Saturday, June 18, 2011

Two Against One: When the Judge is the Second Prosecutor

Sometimes criminal defense attorneys feel like it's two against one. That's when the judge acts as a second prosecutor.

I've been telling people this one story for years and I just stumbled on the transcript. Now I can relate it with the precise words that were used.

First some background. My client was accused of a residential burglary. The homeowner came home and saw the burglar, who fled. She called 911 and gave a description. A key element of the description is that the burglar was wearing a plaid jacket.

Remember the word plaid. It's going to come up again.

It's important because my client was not wearing any plaid when the police jumped him.

So for some detail, the first officer to testify at the suppression hearing said he was in the postal annex parking lot on Old Karner Road when he first saw my client crossing Old Karner into the McDonald's lot. Here's a satellite image:



The postal annex is in the bottom-left corner of the image. The McDonald's building is in the top center. Central Avenue is the very top-right corner. Using the scale in the bottom left corner, the edge of the McDonald's lot is about 200 feet from the driveway into the postal annex.

So as the officer is coming out toward Old Karner, he testified on direct that he saw my client:

Q (Prosecutor): What if anything did you observe as you proceeded in that direction, Investigator?

A: ... I looked towards Central Avenue and I saw a man .... He was running across Old Karner Road ... westbound towards the lot of McDonald's.

Q: What if anything did you observe about his clothing?

A: His clothing matched the clothing description given on the radio. He was wearing a flannel checkered coat ....

Q: Where did you see this person go?

A: He ran across Old Karner Road. He also, what made him suspicious was as he was running he was scanning left and right, left and right looking in a very furtive manner. He was visibly nervous. ...


Oh where do I begin? For starters, since when is it unusual to look both ways while crossing a street? What's a "furtive" manner? And how was my client visibly nervous from 200 feet away?

Now we'll get into my cross-examination of this officer. Another of the issues in the case was the police did something called a show-up identification. The link is to a blog post I wrote about it at the time.

Q (Me): Do you know who performed the show-up, Officer?

THE COURT: What's the relevance about him knowing?


Notice what's missing? The prosecutor did not object to my question. The judge stopped this line of questioning even though there was no objection. It'll happen again in this story.

On with the cross:

Q: You were describing when you observed -- first saw a gentleman running across Old Karner Road.

A: Yes.

Q: That he was looking back and forth in a furtive manner. What was the distance between yourself and him at that moment?

A: Fifty feet.

Q: And could you describe again what you meant about looking in a furtive manner?

A: His eyes were wide open. He was visibly sweating. His head was jerking back and forth almost 360 degrees as if he was looking to see if anyone was coming after him.

Q: You were able to see that he was visibly sweating from fifty feet while you were inside your vehicle; is that correct?

A: Yes. His face was very red.

Q: You were able to see his eyes were wide even from fifty feet away inside your vehicle?

A: Yes, sir. I could.


The big problem at this point is that it's not fifty feet from where the officer was to where he saw my client. As you can see in the map above, it's 200 feet or more. That's over half a football field. From that distance you can't see whether someone's eyes are unusually wide open or that they're visibly sweating. I should note this is winter and my client is wearing a coat and jeans, so the only place you could see sweat would be on his face. That's a small target at 200 feet.

We're just getting going.

Regarding the plaid jacket vs. checkered coat, I asked the officer about this bit of his grand jury testimony:

Q (from me, quoting from grand jury transcript):
"Question (from grand jury prosecutor): Did you see someone fitting that description?

Answer (from this witness at grand jury): ... I see a man who fits that description exactly running across Karner Road ...."

Were you asked that question and did you give that answer?

A: I'm going to say yes.

Q (me): So he fit the description exactly; is that correct?

A: My opinion is I may have misspoke that day. I would say he matched it very, very closely.


Going on, we get more "help" from the judge:

Q: What was he wearing when you first saw him?

A: He was wearing a flannel checkered jacket, blue jeans and work boots. In my opinion when I first saw him --

THE COURT: You have just answered the question.

THE WITNESS: Sorry.


Why is the judge stopping the witness?

And a little later, after some more back and forth:

Q: Just to be clear when you testified to the grand jury you said he fit the description exactly and you're testifying now --

THE COURT: It's been asked and answered. I already heard that Mr. Redlich.


Here again, no objection had been made. Why is the judge interfering?

But now we get to one of my favorite moments in my entire career as a trial attorney. The second officer comes up. He's the one who did the Miranda warning. As an initial part of his testimony, the prosecutor has him identify my client as the one he dealt with on the day of the arrest.

Q: Do you see the subject here in the courtroom today?

A: Yes, I do.

Q: Can you point him out for the Court?

[Not reflected on the transcript, the witness points to my client]

THE COURT: What's he wearing? What's the subject wearing?

THE WITNESS: Plaid.

THE COURT: No. Right now.

THE WITNESS: Right now, black shirt, tee shirt.

THE COURT: Let the record reflect he's identified the defendant.


Just think about what's going on at this moment. Everyone knew before the hearing that the homeowner had indicated the subject was wearing a plaid jacket, and that my client was not wearing plaid when he was arrested. To deal with Fourth Amendment concerns, if my client didn't match the description then the police should not have jumped him. And the suppression hearing is all about the Fourth Amendment.

So obviously, the second officer had been part of some conversations involving the word "plaid" that day. He knew it was an important issue.

The judge, by "helping" the prosecutor and asking what my client was wearing, accidentally exposed the witness' nerves about how they were going to deal with the plaid problem. And I'm getting ready to go out and buy a plaid suit, plaid shirt and plaid tie for the jury trial, as part of a Chewbacca defense.

After direct, I began my cross with how he (improperly) conducted the Miranda warnings. And then I came back to the plaid moment on his direct.

Q: When [prosecutor] was questioning you earlier at a certain point you were asked to identify [client] in the courtroom. Do you recall that?

A: Yes.

Q: And you were asked what he was wearing. You said plaid. Do you remember that?

A: Correct.

Q: Was plaid on your mind for some reason?

A: I misunderstood the question.

Q: Was there anything about that question that led you --

THE COURT: This is argumentative Mr. Redlich. Let's move on.

MR. REDLICH: Your Honor, may I be heard on that?

THE COURT: Was there something you didn't understand about my asking you to move on?


Again, there was no objection from the prosecutor. My question was not argumentative at all. I was trying to explore what the officer was thinking when he mistakenly blurted out plaid.

Here the judge was forcefully protecting the officer from a genuine inquiry leading to how he had obviously been prepped about a key issue.

That's why we sometimes feel the "game" of criminal defense is two against one.

On the bright side, it didn't matter so much on this case. My client was arrested a few days later for another residential burglary. Facing a hostile judge in our case and stronger evidence in the next one, he took a deal. We never got to a result on the suppression hearing. His first parole hearing will be about 10 years from now.
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