02 December 2005

Moments in the Life of a Criminal Defense Attorney

1) Prosecutorial Thinking:

I'm watching jury selection and the prosecutor has just struck the only Black man on the jury. Defense makes a Batson motion. The prosecutor's reason for the strike?
Well, Your Honor, I don't know Mr. McGillicutty personally, but the name's fairly unique and I've prosecuted a number of McGillicuttys out of the Vistaville area and that's where he's from. He may have formed a prior opinion of me.
[note: I don't really think he should be disallowed this reason for a peremptory strike; I just thought it was an interesting insight into that dark labyrinth which is a prosecutor's mind. :-) ]

2) All You Can Do is Bite Your Tongue

In the same trial as above, the Defense has subpoenaed a number of professional witnesses (doctors and nurse/record keepers). It's a sex offense case and some of the things the prosecution is trying to use to prove the offense are pre-existing serious medical conditions which had long before the alleged event sent the complaining witness to the hospital. During the prosecution's case in chief the prosecution's (lay) witness admits to the point they were there to prove. When the jury breaks for lunch the Defense tries to do the right thing and asks the judge to release them. The following conversation takes place:
Defense: Your Honor, at this time I'd ask you to release Drs. Smith and Jones and Nurse Green.

Judge: Why?

Defense: Because the prosecutor's witness admitted the point I had them here to prove.

Judge: Did you know the prosecutor's witness was going to admit the fact?

Defense: No, Sir.

Judge: Well, did you ask the prosecutor if his witness was going to admit the fact?

Defense: No, Sir.

Judge: Mr. Moel, just subpoenaed and kept three professionals stuck in a courthouse for more than half a day and you didn't even need them. You've basically just wasted their entire day. You should have asked the prosecutor if his witness was going to admit the point. The next time you'd better make sure that you're going to need them.
This is one of those moments when, as a defense attorney, you just have to bite your tongue. Yes, you know that you shouldn't reveal your defense strategy to the prosecutor. Yes, you know that if the prosecutor's witness had testified differently the judge would have never given you a continuance to get the witnesses you needed ("If you needed them you should have subpoenaed them, Mr. Moel"). Yes, you know that even if the prosecutor stipulated the fact it's not the same as having witnesses prove it (especially after a prosecution witness has denied it). Still, you're in the middle of a trial and pointing out these fairly obvious truths to the judge isn't going to make the judge any happier with you (and by extension your client). So, you stand there and take it and the next trial do the exact same thing you did in this one in order to defend your client as best you can.

3) Police Computing

So, I'm sitting in the courtroom waiting for a case to be called and chatting with the police officer next to me. I comment on the spiffy new computers I've seen them using in their cars (we can't afford $400 video cameras to record what actually happens in stops but our tax dollars can be spent on impact resistant computers for every car - $$$). He admits they're pretty cool and it's great how they let him check records without even having to call dispatch. However, they're also a pain. Why? Because they keep track of the car's speed and location. All of the sudden the higher ups are all over the guys on the street because they are speeding too often. And, Lord help them if they sit in one place too long without having a "proper" reason for doing so. All of which sounded fine to me until he explained several techniques used (ie. pacing or driving up behind a car to observe if it's the reported DUI and then speeding past it to the car a mile ahead to check it out) which get counted as non-necessary speeding. I guess everyone has to deal with some sort of silliness at work (and, yes, I am sure that officers in other jurisdictions would be a little upset at losing the not-needing-to-obey-the-speed-limit benefit of being an officer, but all our officers are fine upstanding, outstanding examples of law enforcement perfection and would never even dream of taking advantage in their position in such a manner).


Unknown said...

Great comment. I thought you might like my June blog post on the prosecutor mentality, one of my criminal defense related posts.

NY Criminal Defense Lawyer Warren Redlich

Anonymous said...

However, they're also a pain. Why? Because they keep track of the car's speed and location.

Amusing. I'm fairly certain they'd be very, very interested in everyone else's speed and location, though.

Anonymous said...

I wonder if someone actually checked to see if the prosecutor actually did prosecute other folks named McGillicutty.
Would be kind of "funny" if that was not the case