Oscar Pistorius: Defense closing argument UPDATED

August 8, 2014

Friday, August 8, 2014

Good morning:

Watch Barry Roux’s closing argument livestream here. The court is back in session after lunch.

The arguments of counsel have now concluded.

Judge Masipa announced that she will deliver her opinion in the case on 9/11 at 9:30 am Pretoria time (3:30 am EDT).

To see the morning session, go here:

Pistorius: Defense rests closing arguments on August 7 and 8

July 8, 2014

The Reenactment Video

Tuesday, July 8, 2014

Good morning:

The defense rested this morning in the Oscar Pistorius trial.

Judge Masipa has scheduled closing arguments on August 7th and 8th.

The State’s written closing argument is due on July 30th.

The Defendant’s written closing argument is due August 4th.

The video is a reconstruction of the shooting and Pistorius carrying Steenkamp’s body downstairs. His sister Aimee plays the role of Steenkamp’s dead body.

Note that Pistorius does not exhibit emotional distress reliving the event and he has little problem moving on his stumps.

His right shoulder does not appear to bother him, which is surprising since he testified that he slept on the right side of the bed, instead of the left, because his right shoulder was bothering him.

The defense claims that the video was shot for trial preparation and they never intended to introduce it at trial.

Prosecutor Gerrie Nel has decided not to bring up the video.

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Closing arguments resume today in Kelly Thomas case

January 8, 2014

Wednesday, January 8, 2014

Good morning:

Closing arguments will resume today in the Kelly Thomas case with the case expected to go the jury by the end of the day.

Defense attorney John Barnett, who represents Manuel Ramos, will complete his final argument this morning. He spoke for about 90 minutes yesterday afternoon but did not complete his final argument before Judge William Froeberg recessed the trial for the day. After he finishes his argument today, defense attorney Michael Schwartz will give his closing argument on behalf of his client, Jay Cicinelli.

Orange County District Attorney Anthony Rackauckas completed his opening closing argument yesterday afternoon and will have an opportunity to rebut the arguments of defense counsel after Schwartz concludes his argument.

You can watch closing arguments via livestream right here, beginning at approximately 9 am PST.

You can review the arguments of counsel yesterday by going here.

Briefly, police responded to a 911 call reporting a suspicious person attempting to break into vehicles parked at the Fullerton Transportation Center. Defendant Manuel Ramos was the first officer to arrive. He encountered Kelly Thomas, a mentally ill homeless person he knew from previous encounters. After a brief conversation, Ramos put on plastic gloves and told him he was going to fuck him up. Thomas stood up and attempted to get away, but Ramos and another officer got him down on the ground and began beating him. Other officers arrived and the beating continued until Thomas lost consciousness. Ramos hit him with his baton and Cicinelli hit him multiple times in the face with his taser.

The incident was captured on videotape by a security camera and audio from body microphones worn by police officers. The prosecution spliced the audio and video together to create an exhibit that has served as the centerpiece of the trial.

The prosecution has presented expert testimony that Thomas died as a result of the beating. The defense has presented expert testimony that he died as the result of an enlarged heart weakened by methamphetamine use.

You can read my article yesterday summarizing the case here.

Adolfo Flores and Paloma Esquivel of the LA Times describe the end of Anthony Rackauckas argument yesterday:

The final words of a 37-year-old homeless man filled the packed Orange County courtroom.

“Dad help me.”

“God help me.”

“Help me. Help me. Help me.”

Orange County Dist. Atty. Tony Rackauckas let Kelly Thomas’ voice provide an emotional undertone to his closing arguments Tuesday in a widely watched criminal case against a pair of Fullerton police officers accused of killing the homeless man in a furious beating on a summer night in 2011.

“I don’t know about you,” Rackauckas told jurors, “but I can’t recall ever hearing such pleas. Such crying. Such begging for his life. Ever.”

Manuel Ramos is charged with second degree murder and involuntary manslaughter. Jay Cicinelli is charged with involuntary manslaughter and use of excessive force.


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Closing arguments expected today in Kelly Thomas case

January 7, 2014

Tuesday, January 7, 2014

Good morning:

Closing arguments are expected today in the Kelly Thomas case.

You can watch closing arguments via livestream right here.

The prosecution rested it’s rebuttal case yesterday after presenting the testimony of Dr. Matthew Budoff, the program director for cardiology at Harbor-UCLA Medical Center. According to Alfonso Flores of the LA Times, Dr. Budoff testified that,

CAT scans and X-rays of Thomas’ heart show no evidence of heart failure.

“He could’ve had some early stages of damage to his heart, but his heart was not weakened,” Budoff testified.

Thomas “would not have died of heart failure because his heart was still normal at this point,” he said.

In surrebuttal the defense recalled Dr. Steven Karch, a forensic pathologist who studies how drugs can affect the heart and cause death.

Here’s Flores’s description of his testimony,

Karch, who was called back to the stand Monday morning, previously testified that people who had a habit of using meth and then stopped taking it could still be affected years later.

On Monday he stuck to his previous testimony that Thomas’ meth abuse caused his heart to thicken and scar.

Thomas died of cardiac arrest because the damage to his heart didn’t allow it to function properly, Karch said.

“Is there anything in Dr. Budoff’s testimony that changes your opinion as to the cause of Kelly Thomas’ death?” asked John Barnett, Ramos’ attorney.
“No,” Karch said.

In his previous testimony, Karch wouldn’t say whether Thomas’ fight with police on July 5, 2011, caused his heart to fail but said it could be a possibility.

Karch and Budoff said they were being paid $750 an hour for their testimony. Karch was also paid $750 an hour to review files in the case and Budoff was paid $400.

As I said yesterday,

Previous testimony has established that he did not have any drugs in his system and that he was apologizing to officers and complaining that he could not breathe as they continued to sit on him and beat him with a baton and a taser.

The beating was recorded by a security camera.

Thomas went into a coma and died five days later in a hospital without regaining consciousness.

Manuel Ramos is charged with second degree murder and Jay Cicinelli is charged with involuntary manslaughter. The former police officers were fired by the Fullerton Police Department after the incident.

I believe the defense has an uphill battle with this case because the videotape left no doubt in my mind that the officers beat him to death.

Although this case may seem like a battle of expert witnesses, California does recognize the eggshell skull principle that an actor takes his victim as he finds him and he cannot escape legal responsibility for his actions because he did not know that his victim was peculiarly susceptible to injury. In other words, even if the jury were to believe Dr. Kerch’s testimony that Kelly Thomas died from a weakened heart, that would not necessarily result in an acquittal. Depends on the specific wording in the jury instructions.

Presumably, the prosecution requested such an instruction.


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How to prepare a winning closing argument

June 29, 2013

Saturday, June 29, 2013

Good morning:

My opinion of Don West continues to plunge.

What can I say about a soporific opening statement that began with a knock-knock joke?

What can anyone say about a five-hour cross examination of a 19-year-old girl that relied on using insults to intimidate and get her to agree to his false statements?

Here is something that I can and did say to Tee about Mark O’Mara’s choice to play the possible fish game while cross examining the Physician’s Assistant.

The PA is not a specialist in diagnosing and treating traumatic head wounds.

Therefore, she was not the right person to question about the possible causes and severity of the defendant’s head wounds.

The bottom line is the defendant declined multiple offers to transport him to the ER after the shooting and he did not go to the clinic seeking treatment the following morning. He went there to get a note authorizing him to return to work and he refused to PA’s recommendation to follow up with an ENT specialist.

He also never requested or obtained an Xray, which is something that he could still do today. An Xray taken today would show a healed fracture.

There is a reason why the defendant declined medical treatment and never requested an Xray.

When O’Mara went fishing for additional possible injuries and related concerns based on an examination of the photographs of the defendant’s head taken at the police station, he caught a boatload of possible fish.

There is no known recipe for preparing possible fish.

Since the defendant did not mention, much less complain about those specific bumps or lumps on his head, there is no reason to believe those possible fish were real fish.

O’Mara pulled off a pretty good smoke-and-mirrors cross, but in the end there wasn’t anything there.

We did find out, however, that the defendant was working out for 3 hours 3 times per week doing MMA style aerobics at the Kokopelli Gym starting in August 2011.

I used cross examination to create building blocks made out of statements, admissions, or denials by witnesses. I constructed my summation or closing argument out of those building blocks.

I would be shocked to discover that Bernie de la Rionda does not have one or more medical experts who will be testifying about the defendant’s injuries.


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Zimmerman: Why No Amount of Lawyers, Guns and Money Will Save Him

September 27, 2012

The role of the lawyers during a criminal trial, whether prosecution or defense, is to present evidence through witness testimony via direct and cross examination, raise appropriate motions and objections at appropriate times, argue what facts have been proven or not proven to the jury, and argue to the judge which legal rules should be applied to resolve disputed issues that come up from time to time.

Lawyers are advocates, not witnesses. Juries are instructed in every criminal case that statements by lawyers are not evidence and may not be considered as evidence.

There are only two exceptions to this rule:

(1) By implication: When a lawyer asks a leading question and the witness agrees or disagrees, the jury may consider the answer as evidence that incorporates the lawyer’s statement in the question asked. As is true of any evidence admitted during trial, the jury gets to decide whether to believe or disbelieve the witness who agreed or disagreed with the statement and how much weight to give to the answer.

(2) By stipulation or agreement: When opposing counsel agree that the jury may consider a particular fact as undisputed. The stipulation then becomes part of the evidence the jury may consider.

Mark O’Mara will tell the jury during his opening statement that the evidence will show that Zimmerman killed Martin in self-defense. During summation, he can argue what facts have been proven or disproven in support of his argument that the prosecution failed to prove beyond a reasonable doubt that Zimmerman did not kill Martin in self-defense. The jury may not consider anything he says as evidence and the same is true for anything the prosecutor says.

Zimmerman’s statements to police and various other witnesses before trial may or may not be admissible at trial according to the rules of evidence.

Subject to the Rule of Completion, the prosecution may introduce any statement he made under the Admission by a Party Opponent Rule. The Rule of Completeness permits the defense to clarify the meaning or intent of any statement offered by the prosecution by completing the statement.

For example, let’s assume a defendant said during a long custodial interrogation at the station house, “Sure I did it. I’ll admit it if it makes you happy and you let me go even though I would be lying if I said that.”

If the prosecution elicited the statement, “Sure I did it,” the defense would be permitted on cross examination to elicit the rest of the statement, “I’ll admit it if it makes you happy and you let me go even though I would be lying if I said that.” The purpose of the rule is to prevent the prosecutor from abusing the Admission by a Party Opponent Rule by introducing bits and pieces of statements that misrepresent what was said.

Statements admitted under the Admission by a Party Opponent Rule are defined as not hearsay by the rules of evidence. Hearsay, of course is a statement, other than one made by the declarant while testifying at the trial or hearing, offered into evidence to prove the truth of the matter asserted.

The declarant is the person who made the statement and, but for the Admission by a Party Opponent Rule, a defendant’s statement would be inadmissible hearsay.

In fact, it is inadmissible hearsay, if the defense offers the defendant’s statement to prove the truth of the matter asserted. In the example above, the defendant’s statement comes in under the Rule of Completion because the prosecutor opened the door by using the admission rule to create a false impression that the defendant had confessed. If the prosecutor had not done that, the statement would be inadmissible hearsay, if the defense offered it to prove the defendant did not commit the crime.

The vast majority of Zimmerman’s statements to police and others before trial are inadmissible hearsay, if offered by the defense to prove the truth of the matter asserted in the statement.

I believe we can reasonably assume that the prosecution will not offer Zimmerman’s exculpatory statements during its case, so the jury will not have heard any evidence of self-defense when the prosecution rests its case.

Because of the hearsay rule, O’Mara cannot get any of Zimmerman’s exculpatory statements admitted to prove the truth of the matters asserted during the defense case, unless they would be admissible pursuant to one of the exceptions to the hearsay rule.

In another post, for example, I mentioned that Martin’s statements to Dee Dee expressing fear and describing what the creepy man was doing would be admissible to prove the truth of the matters he asserted because they are statements expressing an excited utterance and a present sense impression. Those are two exceptions to the hearsay rule.

Zimmerman’s exculpatory statements are not admissible pursuant to those exceptions because he had an opportunity and a motive to be deceptive after he killed Martin.

O’Mara probably will attempt to admit Zimmerman’s statements to the Physician’s Assistant at the family clinic where he sought treatment and permission to return to work. He will argue that Zimmerman’s statements are admissible as statements for purposes of medical diagnosis or treatment, an exception to the hearsay rule.

Unfortunately for Zimmerman, his claim of self-defense was neither relevant nor necessary for medical diagnosis or treatment. Therefore, those statements are not admissible under this exception to the hearsay rule.

In fact, Zimmerman probably will not even get a self-defense instruction, unless he testifies, because there will not be sufficient evidence to support giving a self-defense instruction. O’Mara cannot create a sufficient evidentiary foundation to support instructing the jury on self-defense by what he says during his opening statement because his statements are not evidence.

Therefore, Zimmerman has to testify. If he testifies, the prosecution gets to cross examine him. That means the prosecutor can confront him with every statement he made before trial that is inconsistent with or in conflict with a statement he made on direct examination.

During its rebuttal case after the defense rests, the prosecution can introduce any evidence it has that rebuts evidence presented by the defense during its case. This would include presenting forensic or other evidence that rebuts something Zimmerman said and it also includes evidence of bad character, if the defense opened the door by presenting evidence of good character during its case.

In conclusion, Zimmerman is between the proverbial rock and a hard place because he is unlikely to get a self-defense instruction unless he testifies, but if he testifies, his credibility likely will be destroyed by all of his inconsistent and conflicting statements to police and others.

Damned if he testifies and damned if he does not, George Michael Zimmerman is in such a hell of a jam that no amount lawyers, guns and money will save him from a lengthy prison sentence.

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