DOMESTIC VIOLENCE DEFENSE – PART 7 TRIAL
Like every other segment in this series, we need to pick up where we left off in earlier segments and ask an important question:
# 1 – What was our true intention in setting the case for trial? Did we actually want a trial, or were we just seeking a better offer – taking a chance that the prosecutor, the police or the government’s witness(es) would have some sort of problem / fail to make themselves available and/or commit to showing up?
***NOTE*** In earlier segments I had mentioned that this strategy was inherently RISKY – and that you may or may not be able to stomach that risk, so we would have long-since discussed that too.
Q – What risk? What do you mean?
A – The RISK I am referring to is that you may lose / have already lost your original plea offer. Whether or not that will happen will vary depending on the prosecutor and sometimes the judge. As mentioned before, judges have a lot of power. Some judges have a POLICY of no plea negotiations past the last pre-trial court date. Some prosecutors have that policy/reputation. The most courteous, professional thing we are SUPPOSED to do as lawyers is just to be honest and consistent in plea negotiations, but in reality it is not always that way.
Question – What do you mean “starting over from square one” in plea negotiations and what is an “open plea”?
Detailed Answer – Most cases will play out sequentially as follows over the course of many months:
1 – Arrest,
2 – charge(s) filed or dismissed,
3 – (if charges filed) Arraignment, plea (not guilty)
4 – discovery provided, we review discovery,
5 – early plea offer made by prosecutor and we make any counter-offer(s), ***OFFERS MAY BE REVOKED PERMANENTLY HERE***
6 – We file any motions, argue those motions
7 – The judge sets the case for trial,
8 – We have a trial, get a verdict
Some prosecutors (not all) will REVOKE a plea offer (that you rejected) at the point of # 5 above. This would put you back to square one, with no offer – leaving you with the options of either going to trial or entering an open plea.
When I say enter an “open plea” I mean that it was NOT NEGOTIATED with the prosecutor. You are throwing yourself on the mercy of the court. This is almost ALWAYS a bad idea – and could be nerve-wracking for anyone. In a strict division you could lose your plea offer at # 4 above, for good. It is our job to know that either from experience, from feel or a combination of both.
In summary, so long as you can stomach the risk of starting over at square one in plea negotiations i.e. potentially entering an “open plea”, and also the risk of actually trying the case, then you will be fine and make an informed decision.
In a division where plea negotiations are free to continue up to the last minute before trial – sometimes a great offer comes in at the 11th hour. In that case your risk will have paid off. Sometimes prosecutors are FORCED to give you a deal, because over the weekend before trial, they had problems with a witness that were not anticipated. Witnesses recant testimony, they lie to prosecutors, leave town, they get charged with new crimes that affect their credibility. This may have been the first time the prosecutor actually picked up the phone and spoke with, or met in person with the ALLEGED victim, and now, also for the first time – the prosecutor sees how poorly this witness will present in court or hears about their reluctance to appear, or their unexpected unavailability. Sometimes a police department front-desk accepts subpoenas for trial (from the prosecutor) on behalf of officers who have pre-approved vacation on the day of trial.
On the other hand – If we wanted a trial all along – then we will have already spent hours discussing your case with you. You should expect to be nervous the morning of trial, but the time we spent preparing you should relieve a lot of that.
The following is a list of things we will have already done with you.
-We will have already gone over all the state’s evidence/exhibits. I will have explained to you how I expect the State of Nevada to proceed i.e. What questions they will ask their witnesses.
-We will have explained each element of each charge to you and which piece(s) of evidence correspond to those.
-We gave you the outcome of all of our pre-trial motions and how they may narrowed the scope of what we can expect i.e. Some pieces or evidence or argument are ADMISSIBLE and some are now INADMISSIBLE.
-We discussed whether or not you would testify, and if you will, we typed up all the questions we will ask you and I did a mock cross-examination (or two) based upon what I EXPECT the prosecutor to ask you.
-We constructed any DEMONSTRATIVE AIDS we intend to use, i.e. charts and diagrams, maps etc. and informed the prosecution and the judge of those – we obtained approval too. These can usually be made at an Office Depot store.
-We sent out any subpoenas for witnesses we want to appear and testify, and prepared those witnesses as well as we prepared you.
-We made our witness list and gave it to the prosecution and the Clerk.
-We decided on the order we will call any witnesses, keeping the principle of primacy and recency in mind i.e. Jurors are more likely to remember what they hear first and Last.
I will have long-since reminded you there are certain aspects of this process that are 100% out of our control. There is luck involved, mainly because at this point you are trusting six or twelve STRANGERS to fairly decide your case. They will start the case from scratch – with nothing, and NEVER see any police reports. Their decision will be based upon their weighing of the testimony, exhibits and any guidance provided by Nevada’s Standard Jury Instructions and special jury instructions – like Self-Defense.
One of the biggest challenges for us in selecting a theme, developing a plan and designing questions for prospective jurors –and in conducting the trial… is ALWAYS REMEMBERING that the jury panel is most-frequently not composed of lawyers, judges or police. It is all other people from various walks of life. We have to convince them to see things “our way”. This is much-more of an art-form than a science.
Question – How long will my trial last?
Answer – Most cases take less than two (2) days to complete depending on complexity, number of witnesses etc.
Question – What time commitment do I need to make – with my job, etc.?
Answer – Most-likely between 1.5 and 2.5 days. It is extremely likely that you will need to arrive at 8AM Monday morning. We will usually pick the jury that Monday, and then the judge may, or may not have us proceed IMMEDIATELY to trial afterwards. With COVID 19, the entire process is in flux, and timeframes are greatly extended. We will usually not begin picking a jury until around 1045 AM Monday…after the judge has taken the bench and taken care of some other routine matters. Some of the other cases set for trial may be entering a plea and the judge processes those pleas. Everyone in court wanting a trial will probably need to relocate to a specially-designed COVID-19 courtroom for trial. Jury selection will usually last between 2-4 hours, again depending on the seriousness of the case, the size of the panel, how many strikes are made, how many are contested etc.
In summary, you usually need to be available until 2pm on Monday and up to two (2) additional unknown days of the week after that. In determining how long this whole process may take for you, and to show you how LARGE OF AN UNDERTAKING THIS IS – it will help to explain to you now – about the structure of a trial (see below)
The “skeleton” of an entire trial is SUMMARIZED as follows below: and keep in mind that there will be breaks every 2.5 hours or so for people to use the bathroom, eat meals. There may also be additional time required if an unexpected and difficult/complex evidentiary issue arises and the judge needs a recess to research her or his ruling (in chambers).
I – Preliminary Matters – The Judge calls the case, makes sure it is indeed going to trial. Then we jointly decide which day the trial takes place, and whether there are outstanding motions that need to be argued NOW…i.e. a Motion to Continue, Motion in Limine, did one side provide late discovery?, Motion to Strike a potential witness etc…Most judges make these rulings earlier, and that is the most-professional practice.
II – Jury Selection – The Judge directs the Marshal to go get a group of people from a staging area, we ask questions, select/strike potential jurors, the judge reads off the names of those selected, every other juror walks out after being thanked – then we may or may not swear in the selected jurors in. Some judges wait until the last-minute on the actual DAY of the trial to swear them in. This is significant because once the jurors are sworn in jeopardy attaches i.e. The defendant now cannot be TRIED again for this crime. (I provided much-more detailed information about this stage later on in this segment). The judge usually tells them the name of the case, reads the prosecution’s charging document to the jury – then REMINDS them that the charging document is NOT EVIDENCE. , the judge will have read the preliminary jury instructions, tells the jurors no cell phones / social media etc. The judge may or may not allow the jurors to take notes during this time and give guidance on the usage of those notes. If the trial is set for a different day, the judge sends them home and instructs them NOT TO RESEARCH THE CASE OR THE DEFENDANT ETC. and to come back on the morning of the trial, usually 8AM. That may be as many as 4 days later.
III – The prosecution’s case in-chief – opening statements, the prosecutor calls witnesses, we cross-examine the state’s witnesses, the state shows any exhibits, we make any objections – then, when they are done – the prosecution “rests”. They have to go first, since it is their burden to prove the charge. At this point the judge usually sends out the jury for a break, it may be lunch time.
IV – The Defense Motion for Judgment of Acquittal – outside the presence of the jury – this is us asking the judge to dismiss the case since – the prosecution has failed to present a prima facie case. The defense is arguing that the evidence presented is so lacking – that it is not even sufficient to allow the case to continue and be submitted to the jury for a verdict. In other words, NO REASONABLE JURY could even POSSIBLY convict you. This is a VERY LOW standard for the prosecution to meet and the motion is almost always DENIED. This motion has to be considered in the light most-favorable to the non-moving party. The prosecution is the non-moving party.
V – The Defense case – this is 100% OPTIONAL – since you are presumed innocent and do not have to present ANYTHING or testify, but you may choose to do so. If you testify the judge will question you extensively – again outside the presence of the jury – about whether or not you understand that you have the right NOT to testify and that the jury cannot consider that AGAINST you, that is the law. Also, the judge asks you if you had enough time to consider your decision with us, your lawyers. Then you tell the judge your decision and either testify or not.
VI – The Defense (if they presented a case) then will make ANOTHER motion for Judgment of Acquittal, asking the judge again to dismiss the case – based upon the same standard of proof, but with the judge making a decision with additional information, i.e. in combination with your defense case information – which again, will STILL almost always be denied. No judge wants to “take a case away” from a jury, so to speak.
VII – Charging conference – (outside the presence of the jury) both sides confer on the content and structure of the jury instructions, and whether they accept/object and/or propose revisions etc. The importance of this stage is VASTLY underrated. Either side can make a MASSIVE mistake here, and I suspect fatigue ends up being an issue. Many appeals end up being granted due to mistakes in this stage. Either side can WAIVE defects in the instructions if they are not careful. A flawed set of jury instructions – with one seemingly innocent typographical error – can flip a burden, specify an incorrect burden of proof etc., list the wrong defendant’s name – and simply DESTROY one party’s ability to get a fair trial. I say “one party” because the state can mess this up too. When the state messes this up – they usually do not get another crack at the defendant, unless it was the judge’s mistake.
PRESERVING THE RECORD ON ANY OBJECTIONS
When one party notices what they believe to be a mistake of law made during the trial – something objectionable – the
objection needs to be made timely, needs to be stated specifically – and then it needs to be preserved in the record, which is the recorded words of the trial. It also needs to be renewed – mentioned again before the jury deliberates – otherwise it may end up being WAIVED – forever. Objections to errors in the jury instructions and on evidentiary rulings that may otherwise result in a successful appeal / new trial (if properly preserved) can end up being waived by either party, unless the error is extremely large and fundamental.***
VIII – Closing Arguments – The jury is brought back in – and the State gets two of them – and thus enjoys a HUGE advantage. The defense gets only one.
IX – The finalized jury Instructions are read by the judge, who then submits the case to the jury (We would renew any objections here to preserve them).
X – The jury retires to their ante room, elects a foreperson, deliberates, they may ask the marshal to come back into the courtroom with questions, then POSSIBLY reach a Jury Verdict, if so the judge inspects the verdict for legal sufficiency, the clerk then publishes (reads) it aloud. If they cannot reach a verdict there will be eventually be a MISTRIAL declared. The jury will have any EXHIBITS back there with them and a copy of the jury instructions too. There will be a television for any videos with speakers for audio portions of exhibits. The jurors are free to look at/watch/listen to the evidence (again) back in their ante room before they decide.
Question – Can you explain more about jury selection?
Answer- YES – see below:
JURY SELECTION:
We will be selecting either six or twelve jurors on your case depending on the seriousness of the charge.
Each side gets three PEREMPTORY strikes for any race / gender or religious-neutral reason. Each side gets UNLIMITED strikes for cause.
Question – Why are people stricken for cause?
Answer – Because they cannot be FAIR AND IMPARTIAL – that is the key phrase.
We will have ALREADY developed, written out and submitted to the court the specific questions we want asked – and we will have ALREADY submitted those and the judge will have ALREADY approved or rejected those questions.
Question – What would you TYPICALLY ask the jurors?
Answer – That depends on what we want to accomplish – what is our theme? I had mentioned theme in earlier segments. The MOST COMMON THEME I have encountered / used is – self-defense on the part of a man who was arrested for Battery DV against his former wife/GF.
Question – So what questions do you use to develop that theme?
Answer – Here are some SAMPLE questions –
“Do you believe that a woman is just as capable of committing an act of violence against a man – as a man is against a woman?”
“Are people going through a bad break-up more likely to act irrationally / use violence?”
“If a woman is physically attractive – are you going to automatically ASSUME she was the VICTIM and not the AGGRESSOR?”
“Do you believe a given witness is more or less likely to lie…. when the opposing parties are going through a divorce – with money and child custody at stake?”
Question: Is there any possibility that we CANNOT pick a fair and impartial jury once selection begins?
Answer: Yes – if there are so many strikes FOR CAUSE that there are not enough jurors left on the panel to reach a necessary minimum – i.e. six or twelve plus one alternate. Sometimes this happens after one lawyer or one juror “poisons the panel” with something they blurt out. Think of one panel member saying in open court, after being asked if he could be fair and impartial if selected: “No, I could not be fair and impartial – at all… because I know he (pointing at you) did it – I read the newspaper article and saw pictures of the black eye he gave his wife and I think it’s disgusting that he refuses to accept responsibility” After a statement like that – I am not sure ANY remaining potential juror could be fair and impartial. These incidents are not as rare as you might expect, especially in high-profile cases.
Question: Which case/defendant has their jury picked first?
Answer: How quickly your case proceeds will depend on how many other cases are on the court’s calendar. It is unlikely that yours is the only one. In a busy division it is not uncommon to have four to ten set to be tried in one week, with all the parties knowing that usually two or less will actually be tried. The other cases would then be pushed back later if necessary. The oldest cases usually get priority.
Q: So how do we potentially WIN MY CASE?
A: By putting our plan into action – which is something we begin to envision from day one, when we first met with you, and again when we examined all your discovery in our office, and finally when we filed any pre-trial motion(s).
Question: If I am pleading self-defense – can’t we ask the judge to throw out the case BEFORE TRIAL ?
Answer: No – that defense can be raised only at trial – it is an AFFIRMATIVE defense which will ALMOST ALWAYS require you to testify.
Question: What does affirmative defense mean?
Answer: This is a defense in which the defendant introduces evidence, which, if found to be credible, will negate criminal liability, even if it is proven that the defendant committed the alleged acts. The bad part is – we cannot ask the judge to dismiss the case in the preliminary stages based upon self-defense.
Question: Why Do I have to testify for self-defense?
Answer: Because there are ALMOST ALWAYS no witnesses besides you and the ALLEGED victim. Using common sense, if there were other witnesses – who told the police you were defending yourself, you probably would never have been arrested right? Also – procedurally – The Judge will require that there is at least some credible evidence in the record such that the jury could find that the defense is valid before even agreeing to read the (special) self-defense jury instruction along with the other (standard) instructions. Your testimony is presumably the minimum necessary to constitute that credible evidence.
Question: How does the jury instruction read, what does it say?
Answer: It will read very similarly or identically to this one below – if the judge agrees to give it.
“An issue in this case is whether the defendant acted in self-defense. It is a defense to the charge of Battery if the injury to the alleged victim resulted from the justifiable use of non-deadly force.”
Question: How can I be sure the jury will believe me?
Answer: You cannot EVER be sure they believe ANYTHING you say, and it is solely the jury’s job to weigh the credibility of all the witnesses. As your lawyers we will be watching their reactions to your testimony. We will also lend you the benefit of our collective experiences. We can PREPARE you to testify – extensively. Then we PREPARE you to be CROSS-EXAMINED by the prosecutor. We will of course critique you during this process. It will be stressful for you.
Question: How do the jury instructions describe “Proof beyond a reasonable doubt”?
Answer: As follows below:
“A reasonable doubt is one based on reason. It is not a mere possible doubt, but is such a doubt as would govern or control a person in more weighty affairs of life. If the minds of the jurors, after the entire comparison and consideration of all the evidence, are in such a condition that they can say they feel an abiding conviction of the truth of the charge, there is not a reasonable doubt. Doubt to be reasonable must be actual, not mere possibility or speculation.”
Question: So where does reasonable doubt come from?
Answer: Three places – lack of evidence, conflicts in the evidence, and the evidence itself. Nevada Jury Instructions cover these possibilities as listed below in the parts I CAPITALIZED:
“Every person charged with the commission of a crime shall be presumed innocent until the contrary is proved by competent evidence beyond a reasonable doubt. This is a presumption of law with which the Defendant is clothed, and it abides with the Defendant throughout the entire trial of the case until it is overcome by competent evidence sufficient in your minds to establish the Defendant’s guilt as to the crime charged. In determining the guilt or innocence of the Defendant, it is not necessary that he establish innocence, but it is sufficient in order to warrant an acquittal if a reasonable doubt exists in your minds as to guilt, and it makes no difference whether the reasonable doubt thus created exists or is established FROM THE EVIDENCE produced on the part of the State or that produced on the part of the Defendant, or from the LACK OF EVIDENCE, or its UNRELIABILITY OR WEIGHT.”
Question: What do jurors do during these breaks?
Answer: Hang out in their jury room, eat a pizza, talk about their personal lives etc. They can do almost anything EXCEPT talk about the case during breaks. The judge is SUPPOSED TO instruct them EVERY TIME before a break to NOT BEGIN deliberating yet. They are not supposed to be deliberating until each side has rested its case-in-chief.
Question – What if a juror disobeys the judge’s instructions in some manner during a break i.e. deliberate early?
Answer – If the judge finds out, a juror can be DISMISSED and an alternate juror takes their place. Jurors can also be dismissed if they are observed SLEEPING during the trial. This happens more often then you might expect.
Question: What is a jury foreperson, and why do they elect one?
Answer: A jury foreperson is like a supervisor to organize the jury’s deliberations, and ultimately take a vote, fill out and sign the verdict form. If you are already thinking that this person has additional, great power not contemplated in the earlier proceedings, I agree 100%. In fact, one of the most interesting and complex aspects of any jury trial, or jury selection, is trying to predict WHO will be the foreperson and HOW they will all interact together. The variety of personalities amongst the jurors may, or may not allow them to ever agree on anything. This is part of what I meant earlier – when I mentioned that in a trial you are trusting your fate to strangers. It may help you to consider that the jurors are all almost-certainly strangers to each other.
Question: Can you give examples of those three things about reasonable doubt causing NOT GUILTY verdicts at trial or favorable plea deals from actual cases and trials?
Answer: Yes –
PUTTING IT ALL INTO ACTION:
EXAMPLES OF HOW THE THINGS DESCRIBED IN THIS SECTION WERE USED AS PART OF A THEME AND A PLAN – TO EITHER WIN AT TRIAL OR GET A FAVORABLE OFFER IN ACTUAL CASES.
At numerous points in this entire 7-part series I have mentioned “The benefit of our experience.” These cases constitute the most valuable portion of our experience – dating all the way back to 2003. There are no names listed and no confidential information is disclosed.
EXAMPLE # 1 – conflicts in the evidence from an actual trial result in a NOT GUILTY verdict: FACTS: A police officer stops my client’s scooter VERY LATE at night with no headlight, and after the wind changes directions, says he smells alcohol, investigates a DUI and arrests the defendant afterwards.
THEME AND PLAN – convince the jury that it was something OTHER THAN ALCOHOL which explained my clients striking lack of balance when asked to do the Walk and Turn Test. He almost fell over and had to use his hand to stop from falling. His lack of balance (while walking) was appalling, in fact it was so bad – we were forced to argue that it could not have been alcohol that caused it.
ISSUES WITHIN THE CASE –
1- The State had no B.A.C from a blood or breath sample – as this case was tried in Florida, where people can refuse a breath test, after being told that the the jury is free to use that against the defendant. On the video the defendant’s speech pattern was normal, his eyes looked normal, and if he had drank a lot of alcohol, I was arguing that his speech and eyes would have indicated it.
2-The officer testified that the defendant was SWAYING as he stood there at the scene, during the initial stages of the traffic stop. When we played the video (and we played it twice for the jury) this alleged swaying was not visible.
3-The officer testified that he had asked a series of questions intended to RULE OUT the possibility that my client was under the influence of substances OTHER THAN alcohol. No such questions were on the video – the officer never asked about those medications – and my client’s defense was primarily that he had suffered an adverse reaction after taking prescription medication on an empty stomach.
4-There was a question as to whether my client’s scooter was operable or inoperable and the officer did not sufficiently remember if it was running / warm at the scene, and my client testified that he was running, then coasting with it – to get it off the streets for a friend. The State had to prove he was in control of an operable vehicle.
SUMMARY – The defendant testified surprisingly well – excellently. He explained to the jury that he refused the breath test because he did not trust its accuracy, not because he was impaired. I suspect these issues aggregately affected the jury’s opinion of the officer’s testimony versus the defendant’s. I remember arguing in closing that our defense and my client’s testimony were different from that of the State – in that they consistent. Whereas the State’s evidence/witnesses/testimony were not. The verdict was not guilty.
EXAMPLE # 2 – A reasonable doubt arising from a lack of evidence and conflicts in the evidence that resulted in a favorable plea agreement (case later dismissed):
FACTS: The defendant strikes a scooter rider while backing out of a parking spot – the alleged victim calls her Mother on her cell – tells her Mom she’s OK, then after the defendant and his Father get out of the truck – she tells them she’s OK, but her Mom calls the police anyway. The police arrive and allege that the defendant left the scene illegally. They locate him shortly afterwards and he matter-of-factly tells the police he just came back from a bar – where (after the collision) he had a few beers. Out of anger and frustration (I suspect) the police charge him with a felony: Leaving the Scene of an Accident with Serious Bodily Injury, and Driving With a Suspended (out-of-state) License. They were frustrated because what they really wanted was a DUI arrest.
THEME AND PLAN: Convince the prosecutor that the alleged victim was not really seriously injured and said as much at the scene. Convince the prosecutor my client was not impaired at the time of the accident and deserving of a good deal.
ISSUES WITHIN THE CASE:
- The alleged victim admitted in a deposition that she told my client she was OK at the scene –
- I went onto the alleged victim’s Facebook page right after we got hired and saw a lovely photographic montage that she had made, with date stamps, that showed she was out with her boyfriend on a sailboat right after this accident, she was partying at the local bars, walking around seemingly pain-free and just having a great time – with no visible or other evidence of injury whatsoever.
- As to the Driving While License Suspended charge – the prosecutor in this case provided the wrong copy of the defendant’s (out-of-state) Driver’s License history in discovery. We recognized this right away – but for obvious reasons we did not say a word. The license printout they had was not for the proper time-period. It did not show that his license was suspended on the date of the alleged offense. This normally would not be fatal if it was a Nevada Driver’s License, since they could just go back in about 5 minutes and print out another one – but the license printout was from another state – and I know from experience they had to request it specially – which would have taken too much time. Once the trial began there was no way the judge would make the jury sit and wait while the prosecutor’s staff called up the other state. It usually takes a minimum of ten days to get those. The Driving While License Suspended was also dismissed.
SUMMARY: We never had to try this case. I convinced the prosecutor that they were likely to lose and they agreed to allow my client to complete an intervention program that resulted in the ultimate dismissal of the case. He just had to complete a Driver Improvement Course online.
EXAMPLE # 3 A lack of evidence, conflicts in the evidence and the evidence itself results in a favorable plea deal.
FACTS: Homestead Exemption fraud became a high-profile newspaper issue right before an election. The prosecutor’s and Appraiser’s Office investigators begin systematically looking at tax records and saw my client’s name seeking and holding an exemption at two addresses – and immediately assumed she must have committed fraud. They arrest her.
THEME AND PLAN: Convince the State to drop the charge, make a favorable plea offer or win at trial.
ISSUES WITHIN THE CASE
1 – After many hours examining the law, and applicable caselaw – I found out that to win the case the prosecutors had to prove (and disprove) certain things: First, they had to prove that she actually lived in one certain house, and DID NOT live in the other – since she already had a homestead exemption on one of them; and second, that she did not qualify for any of the statutory exceptions/exemptions that would have allowed her to POTENTIALLY qualify for more than one homestead exemption.
2 – The prosecution didn’t REALLY know where she lived. They had sent one of their in-house investigators over to one home in question periodically and members of the Property Appraiser’s Office also sent investigators who conducted surveillance at both homes in question and made a series of log entries detailing the results. None of these people ever saw my client coming in or going out of the second home, and they never bothered to conduct surveillance after 5 pm, or on a weekend – and they never checked the trash and never even bothered to knock on the door. They said in a deposition later that they “felt like they needed to keep their presence secret”. They never checked to see whose name(s) were listed on the utility accounts listed on that second house either. All they did was write down license plate numbers and check them versus DMV records.
3 – They apparently had not examined the law completely enough – as a person who cared for a “dependent relative” was eligible for an additional Homestead Exemption if they took care of the relative inside one property. This exception was not mentioned as part of any criminal cases, since prosecutions of this type were so rare. I found the caselaw in conjunction with civil proceedings by homeowners against appraiser’s offices. As it turns out – my client was the full-time caretaker for a disabled Father, and I knew we could PROVE that if necessary in the upcoming trial. In fact, I expected the judge to throw out the case at trial before it was ever submitted to the jury, when I would make my motion for a judgment of acquittal at the close of the State’s evidence, since I knew the prosecutor was not going to ask the State’s witnesses if they had determined whether or not my client was eligible for this additional exemption. The same prosecution witnesses knew that my client’s Father was disabled and had mentioned it in their reports.
SUMMARY As it turned out the prosecution later (I believe) realized the bad position they were in and offered this client an intervention program which later resulted in the case being dismissed, after the election was over. A sure thing like intervention is always better than a jury trial. Initially, they had taken a strict stance in plea negotiations, since Homestead Exemption Fraud was a high-profile issue at the time and there was an election coming up, and the case(s) had been on the front-page of a small-town newspaper.
EXAMPLE 4: An example of an affirmative defense, and how reasonable doubt can arise from conflicts in the evidence –
FACTS: My client was charged with DUI and told the police she only drove to get away from her boyfriend who was beating her up. The police had been called by her 3x that day, and each time, the boyfriend would flee the scene – then return. Finally, the third time he came back, my client jumped in the truck and drove away, and the police did find her behind the wheel, with him in the bed of the truck. They charged her with DUI. The state refused to reduce her charge to Reckless Driving because she had multiple prior DUIs.
THEME AND PLAN: Either prove that the client was not impaired – OR – Prove the AFFIRMATIVE defense of necessity at trial. To prove necessity – we had to establish SIX ELEMENTS:
- The defendant reasonably believed that a danger or emergency existed, which the defendant did not cause;
- The danger or emergency threatened significant harm to the defendant or another person;
- The threatened harm must have been real, impending, and imminent;
- The defendant had no reasonable means to avoid the danger or emergency except by committing the alleged criminal act;
- The criminal act was actually committed to avoid the danger or emergency; and
- The harm that the defendant sought to avoid outweighed the harm caused by commission of the criminal act.
ISSUES WITHIN THE CASE:
1 – My client did not present well, and her initial examples of testimony during our trial preparation did not go well, she was extremely nervous.
2 – We had problems locating witnesses who saw her boyfriend beat her up.
3 – We were not optimistic that the facts of this case fit the definition of the defense above, especially as to number 4.
4 – This was a felony prosecution based upon priors and my client almost could not stomach the risk.
5 – During the trial my client testified, explaining to the jury that she did poorly on Field Sobriety Exercises because she was disabled, not under the influence of alcohol. The State objected successfully – since her claims of disability were based on FACTS NOT IN EVIDENCE. She had no PROOF of disability. She was warned by the judge not to mention her disability again. However, unbeknownst to the judge she had brought a HANDICAPPED placard from her car with her in court. The client then DISOBEYED the judge’s order during my closing argument and picked up the HANDICAPPED placard and waived it in the air at the jury. The judge was EXTREMELY angry and almost held her in contempt.
SUMMARY: In the end, the jury must have believed her, she was found NOT GUILTY of DUI by the jury.
Example # 5 – Lack of evidence results in a NOT GUILTY verdict as to Possession of Cocaine/ Drug Paraphernalia.
FACTS: My client was asleep in back of someone else’s (unlocked) car, and when the owners saw him and called the police, they open the car door, and “something” falls to the ground off my client’s chest. The police cannot say for sure what it was – and did not notice it from outside the car – but when they look on the ground it is a pipe used for smoking crack cocaine, that contained and tested positive for cocaine residue. My client was charged with Burglary (the car), Possession of Cocaine (the residue) and Possession of Drug Paraphernalia (the pipe). The police officer suspected and concluded that it was the pipe that fell off my client’s chest on the ground.
ISSUES IN THE CASE: Police never checked that pipe for fingerprints or DNA and the officer may have stepped on it too – the officer testified that fingerprinting and checking for DNA on drug pipes was not common, especially in these “less-serious” cases, as opposed to murders – and that it was cost-prohibitive, or that he was unlikely to find prints since the pipe fell into some dirt and leaves on the ground. Those assertions were fairly easy to combat – by arguing that people are entitled to have the police be thorough, that there is an implied expectation as to that in all cases – no matter how serious – and I asked him repeatedly on the stand: “You wanted to be fair and thorough, correct?” That is a question that he must answer “Yes” to – every single time. Then in closing argument I told the jury this:
“If the police fail to be sufficiently thorough when investigating a crime – then proof beyond and to the exclusion of any reasonable doubt simply cannot exist. Use your common sense, the police have to do their part in this process for the system to work properly, and in this case, they did not”
SUMMARY: The client was found guilty only of the lesser-included offense of Trespassing in the car – and NOT GUILTY on the two felony counts.
