In the defense of a criminal case, the second-simplest explanation that accounts for all the government's admissible evidence is generally the best.This struck a chord because it exactly described the reason I won a trial I prosecuted last week.
The case was for assaulting a law enforcement officer. Not assault and battery, just assault. After nightfall, Deputy Smith was dispatched to a residence to respond to a domestic disturbance. He gets to the place and there are some family members there, but Mr. Greene, the one who started the fight is gone. As the family members are telling the deputy about a fight which rose out of a dispute over the hogs, one family member tells the deputy, "There he is" and points down the 100 foot gravel driveway to a truck that has pulled in and stopped down there.
Deputy Smith starts walking down the driveway and Mr. Greene starts quickly driving up. Deputy Smith has to jump off the driveway, over a drainage ditch, and onto a hill. However, this is not the grounds for the assault. Deputy Smith wrote that off to not being seen. Nevertheless, when he yells at the driver to stop, the truck stops. The deputy walks up to the truck, shines his light into the cab, and is told, "Get that F#*$ing flashlight out of my truck."
The deputy then tells the man to get out of his truck. The driver spins his wheels and moves the truck forward several feet; then he stops it and gets out. He emerges shirtless and upset, screaming obscenities at the deputy and yelling at him to get off the property. He also tells Deputy Smith that he knows Sheriff Quercus and he is going to get the deputy fired. The deputy is trying to talk back (loudly), but he is getting outyelled. The whole time Mr. Greene is waving his hands
Finally, Deputy Smith gives up and tells Mr. Greene he's under arrest for disorderly conduct and orders him to turn around and place his hands behind his back. Of course, Mr. Green isn't having any of that. He just keeps arguing with the deputy.
So the deputy steps forward and takes hold of Mr. Greene's left wrist. Mr. Greene then falls back, clenches his right fist, and cocks his arm back, getting ready to punch the deputy. Deputy Smith realizes what's going on, pushes Mr. Greene away, pulls the pepper spray off his belt, and sprays Mr. Greene. Mr. Greene then attempts to climb back into his truck and the deputy pulls him out, takes him to the back of the truck, and handcuffs him.
That's pretty much the extent of the Commonwealth's evidence. Sure, it's an assault, but I must admit I wasn't really thrilled to take it to a jury. I tried to negotiate with the defense attorney, but quickly came away with the feeling that the defendant wasn't going to let his attorney negotiate anything. It was a gamble for the defendant because a conviction of assaulting a law-enforcement officer carries a mandatory six-month sentence and I was willing to reduce this to simple assault if the defendant would plead guilty. Still, the defendant demanded his jury and you can't exactly walk away from the case when someone attempted to punch an officer.
This looks like it is going to be a very difficult case. I'm expecting the defendant to come in and admit pretty much everything except drawing back to punch the officer, saying something to the effect of "When the officer went handcuff me, I pulled my hand away. I didn't mean to punch anybody." or "I was just waving my hands around like I was before." It's going to be Deputy Smiths word against the word of Mr. Greene because all the other witnesses were on the other side of the truck, including the deputy's brother who was doing a ride along that night because he is considering becoming a police officer.
The trial date comes. As part of my case in chief, I put Deputy Smith on the stand and he tells the story which I've outlined above. By a happy chance, I also have Deputy Smith stand up and show the jury where the pepper spray is always kept on his belt. Then the defendant starts putting on his evidence. After calling three witnesses, none of which I'm certain helped or hurt the defendant, the defendant takes the stand himself and tells his story.
And his story is amazing. In his story, he got in an argument with his family members. After the argument was finished, but not because police had been called, he left. The reason he left was to go help another family member whose car had broken down. When he got back he pulled onto the gravel driveway and the deputy came running down the driveway shining his flashlight directly into the face of the defendant as he was driving his truck up the driveway. Then, after Mr. Greene stopped his truck, the deputy came up and, before Mr. Greene could do or say anything, told him he was under arrest. When Mr. Greene got out of the truck the deputy took him to the back of the truck and sat him down on the tailgate. Then the deputy left Mr. Greene sitting there in the custody of the deputy's civilian brother while Deputy Smith went back to his car and got his pepper spray. Meanwhile, Mr. Greene moved from the tailgate back up next to the driver side door. When he returned, the deputy grabbed one of Mr. Greene's arms while his brother grabbed the other and they forced his arms behind his back. Next they handcuffed him. At this point Deputy Smith took the pepper spray he had gotten from his car and sprayed Mr. Greene in the face. Then, after Mr. Greene told Deputy Smith to stop because he had eye problems, the deputy sprayed him twice more.
Suddenly, the case that I had considered very close became golden. The jury was out for 40 minutes and found Mr. Greene guilty. Now, I can't say the fact it wasn't the second simplest explanation was the only reason Mr. Greene was convicted. However, it was a major contributing factor. If he had humbly told his story admitting he had done all of it except attempting to punch the deputy and told the jury he was sorry that it had all happened a conviction in a swear off would have been difficult.
In fact, even if the jury hadn't believed the second simplest story there was a good chance they would have nullified. However, I'm fairly certain that the whopper he tried to sell them sealed his fate.
This is pretty much what happened when I was on a jury. If the defense story had been exactly the same as the prosecution except for a few issues of interpretation or intent, we would probably have acquitted. Instead the defense told a story that was complicated enough to contradict itself, among other problems.
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