Category: Criminal Justice

A week ago, Thursday, the closing arguments of the trial began. The prosecution went first with a 50 minute PowerPoint presentation that covered the charges and how the evidence fit the charges. This was followed by the defense attorney recasting the testimony of the witnesses in such a way to benefit his client (think James Carville defending Bill Clinton). The defense attorney did a masterful job of misdirection and obfuscation. The prosecution then got a small rebuttal.

Then, just over three weeks after jury selection began, the trial went to the jury. Due to the trial running so long and some jurors having conflicts, the jury agreed to meet the following Monday to begin deliberations. The three day weekend gave me and presumably the others some time to reflect on our responsibility as a jury and the evidence. (In my opinion, had the jury started deliberations immediately after the defense’s closing argument’s it would have taken much more time for them to arrive at a verdict due to the level of doubt introduced.)

Monday morning finally arrived. The jury gathered and entered the deliberation room. We talked for a while and waited for the stenographer to arrive. We wanted to rehear the testimony of the two main witnesses. One man in particular was the crown jewel of the prosecution’s case. He was the man offered the bribe. He was the type guy that took an oath to protect and defend the Constitution of the United States and in his mind, his DD214 did not absolve him of the responsibility. He identified the shooter at the scene of the crime while waiting for medical aid. Both attorneys stated that this witness was reliable and correct in his testimony, at least up to the point of the actual shooting and then–per the defense–he was mistaken.

This is where I can get into the charges; however, I’m doing this from memory so I won’t be citing charter and verse for each accusation. All together there were five counts.

1. The big charge was attempted murder of Bender Bob. Alternately, the jury could look at a lesser charge of attempted manslaughter.
2. assault with a semi-automatic firearm causing great bodily injury to Bender Bob–shot in neck.
3. assault with a semi-automatic firearm causing great bodily injury to the security guard–shot in hand.
4. a felon in possession of a gun.
5. witness tampering.

Several of the charges had additional factors associated with them. For example on the assault charges, if Carlos was guilty then we had to consider: Did the assault cause severe injury to the victim? And did Carlos use a semi-automatic weapon? The felon in possession of a weapon charge required that Carlos possess the weapon or control it when fired. The law does not say he had to own it, basically if he was touching it when it fired then he was guilty of violating this statue.

Bender Bob started the altercation. On this point both prosecution and defense council agreed. Did Bob draw the gun too? Bob testified that he hit Carlos because he saw Carlos drawing the weapon; however, Bob was so drunk his version might be the product of his imagination. Could Carlos’ defense testimony be true? Much of any reasonable doubt the jury might have stemmed from the answer to this issue. This was the main purpose of the read back of the witness testimony.

The question that much of the case hinged on was where did the gun come from? A shell casing was recovered at the scene but no weapon was recovered during the course of the investigation. Three choices were postulated in the trial about the gun:

1. The defendant, Carlos–the prosecution claimed that he brought and used the gun but Carlos claimed he didn’t and furthermore, he never had the gun or control of it
2. Bender Bob–the guy who got shot in the neck, Carlos’ defense testimony was that the gun was Bob’s but nobody asked Bob during the trial about ownership of the gun.
3. The girlfriend, who’s purse kept being brought-up by the defense with no follow-thru (she was never asked to testify).

The purse was a red herring that explained nothing about the gun so nobody gave it much thought; especially after the defendant, Carlos, took the stand and blamed Bob for being the owner. Thus did defendant Carlos bring gun and shoot Bob as the prosecution alleged or did the victim, Bob, bring the gun and shoot himself during struggle? Did the defendant have possession of the gun at any point? If so he was guilty of count four.

Oh, while waiting for the stenographer, the jury voted guilty on count five related to intimidation of a witness. There was no debate on this point since both attorneys has stipulated that Carlos wrote the letter and arranged the phone call making the offer. Carlos agreeing to all this under oath sealed his fate on that count.

Should some enterprising criminal ever read this post, please understand that promising good things should a witness change his testimony also has the implied threat that bad things will happen if you don’t, whether the threat is explicit or not. The fact that the witness called the lead detective as soon as the call terminated and ditched his cell phone number for a new one is further proof he took it as a threat.

The testimony read back took two and a half hours but the intrepid stenographer made it thru the evidence that we needed to hear to get back on track. After a few minutes of discussion, we agreed to break for lunch.

Deliberations resumed at 1:30 PM.

It was clear that the jury would not agree to the attempted murder charge. This statute required premeditation and there was no consensus that the shooting in this case was premeditated. I could argue that bringing a gun to a night club is a premeditated act but that Bender Bob was shot seemed the opposite of premeditation.

The attempted manslaughter charge was more achievable but a few jurors wanted to examine whether the shooting as described by Carlos was self-defense. Two different reasons can get you to attempted manslaughter, one of which is imperfect self-defense. For many jurors, the question of guilt hinged on whether bringing out a gun and firing it at a fistfight was excessive force for this situation.

The presence of security and other options available to Carlos were discussed. Carlos’ assertion that Bob shot himself was just too incredible to believe. Had Carlos claimed that Bob had the gun but Carlos grabbed it and tried to scare Bob and it accidently discharged, Carlos might have been acquitted. Carlos’ version was clearly some jailhouse lawyering that was concocted to get him off all the charges.

It was clear that Carlos lied about all the following:

• Being checked by security as he entered the building–security guards testified that VIP’s were exempted from thorough scanning and often enter the building with no check at all
• Carlos said when he was hit so hard that a tooth was chipped but that he never took a step backwards but stood his ground, this  was contrary to the other witnesses and common sense
• Bob glaring down at him from the balcony after the shooting (discussed below)
• Talking to the head of security after the shooting–head of security never spoke with Carlos
• Never trying to tamper with witness testimony–Carlos maintained there was no threat explicit or implied in his offer

Before I go on, let’s talk about Bob and the balcony. In order for this to be true the following things had to have happened in less than ten seconds.

• Bob gets shot in the neck with a .45
• Bob and the security guard fall backwards and land on a table, breaking it into several pieces. (They fell in the opposite direction from the exit.)
• Bob would then have to scramble to his feet and scoop up the gun at the scene of the shooting
• Bob would then have to run to the balcony and already be there so that he could be seen glaring at Carlos as he got to the landing halfway down the stairs
• Police found no blood between the scene of the shooting and the front of the dance floor where balcony is located
• Bob was drunk as a skunk and highly impaired, and barely mobile

Other threads that cast doubt on Carlos’ version of the story are that he never called the girl he brought to the club or arranged to get her home; instead, he just ran away. He never called the police or offered to make a statement against Bob. The only time Bob was accused of having the gun was by Carlos in open court, you’d think even if the cops didn’t investigate this that Carlos’ lawyer would use the possibility to create reasonable doubt when Bob was on the witness stand. Fleeing to Las Vegas and the Vegas jail call to his wife about “going away for a long time for attempted murder” doesn’t help either. As a whole, Carlos’ behavior is hardly that of an innocent person. As a convicted felony, only Carlos had any reason to lie about the events of the shooting.

After reading the law given to the jury as part of our written instructions, we ruled out self-defense and voted guilty of attempted manslaughter.

Having concluded that Carlos is the only person that witnesses saw holding the gun and firing it at Bob and the fact that Carlos was full of B.S. with his version of the story that Bob shot himself, finding him guilty of assault and possessing a weapon was a simple matter. By a few minutes after 3 PM, we had five verdicts.

As slow as court proceedings had been going, we figured it would take until the following day to gather all the folks to have the jury verdicts read in court. Wrong! As it turned out, the prosecuting attorney was in courthouse on another case, the defendant was downstairs in the cooler, and his lawyer was just down the street. The defense attorney was the last of the three to arrive. I could tell by the look on his face that he already knew the verdicts. One of the other jurors commented that he looks glum. I responded that is because he already knew the verdict. I said we decided too fast to find his client innocent, he knows it. About the time we were let into the courtroom, Carlos’ parents had arrived—at least I saw him mom and sister before going into the courtroom.

When the verdict on the first charge was read, “on the count of attempted murder, not guilty”, you could sense some hope coming from Carlos but then his world shattered. “On the lesser count of attempted manslaughter, guilty” and every other guilty verdict that was read, he let out an audible gasp. The jury also found Carlos guilty of all the modifiers associated with the charges. I didn’t look but it seemed that he was being restrained from making further outbursts. His family began sobbing after the first guilty verdict was pronounced.

I felt sorry for the family that had been in the courtroom every day of the trial but I was convinced that their son was guilty. The prosecution made a fairly solid case. Carlos’ story did not fit the facts of the case. His testimony hurt his cause; especially when he attempted to explain that Bob shot himself. Bob was about 6’ 2’ and close to 280 lbs. while Carlos was about 5’ 6” and 165 lbs.

The defense attorney then tried the final Hail Mary play in the book and polled each juror for their vote on each of the five verdicts. After 60 votes, it was over. The judge thanked us for our service and dismissed us.

Subsequent to the trial I have wondered if I did the right thing and after many days of contemplation, I think given the evidence, that Carlos is guilty. As to his sentence, that is up to the judge and will be decided another day.

Once the prosecution rested, the defense was able to present their case, I’m surprised that they did. I thought the attorney would close, simply arguing that the prosecution didn’t prove their case beyond a reasonable doubt and thus we must acquit. However his client–Carlos–had other plans. In the end two people were called to the stand.

The first defense witness was the policeman that was first on the scene to interact with Bob, the man shot in the neck. He had described the gunshot to the neck as “a graze”. That was the entirety of his testimony.

We then took a break and returned to find the defendant on the witness stand. The only person more shocked than me was probably the defense attorney. If I was him, the last guy I would want under oath was my client but there he was in the flesh. The defendant, Carlos, then told his version of the fateful night. His testimony went something like this:

Carlos was on a date at a local restaurant with a lady friend of his. She left her car at the restaurant and he drove her to the nightclub. They arrived at the night club about midnight. Since Carlos was a VIP at the club, after a short wait, he was given a parking place in the front of the club. He and said lady then entered the club, underwent a security check, and were given his usual booth in the back of the club. He danced a few times and had a few glasses of Hennessey and Coke.

About 1:40 AM, the sound went off and the lights came up and people were encouraged to head for the exit. As a VIP, Carlos was offered an opportunity to exit via an alternative route but the lady had to pee so they headed towards the bathrooms locate near the main exit. They were in the back of the group being funneled to the exit area.

As they passed a large black man—Bender Bob, the two men bumped shoulders. Bob didn’t like it and gave Carlos a hard shoulder check. The two men exchanged words. Carlos said that the black man (Bob) said he was going to steal Carlos’ Rolex and then threatened to kill both he and his lady friend. Carlos testified that he told Bob to calm down. In response, Bob hit him full-on in the mouth with his right hand. Carlos said that the blow was so hard that he chipped one of his teeth. Despite the strength of the punch, Carlos said that he stood his ground and was not knocked backwards.

Simultaneously, Bob drew a gun; presumably with his left hand. Carlos said that he reached-up with his right hand and grabbed Bob’s hand with the gun. Carlos said that he was able to twist the gun toting hand of Bob around to the point that the black man (Bob) shot himself in the left side of his own neck. Carlos said that he never touched the trigger or had control of the weapon. After a single shot, the gun then fell to the floor. Carlos did not grab the gun but fled. As he was making his way down the stairs, he looked up towards the dance floor where the shooting had happened only to see Bob glaring at him from the top of the balcony. Carlos said he then exited the building. On his way out, Carlos testified that he told the head of security about the shooting upstairs (omitting his involvement) and then fled the scene.

Folks there are a few facts in the above account of Carlos’ defense that should stand out as odd comments for me to include. They stood out as peculiar to me too until we finally got to see the charges as the case was given to the jury. More to say when I discuss jury deliberation and the verdict in my next installment.

There is an old saying, “A man who is his own lawyer has a fool for a client”. I would suggest that a man who ignores him council’s advice and takes the stand to perjure himself is just as foolish.

Why was defendant Carlos telling this version of events? What he said didn’t agree with the facts presented by witnesses that had already testified and everyone in the courthouse knew it. Additionally by taking the stand, the prosecuting attorney gets free and unfettered access to the accused under oath to shred Carlos’ story under cross-examination.

Cross-examination

The first thing the prosecution attorney did was go thru the letter written from jail that was intended to get a witness to change his testimony in exchange for defendant Carlos’ written thanks and ten thousand dollars in cash. (Considering that the accused claimed to be wearing a Rolex on the fateful night, this seemed like a paltry sum to me.) Carlos admitted to writing both the letter of instructions and the letter intended to be given to the witness from his jail cell. The letter contained the witness’ personal cell phone number, and information about his wife and children including their names. (Remember he got all this info after he was put in jail.) Carlos asserted that there was no threat in the letter since he promised only good things to the security guard should he change his testimony.

The prosecution was also able to introduce more information about the Carlos’ fight (flight as in fleeing not as in an aircraft) to Las Vegas. Upon being arrested in Vegas a week after the shooting, Carlos called his wife (not the person with him at club) and told her that he would be going away for a long time for attempted murder. (Admission against interest on recorded jail phone call is not too bright.)

Carlos could not say who screened him for weapons at the club the night of the shooting but maintained that it happened. He also said that the girlfriend’s purse was not checked by club security. His story was as outlined previously; namely, the gun was the black guy’s (Bender Bob’s) and he—the defendant—never had possession of the weapon and yes the black guy shot himself. When confronted with the fact that the head of security stated that Carlos never spoke with him following the shooting, his story began leaking badly. Carlos never explained what happened to his lady friend that he left stranded at the club. Since it was after 2 AM, maybe The Chief decided she was cute enough to offer her a ride to his teepee.

Carlos’ testimony was at odds with that of other witnesses; especially the confrontation with Bob. The defense never offered any witnesses to cast doubt on the prosecution’s version of what happened or to agree with Carlos’ version of the story. In the end, it was three witnesses of varying degrees of believability or the defendant Carlos’ version that we were expected to believe. Both could not be simultaneously true in many key respects.

To be continued…

Above Sam Waterston from NBC’s Law and Order, best known as a tough prosecution attorney

The prosecution case, as simply as I can state it was similar to what follows:

Bender Bob and his Bro decide to paint the town on a Thursday night. They start with a bottle of Hennessey, I don’t really know what that is, but I know its high octane.

They get to the club and Bob is drunk as a skunk and acting somewhat belligerent. He continues drinking and at closing time, the lights come up and Bob knows it’s time to go; however, he forgets where he left his cell phone. He turns around to head back to where he was sitting to search for his phone and bumps into Carlos. The two men exchange insults.

The confrontation escalated. A nearby security guard sees Bob hit Carlos in the face so he springs into action and grabs Bob from behind to restrain him. Carlos is knocked back from the strength of the punch but remains on his feet. Just as the security guard is grabbing Bob, Carlos pulls a Glock .45 and shoots Bob. The bullet goes thru the guard’s hand and into Bob’s neck. Bob falls backwards onto the security guard and both men hit a table that shatters under their combined weight. Think of it as a sloppy Quigley shot. Meanwhile, Carlos flees the scene.

Bob exits the night club via an auxiliary exit, wraps a shirt around the bullet wound in his neck and calls his mother to say goodbye thinking that he will bleed to death.

Carlos flees Sacramento and is arrested about a week later in Las Vegas. He is extradited to California and has been cooling his jets in the Sacramento County Jail.

Carlos had lots of time to ponder his situation before the trial. As the old saying goes, idle hands are the devil’s workshop. Well, old Carlos decided he needed to make this trial go away. After six months in the county jail, he called in a few markers and had a friend make an offer that the injured security guard couldn’t refuse. Yeah, Godfather Junior tried to get the key witness to recant his story or at least the part where Carlos was identified as the shooter. Carlos offered $10K in cash to the guard in exchange for “telling the truth about what happened”.

Carlos’ friend called the security guard on the guard’s personal cell phone. Thanks to the wonder of Bluetooth technology, the guard’s wife and small children heard the offer as the family was driving home after a supply run to the local Target. The call was described by the guard as “positive”. He was promised that good things financially and otherwise would happen if he changed his story. The caller also let the guard know that they knew the names and ages of his children and that the children too might benefit if the charges were ultimately dropped against Carlos.

The guard made the lead detective in the case aware of this attempted tampering with the case and the cell phone number used was traced to Carlos. As a result, Carlos is facing even more charges.

To be continued…

I just spent about four weeks on jury duty and I need to decompress, debrief, vent, or whatever you want to call it. I plan to write a few posts covering different aspects of the experience. First, I would like to write about the process itself.

The group that I was in reported for duty on a Tuesday. We checked in with a secretary of some sort in the jury room about 8 AM. Each prospective juror is handed a questionnaire to complete. Prospective jurors are asked if they have ever been the victim of a crime, called as a witness, or know someone convicted of a crime. About 8:30, a judge entered the room and gave us a speech about the importance of jury duty and thanked us for coming. In the past, this speech was an old VHS recording dubbed onto a DVD but this time the judge was in the flesh with a microphone in hand. That was different.

A few minutes later, we were called by name not group number—yet another change from my previous times on jury duty—and sent to a courtroom on another floor of the building. After we made our way up the stairs and gathered in front of the courtroom door, a Sacramento County sheriff deputy opened the door and began calling names. The first names called were directed to the jury box. I was the third name called. Just like that I found myself in the jury box starting the day as juror number three.

The folks that are in the jury box plus some others, are then subjected to a series of questions. Based on your answers, you may find yourself excused from jury duty. Other folks were given the opportunity to be excused based on their work and the length of the trial which was estimated to run three weeks. Still others were booted from this case if they had medical trailing or specialized trailing in firearms. The questionnaire completed in the jury room is the starting point for questions along with things specific to the case. The prosecution, defense, and judge each get a copy of the questionnaires. Many people were excused from jury duty in my group. I figured that I was old, white, and male so I was sure to get the boot eventually. Amazingly, that didn’t happen. Some older folks than me did get the boot and so did all the black folks in the jury pool.

We were told to return for more on the second day because jury selection was not completed. The elimination process continued until the lawyers quit booting people. All of the sudden, about halfway thru the second morning there was agreement between the prosecution and defense. All the folks in the spectator part of the courtroom were dismissed and fifteen of us—twelve jurors and three alternates—were being sworn-in as the jury.

After a short break, the trial began.

The prosecuting attorney is given the first move in making the opening remarks of the trial. “We will prove the following…” Then the lawyer tells their case in outline form against the accused. In our trial this took about 15 minutes. Then the defense attorney had his turn and took about three minutes. He said my client did it in self-defense and sat down. Please note that you are not given a detailed explanation of the charges against the accused at the beginning. The charges were mentioned once at the beginning and not again until the trial was concluded.

A jury trial is not like you see it on television or the movies. The biggest factors in the trial are the judge and the lawyers. The judge runs the overall thing but the real work is that of the lawyers. The trial is only as good as the questions that the lawyers ask each witness. The judge will occasionally ask a question of a witness but the jury cannot.

The jury is given a tablet and pen to take notes. These notes are not allowed to leave the courtroom until the jury deliberates that case, then they can be taken to the jury room for use during deliberations. Finally the notes are destroyed.

The next thing that is very different is that the witnesses are not called in chronological order of events. Our first witness was a doctor testifying about the injuries received by the victim of a gunshot wound. Then a witness to the shooting was called. Then a ballistics guy then another witness to the crime and then lots of police. Think of court testimony as a photo that is shredded by a playful puppy and then you randomly pick up each piece that the dog did not eat to see if you can understand the whole of the picture.

Video, fingerprints, DNA, and other technical wizardry are not a big part of most trials. As in this case, it was witnesses with varying degrees of believability that were called upon to testify.

Over the course of many days the story slowly comes into focus. You get the feeling watching this unfold that trying to schedule all these witnesses is like herding cats so they can fit the timeframe of the court. Some witnesses take ten minutes and others several hours. Some are willing to testify while others clearly would rather be anywhere else than court. But again, the answers are only as good as the questions.

The prosecution has the burden to prove the case against the accused. Early in this trial, the court made a big deal about the fact that the accused was not required to testify or even offer a defense. (I will have more on this in another installed of this series.) All evidence gathered by the prosecution in the investigation is required to be disclosed to the defense.

Something else that defies life in the real world are the hours kept by the court. Trials start at 9 AM for juries but the doors of the courtroom may not open until 9:30. Lunch can begin anywhere from 11 to noon but afternoon sessions always begin (in theory) at 1:30. The day usually ends at 4 PM but can go as late as 5.

I would arrive about 7 AM each morning, eat my breakfast in the jury parking lot, and then get 5 to 6 thousand steps each morning before court began. I arrived early partially to keep somewhat to my usual working hours and partially to beat the traffic. Also, jury parking is at a premium—especially at the beginning of each week.

The closing arguments went something like this: the judge read some instructions, then the prosecution did a 50 minute PowerPoint presentation going over each charge and point of law, and then the defense council did his best to muddy-up the waters in the hopes of creating reasonable doubt. The prosecution got a short rebuttal and then the jury was off to make a decision.

In short, we took a one hour episode of Law and Order and split it into pieces over a three week period.

More on the case in the next installment.