“Why did you shoot her?”
“I don’t know.”
With these three words, the defendant buried himself, and no matter what I did to rehabilitate a self-defense claim before the jury, we were sunk. It showed that no matter what one plans, sometimes something can, and always will, go wrong.
The defendant in the jury trial had done well on direct examination as I walked him through the facts of the case. He testified that he was visiting the young woman’s house to see her brother, someone we claimed was dealing drugs, albeit the minor contraband of marijuana. They had gotten into an argument that became physical and the brother knocked the defendant to the living room floor, spilling along with him money from drug sales that had covered a coffee table. While falling, my client had pushed the cushion of a love seat askew, revealing a small handgun we claimed the brother had hidden there.
The two men struggled for the exposed gun, with my client getting control. He fired the weapon when the assailant’s older, but much smaller, sister rushed toward them to help her brother.
“Why did you shoot her?” the prosecutor posed on cross-examination. It was what is known as an open-ended question, and not a very good one. An attorney should never ask a question unless he or she knows what the answer will be.
“I don’t know,” the defendant answered just as badly. But, he said it with such honesty, the jury took notice.
It was the wrong thing to say. There was a ring of truth to it, and despite any reasons or explanations we could later offer, it sealed his conviction.
I had gone over his testimony again and again, stressing how he must convince the jury that he was fearful for his life, that the only reason he pulled the trigger was to defend against serious bodily injury. It was the classic response for an affirmative self-defense claim. You cannot use deadly force against another unless you believed such force was being used against you. It’s called a justification defense.
I even recruited a senior attorney from my office to help prep the witness. Thurgood Mathews, a mentor for me and many other young attorneys, patiently walked the client through the testimony and pointed out the key things he needed to stress while on the witness stand.
None of this sunk in, or if it had, my client had frozen and reverted to a child-like youngster who, while not meaning any harm, could not say he was scared by the girl, something the fact-finders needed to hear to render a “not guilty” verdict.
“She had come at me with something in her hand,” the defendant had told me. He couldn’t say what she held, be it a pen or a letter-opener. At the time of the shooting, he could not distinguish it from a more serious object, like a knife, which presented us with a decent self-defense argument. “I didn’t mean to shoot her,” he said. What I couldn’t get this young person barely out of his teens to admit was that he was afraid of her while lying on the floor. He just couldn’t say or mouth the words, “afraid,” “fearful,” or “scared.” Was it macho on his part? Was he afraid to admit a tiny female could make him squirm like a baby? I don’t know.
I hired an expert on his behalf. The former coroner of a neighboring Philadelphia County testified to the angle of the gunshot wound and the trajectory it took. It was caused by a shot fired from below the victim, on an angle from where the defendant said he lay sprawled on the floor.
The prosecutor presented his own expert, who claimed the woman was shot from a different angle, thereby canceling out my expert, causing the jury to base its verdict solely on lay witness testimony.
I got close to crossing the line during the trial. Unable to bring out the record of her brother because of procedural rules, I got his mug shot, blew up the arrest photo, and stood with my back to the jury providing a full view of the picture when asking if she could identify the picture as that of her brother.
The prosecutor objected. Common Pleas Court Judge Ricardo Jackson sustained the objection and ordered it kept out of the record as evidence.
The jury found my client guilty, the first and only time I lost a trial before this judge. He was known for imposing the maximum sentences. My client got twelve years, the maximum. It was his first offense.
His sentence, however, was thrown out following an appeal, and the defendant ended up having to serve six years, slightly more than what the prosecutor sought for a guilty plea for aggravated assault. That required a minimum sentence of five-to-10 years.
I heard nothing more about the woman or her brother. There were no permanent injuries, and as far as I know they could have gone on to live happily ever after.
I hope the years have taught my former client that there is nothing to be afraid of in saying “I’m afraid.” Admitting fear is the first step in overcoming that fear. And, there is nothing unmanly in saying the one scared you the most in life was little woman.
I heard that the Philadelphia judge was Ricardo Jackson, a jurist known for giving out the harshest sentences in Philadelphia history . . .
I confess that I watched the entire Casey Anthony saga… The arrests, the pleadings, Frye Hearings, pretrial motions and the trial. Also, because of Florida Sunshine Law, I was also able to read/see/hear everything that by Florida definition was public record. Before that case, my only contact with legal proceedings involved worker compensation lawsuits – me being on the defense side of the equation and clearly different from criminal law processes AND the public records law – both parts of my job with the state. I further confess that much of the Anthony legal process left me sickened. Before this immensely educational experience, I was unaware that defense attorneys could file motions to have evidence withheld at trial. I was also unaware that once excluded, any mention would/could result in mistrial. I guess I saw too many TV trials where anything goes… Anyway…the court procedural rules that allow some things to be forbidden to mention really bother me because, if mentioned, a mistrial has just cost everybody a ton of money for nothing. When not mentioned, I don’t feel like the jury has all the facts. Since I’m not a lawyer, I am probably wrong in my thinking. I just feel like a jury should be able to consider/discard whatever info is involved in the case.
It is usually the defense attorneys seeking to suppress evidence, but I’ve had judges who kept out a person’s record as well as a lawsuit which I wanted to show a jury that the victim had a propensity for violence.
It cuts both ways. That’s why Lady Justice carries a dual edge sword!
(I tried to leave a comment using the iPad-optimized version of your blog but it doesn’t appear to have worked. If the same comment shows up three times, feel free to delete a couple of them, as they’re of no use to anyone and would probably only serve to increase our carbon footprint or something)
Man, that must have been troubling for you to hear, as soon as he said it. I can almost picture you wanting to put your head between your hands and shake it sadly, but stopping just in time.
You keep going, trying not to miss a beat but you know the music will soon come to a disappointing end .. .
Excellent and emotionally honest post. Thank you for sharing.
My -pleasure, Livvy.