Dzhokhar Tsarnaev: Opening Statements

January 15, 2015

Thursday, January 15, 2015

Good morning:

I write today about the purpose of an opening statement in a jury trial in a criminal case and distinguish it from a closing argument, which I regard to be considerably less important. Generally speaking, if a defendant’s lawyer has failed to persuade jurors that a reasonable doubt exists before closing arguments, nothing the lawyer says during closing argument is going to prevent a guilty verdict.

After a jury has been selected and sworn, the lawyers have an opportunity to preview their respective cases for the jury. We call this opportunity the opening statements of counsel. Notice that I use the word ‘statement,’ rather than the word ‘argument.’ A statement is a description of the evidence that will be introduced during the trial. An argument is an interpretation of the significance of that evidence. When lawyers give their final arguments, after the evidence has been admitted and both sides have rested, they are summarizing their respective cases and attempting to persuade the jury to either return a verdict of guilty (prosecutor) or not guilty (defense).

Most lawyers believe closing arguments are the most important part of a trial. I disagree because, in my experience, jurors have already formed an opinion about the guilt or innocence of the accused before closing arguments. If a lawyer fails to take care of business during the evidentiary part of the case, they are not going to be able to change juror’s opinions no matter how persuasive they believe they can be.

As I’ve said many times, jury selection is the most important part of the trial because lawyers are selecting the people who will decide the case. Select the wrong people and there will be little to no chance of winning. Opening statements come in a close second because that is the first time that a lawyer can tell the jury about his case.

Since prosecutors have the burden of proof, they go first. Opening statements by prosecutors are like road maps with many sentences that begin with this phrase, ‘We expect the evidence will show that this defendant (fill in the blank). You will hear from witnesses who were present when he did it and they will tell you what he did. If done properly, everyone in the jury box will think the defendant is guilty.

Although the defense is not required to give an opening statement, only an incompetent fool would reserve or waive it. Particularly in a lengthy and complex case like the Boston Marathon Bombing case, the prosecution may take several months to put on their case. Defense has to say something to persuade jurors to reserve judgment until the case is over. This requires focusing their attention on weaknesses in the case.

We will get a much better idea about the strength of the government’s case when they give their opening statement. We will also be able to tell what the defense will be.

Opening statements should happen sometime during the first two weeks of February.

FYI: Judge O’Toole denied a new defense motion for a continuance of the trial based on the extensive publicity about the Paris terrorist attacks, which they claimed might adversely influence prospective jurors against Dzhokhar Tsarnaev.

#TheodoreWafer: Closing arguments today

August 6, 2014

Wednesday, August 6, 2014

Goo morning:

Join us in the comments.

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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Wednesday night review of the Dunn trial

February 12, 2014

Wednesday, February 12, 2014

Good afternoon:

Closing arguments concluded today with an exceptional 36 minute rebuttal argument by Assistant State’s Attorney John Guy.

Several memorable statements:

He didn’t shoot to save his life. He shot to save his pride.

The detectives didn’t sleep through the night, the defendant slept through the night.

The physical evidence is irrefutable and supported by the eyewitnesses.

Who has the ultimate interest in the outcome of this case? It’s the defendant and his story keeps changing.

Michael Dunn has an excuse for everything, but an explanation for nothing.

Your verdict won’t change the past, but it will forever define the past in this town.

To the living we owe respect. But to the dead, we owe the truth.

Judge Healey is finishing up his reading of the instructions to the jury.

Yesterday, he said he would permit the jury to deliberate this evening after dinner, if they are amenable, but will not let them deliberate after 8 or 9 pm.

What do y’all think about the case and what happened today?


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Live blogging closing arguments in Michael Dunn trial

February 12, 2014

Wednesday, February 12, 2014

Good morning:

We will be live blogging the live stream of closing arguments in the Michael Dunn trial today.

They are scheduled to begin at 10 am, EDT and will probably end sometime between 4 and 5 pm.

The State will go first and the defense will follow. Since it has the burden of proof, the State will have an opportunity to rebut the defense closing.

The State’s burden of proof is not only to prove each element of each crime charged beyond a reasonable doubt, but to also prove beyond a reasonable doubt that Dunn did not act in self-defense (i.e., that he did not reasonably believe himself or his fiancee to be in imminent danger of death or serious bodily injury when he fired his gun multiple times at the boys in the red Durango).

The arguments are scheduled to start in about 30 minutes.

Court is already in session discussing the final set of jury instructions.

Here is the link to the First Coast News live stream.


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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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