passage. Conventional wisdom has it that Kurita, emerging from the straits ran into Admiral Clifton Sprague's light carrier task force, but not realizing that Halsey has fallen for the bait, thought he had run into Halsey's 3rd Fleet instead of the light portions of the 7th fleet that he had in fact run into.
The light Cruiser Johnson of Clifton Sprague's attacked first. Adm Clifton Sprague then sent the rest of his ships to attack ( the famous order "small boys attack!") while Adm Thomas Sprague (no relation) joined the fight with his sixteen light carriers. The ferocity of the attacks convinced Kurita that he had in fact encountered Halsey's main battle fleet and he withdrew. A portion of Halsey's seventh fleet arrived just a bit too late to trap Kurita, leaving some to wonder whether this was Halsey's plan all along. However, as we shall later see, Adm Kincaid's battle group was set upon by the Japanese and he called out desperately for help from Halsey's main Task force 34, leading to the infamous plea for help: "Where is Task Force 34? The World Wonders."
More later.

Anonymous said...

Without the "confessions", the state's case is a non starter. With the multiple confessions, the states case is strong. To beat the case, the defense had to show that client was and is a knucklehead. They did that. Remember, this kid is now 5 or six years older and he is still a knucklehead. And the defense needed to show how the cops took advantage of this knucklehead. He took the stand and was shown to be a silly knucklehead, no match for the "great" Reid Rubin. The cross merely exhibited that the defendant could have easily been manipulated by authority figures. And if one mom or dad on that jury sees that the knucklehead could have been their son, hung jury or lesser or NG is more likely. So Rumpole, this is one of those rare cases where the knucklehead needed to take the stand.

Anonymous said...

Well said 704

Anonymous said...

Real Former Judge, can yo answer the question for 11:42 a.m.?

MC Waste Services, Inc said...

http://www.miaminewtimes.com/2013-10-31/news/richard-dunn-miami-commission/ UNCLE LUKE FOCUSES ON WRONG ISSUES

Anonymous said...

While you do make some good points, I had my client testify in 5 of my last 10 trials. 4 acquittals out of 5 ( no self defense cases ) when deft on stand. Not a large sample, not scientific but it's been working for me.

Anonymous said...

Where's football? You running the marathon?

Anonymous said...

Halsey screwed up. He was jealous of Spruance and wanted to match the Midway win. Nimitz told him what to do but Halsey went for glory. He would have beat them even with his battleships back in the strait.

Naval Historian said...

Over simplistic analysis of a very complex situation. What we can say is the the Battle of Leyte Gulf represented a crushing defeat for the Japanese navy and that after that battle the Japanese navy never sailed as an offensive force again. The defense of the home islands was now firmly in the hands of the army and the airforce which started the infamous kamikaze attacks in the Battle of Leyte Gulf.

Anonymous said...

Will the proponents of the "silly knucklehead" theory please explain what accounts for the Rivera verdict? Not being snarky, just a prospective law student trying to understand all the angles...