Case Highlight: Two Officers Said He Had a Gun. We Beat the Odds. The odds were stacked against our client. Two police officers claimed they wrestled a gun from his hand, but there was no DNA, no fingerprints, no recordings, no photos, nothing to support their story. The prosecution asked the jury to take their word alone. The jury saw through it and returned a not guilty verdict, proving that even officers’ testimony isn’t enough without evidence.

 

Well, first off, thank you for being here. In some cities, there's been issues with people not showing up for jury duty; and if people don't show up, you can't have a functioning criminal justice system; and if you don't have a functioning criminal justice system, you really can't have a functioning democracy; so I genuinely do appreciate you answering the call and being here. I know [THE DEFENDANT] appreciates it because otherwise he wouldn't have his day in court; and he's been waiting a long time for it. Before I even get into what was presented, I did want to touch on something that wasn't presented; and it was alluded to during the jury selection process. Obviously, you didn't hear from [THE DEFENDANT]; and you're going to get a jury instruction. By the way, all of the jury instructions that were read to you -- If you're anything like me, your eyes were glazing over. You don't have to memorize all of that. Those will all go back with you so you can take a look at them; and if you're doing it right, you really should read the jury instructions. That should be the first thing that you do because those are the rules of the road that govern how you're going to deliberate in this case. In any event, one of the jury instructions is going to tell you you can't consider that he didn't testify at all. That can't be part of your analysis at all in this case; and that's great that that's written on a piece of paper; but I've done enough of these now and I've talked to enough jurors after to know that human nature outweighs a piece of paper; and it's only natural and human to consider that and to think, Well, hey, you know, if I was in his shoes, I would have taken the stand. I'd want to scream from the skies that I'm innocent. All right. Obviously, the right not to testify comes from the Fifth Amendment. It's from the Bill of Rights; so the Founders thought it was really important to put in there -- for it to be in there; and it is important; and it's in the Constitution for a very good reason -- because there was a recognition from very early on in this country that a man accused of a crime really is in a no-win situation when it comes to that. You can testify; and then it's just, Well, he's trying to save his own skin. If you don't testify, Well, what's he trying to hide? It's a Catch-22, which is why the Fifth Amendment exists; so I did want to touch on that before we even get into what was presented. That's why you have a lawyer do the arguing for you. He doesn't have legal training. Let's make it bit more of a fair fight where you've got two people who are lawyers, two people who have training who can argue the facts and the evidence in the case.

 

So getting into what actually was presented in this case, my colleague, [CO-COUNSEL], told you in the opening statements that you -- I think his exact words were, You won't see one shred of forensic evidence -- cold, hard evidence that would link [THE DEFENDANT] to this gun; and we're at the stage now where all of the evidence has come and it has gone; and he was proven absolutely 100 hundred percent correct. There's nothing, not one iota of physical evidence that can link [THE DEFENDANT] to that gun. I've got to tell you in this case I think that really is pretty extraordinary. We heard about a two- to two-and-a-half-minute struggle over the gun. Everybody acknowledged people are sweaty. The gun's being clutched in a hand where he's got a wound that's bleeding that took five stitches to close. There's going to be biological material all over that gun. There's going to be fingerprints. There's going to be DNA. Nothing. We don't have anything to present to you. The bullets themselves -- each one individually, all six bullets have to be loaded into that gun, pushed in presumably with somebody's thumb or finger. There is going to be fingerprints. Nothing. Nothing to present to you on that. Well, we don't have forensic evidence; but he confessed. He confessed. He said that he possessed it. Yet in a day and age where every single one of us has a recording device quickly and handily available to us in our pocket, all you've got to do is push the red button, nothing. I mean there's no plausible explanations given for this. We didn't get a search warrant because we didn't think we would have probable cause. Really? They said there was a gun recovered at the scene; and he said, Yeah, in situations like this, of course we'd be interested if there's ammunition in the house that matches the gun. Of course we'd be interested if a violent felon has other guns in the house. I mean that's common sense. That's an obvious thing that you would do in any sort of an investigation, but there was no investigation in this case. They didn't take any photographs. I don't think I'm exaggerating when I tell you there is no hard evidence in this case whatsoever. That really sets up the theme of this case. The prosecution out of necessity is asking you to put blind faith in the officers' testimony. I mean I think that's a fair statement. They're asking you to put blind faith in their testimony because there's nothing else to back it up. So it really is blind faith versus facts, evidence, and science; and which one is more important in a court of law?

 

I don't want anybody to interpret it as me attacking the police. I want to make it very clear I respect the police. If my family was in trouble, I'd rely on the police. I'd be calling the police; but police officers, and I know this too, are human beings; and I know this about human beings -- human beings misperceive, human beings misremember, human beings are biased, sometimes human beings exaggerate, sometimes human beings lie; and these two officers are human beings; and I think that we heard that they were very aware that going into a guy's yard and going hands on with him over him smoking a joint was a pretty big deal and they'd better have a pretty good explanation for why they were there. I know what kind of evidence doesn't lie. DNA doesn't lie. DNA can't exaggerate. The same can be said for fingerprints, an audio recording, evidence that actually could have been recovered from the house. Those things don't lie, and none of it's been presented to you. None of it. Again, common sense -- none of us would put blind faith in anybody's testimony. Imagine if I were to have come in. We presented three witness who all said, Well, you know, [THE DEFENDANT] never had the gun, and we saw the officers plant the gun at the scene. Would any of you just take that on blind faith? Just, Oh, sure, unquestioningly we're going to accept that testimony without, you know, probing and challenging and seeing if it makes sense or if there's anything that corroborates that sort of testimony? Of course you wouldn't. I would hope you wouldn't be that naive. It goes the other way too. Officers don't get held to a lower standard. If anything, officers should be held to a higher standard. They're trained in the preservation of evidence. They're trained to send evidence to the forensics lab. We spend millions of tax payer dollars on local forensics, state forensics, labs; and we do that for a very good reason -- because in a court of law, that's what it's all about. It's about evidence -- cold, hard evidence. That's what beyond a reasonable doubt is all about. If it was just about, Well, an officer says it happened and therefore it must have happened, I don't know why we waste all of that money.

 

I think this is a good point in the conversation to talk about the concept of beyond a reasonable doubt, because I'm sure all of you are at least familiar with that being the standard in a criminal case. And, please, I really would urge you that's the first thing you should do when you go back into the jury room is read the jury instructions. It will tell you that a suspicion, no matter how strong, is not beyond a reasonable doubt; so even if you get back there and you say, You know what? I really strongly suspect that he had the gun, that's not enough. If you get back there and you say, Well, he probably had it, a probability of guilt is not enough for beyond a reasonable doubt. That's in the jury instruction. I think something else that gives it a little more context for me is comparing it to some of the other burdens and standards that exist in the court system. Right? We're not always here for criminal cases. Sometimes there's cases that deal with money. Sometimes there's cases that deal with challenges over custody of a child, that sort of thing. Beyond a reasonable doubt is the highest standard that exists in any courtroom in this country. You can go anywhere in the country -- federal court, state court, Alaska, Virginia, anywhere -- right now the case before you has the highest standard that exists, period. It's the gold standard, the platinum standard. Whatever you would want to say is the highest standard that exists, it is it -- beyond a reasonable doubt. So I think it only logically makes sense then if we are talking about the highest possible standard, it demands the highest quality of evidence; and you have to ask yourself that question. Were we presented with the highest quality of evidence that would have been available in this case? I think the answer to that is a resounding no. Beyond a reasonable doubt -- that standard -- to take your money away from you, that's a lower standard. To even take your kids away from you -- for all of us that have kids, probably the most cherished thing we have in our lives -- it's a lower standard to take your children away from you than what beyond a reasonable doubt is. That's the burden that the prosecution has in this case.

 

Another way that helps me visualize it sometimes is imagine this was a murder case and, you know, the officers' testimony was, Well, we saw the guy enter the backyard, and he stabbed the victim three times, and he killed him, and then he dropped the bloody knife on the ground. So then we come and we have a trial, and the guy who's accused -- He pleads not guilty. He say's, No. It's not so. It didn't go down like that. They say, Well, that's what I saw. Why don't you test the bloody knife? It will be have fingerprints and DNA on it. It will prove it. Well, no. We don't need to bother with that because we're police officers and we say so. Would that fly in a murder case? I would hope not, and it's the exact same standard. Obviously, we don't have a murder case today; but whether it's a murder case, whether it's possession of a firearm, the standard is the same. It's beyond a reasonable doubt. It is identical, and you can't give them a pass. In essence that's really what the prosecution is asking for -- just give the officers a pass. They're officers. You should trust them. That doesn't fly. That's not what beyond a reasonable doubt is. You know, I was talking to my law partner, [CO-COUNSEL], and I was talking to my wife about it last night. Every man, I would hope everybody can agree, deserves a thorough, professional, competent investigation -- any man who's accused. We would all hope for that. Otherwise we should all be very scared because the only thing it takes for us to be locked in a cage and standing trial is an officer saying, You did something. That's it. That's a frightening proposition if you ask me. I mean it's not too much to ask for at least some bare minimum investigation. I mean if I were to wrap up this trial and I come home and I walk in the door and I see one of my daughters is just walking out of the kitchen and another one is standing next to the cookie jar and I say, Have you all been eating cookies before dinner? and I open it up and they're all missing, even for that where the stakes are a lot lower I might do a little bit of investigation. I might say, Okay. Does somebody have chocolate on their fingers? Let's take a look at your mouth. Are there crumbs? Let's see what the other kids have to say. I get that it's a little silly to compare the two, but I think it's outrageous that we'd have a situation where the stakes are this high and we're having a conversation about convicting this man; putting him in a cell; having him sleep on a cold, hard, dirty mattress; and the attitude is Hey, we don't need to bother with any evidence. That's outrageous. You should demand more. You absolutely should demand more than that.

 

Another thing that helps me visualize the concept of beyond a reasonable doubt -- maybe it's a little cheesy, but my personal -- the way that I visualize it a lot of the time is the case is like a boat; and at the beginning of the trial, the boat's leaving the port of the presumption of innocence; and it's got to cross an immense big body of water to get to its destination of beyond a reasonable doubt; so you've got to have a sturdy boat. It doesn't have to be perfect. There can maybe be some imperfections, some slight holes that maybe you can cover up with other evidence; but it's got be really strong. All right. When I visualize it in those terms for this case, so the boat pulls out of port; and the officer says, Well, I saw the gun in his hand. You think, Well, that's a pretty strong boat; but then even with the most minimum of challenging questions -- Okay. Well, you said he's holding it in his bloody, sweaty hand; so where's the fingerprints? Where's the DNA? Well, we didn't -- we didn't bother with that. There's no reasonable, plausible explanation for that. Well, he confessed. Oh, okay. Great. Surely then you have the recording of the confession. Well, no. We don't have that. And I thought the explanation was really pretty flimsy. I mean, I don't have a cell phone. There's five other officers there. We don't have access to cell phones for recording? You get to determine the credibility of the witnesses. He did acknowledge they have access to rooms that have audio and video recording equipment. They didn't take that commonsense step. So these are all holes in the case. There's no DNA. That's a hole in the case. The boat's taking on water. There's no fingerprints -- not on the ammunition, not on the gun. Another hole in the boat, taking on more water, starting to sink. We don't have any audio recording of anything, any of this so-called confession that he made. Another hole in the boat, starting to sink a little bit lower. We didn't bother trying to get a search warrant to see if there's ammunition matching the gun or maybe more guns in the house. A commonsense, logical step that any competent investigation would have been done. Another hole in the boat. Sinking lower. There's another guy in the backyard when the police arrive. We don't know anything about this guy. We don't know a name. We don't have a statement from him. We know nothing. Obvious, simple, logical follow up. Another big gash in the boat. This boat sank before we got halfway to beyond a reasonable doubt, the highest standard that exists in any courtroom in this country.

 

One of the other instructions is when you go back there to deliberate, the verdict has to be unanimous. Okay? So that means all of you have to reach the same verdict. A way that I put that to people that I think makes it a little bit more meaningful is that every single one of you is individually responsible for the outcome of this case. You can't hide behind somebody else on this jury. You can't just say, Well, I'm not going to voice my opinion. Somebody else said this is the way they view it. Every single one of you has your own individual responsibility in this case; and if you're doing it right as a juror, you don't take things on blind faith. You shouldn't take my arguments on blind faith, and I know you wouldn't. You shouldn't take [THE PROSECUTOR]'s arguments on blind faith. You shouldn't take anybody's testimony on blind faith. Your job as a juror is to be a skeptic. If you're doing it the right way, that's what you do; and if you're a skeptic, you challenge things; you ask follow-up questions; you poke and you prod; and you see if the testimony really adds up, if it's really got meat behind it, if there's cold, hard evidence to support it. In this case there's none. There's just none.

 

I'm going to be wrapping up in just a moment, and the prosecution gets the final word. They call that a rebuttal, which is always really painful when you're the defense attorney because you're sitting there and you want to jump up and say, No. It's not so, and make a counterargument; but you can't do that. But just because they get the last word doesn't make it so. I mean you ultimately get the last word in this case, not me, not [THE PROSECUTOR]. You know, I think that there's -- Another thing that I'd like to bring up before you go back there is I think it sometimes is difficult in cases like this because there might be almost a hesitation to say not guilty because you're saying, Well, maybe he is. Maybe he was guilty. Maybe he had a gun. Look, [THE PROSECUTOR] wasn't there that night. I wasn't there that night. All we can go on is what evidence is available. The evidence I've seen isn't very compelling. The fact that he might be guilty or maybe could be guilty -- that has no bearing. That's not beyond a reasonable doubt, and you should absolutely feel good and hold your head up high by returning a not guilty verdict in this case, One, because if you do it, you have done the job that you swore you were going to do because it's the only proper legal verdict in this case; but aside from that, you should also feel good about it because when you do that, you will have held your government accountable, you'll have sent the message that the presumption of innocence in this country still means something. Demanding proof beyond a reasonable doubt still means something in this country. The Constitution of the United States still means something. In order for that to have any meat to it, it takes people like you to uphold the law and to hold your government accountable; and you should feel proud do that. So again I thank you for your time. I thank you for your attention in this case. They haven't proven the case beyond a reasonable doubt, and so for that reason I'm asking that you return a not guilty verdict. Thank you.