Opening Statements Today in Boston Marathon Bombing Case

March 4, 2015

Opening statements are not evidence and they are not arguments. They are statements by the lawyers to sketch out their respective cases for the jury. Think of them as guided tours of the witnesses to be called and the evidence to be introduced. They are often described as roadmaps of the case and you can reasonably expect many sentences will begin with the phrase, “The evidence will show . . . “

Since the burden of proof is on the prosecution, the defense is not required to give an opening statement, but it would be foolish not to do so because they will not get another chance to speak to the jury until after the prosecution finishes putting on its case-in-chief, which will likely take several months.

I always gave an opening statement after the prosecution’s opening so that I could break their momentum and get the jury thinking about my case and I believe the defense will give an opening statement today for the same reason.

As I have said before, I do not believe this case is about winning or losing for the defense. It is about living or dying. From the defense perspective, they are going to be using the guilt/innocence phase of the trial as a slow motion guilty plea emphasizing evidence that mitigates the offense.

The defense has three powerful mitigators: Dzhokhar’s youth and immaturity, his absence of a serious criminal record, and most importantly, his fawning and submissive relationship with his older brother Tamerlan. When Tamerlan said, “Frog,” Dzhokhar said, “How high do I jump?” Beginning with their opening statement, I expect the defense will emphasize these mitigators every time an opportunity arises.

I am not expecting the defense to advance any elaborate government conspiracy theory to frame the Tsarnaev brothers. I do not believe there is any evidence to support such a theory and pursuing it would likely infuriate the jury and assure a death sentence. This does not necessarily mean they will refrain from mentioning and exploiting errors of commission or omission by law enforcement.

To our readers: Crane and I have been posting regularly at Firedoglake during Jane Hamsher’s hiatus from the site. She is the owner. You can expect to see my articles here more often as I am now growing more comfortable handling my responsibilities there.


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 porch-shooting case: Defense claims Renisha McBride was not alone when she banged on his door

July 23, 2014

Wednesday, July 23, 2014

Good afternoon:

Despite an incredibly messed up and ultimately failed effort to livestream the trial today, the prosecution and defense gave their opening statements in the Theodore Wafer porch-shooting case.

With the exception of something defense attorney Cheryl Carpenter said during her opening statement, we did not learn anything new.

Oralandar Brand-Williams tweeted,

wafer atty says he was sound asleep the heard “boom, boom, boom, boom” (shouting loudly) about noise she says he heard

wafer cld not find his cell phone, defense atty says. he goes to the kitchen..he is not armed..looking for cell phone..”‘his heart is racing

wafer looks outside and sees not 1 person but 2/ more people..the door was shaking..people were trying to get in, wafer believed, says atty

ted is thinking they’re coming to get me..they’re breaking into my house, says wafer atty.

he’s thinking go away..leave me alone..he goes to get his shotgun.it’s not his first decis. he doesn’t know what else to do, wafer atty says

Marie Osborne adds via twitter:

#TheodoreWafer trial defense: Grabs shot gun AFTER hearing repeated bangs on his front and side door. “Never so scared in his life”

#TheodoreWafer Defense: “He sees a figure and shoots. He looks and knows immediately it’s a shorter person, a woman”

Now, back to Oralandar Brand-Williams,

atty says he didn’t know if renisha was african american, arab, hispanic when he shot her to death.

My comment today:

I wonder who these other mysterious people were and if he told the police about them.

He didn’t mention them to the 911 operator.

We will find out tomorrow if Wafer mentioned these other people to the detectives. My guess is they will deny that he did and hopefully they video and audio recorded what he told them so there will not be any doubt what he said.

Until tomorrow at 9 am EDT.

This is our 1151st post.

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Thanks,

Fred


Theodore Wafer: opening statements today in porch-shooting case

July 23, 2014

Wednesday, July 23, 2014

Good morning:

Opening statements in the Theodore Wafer porch-shooting trial are scheduled to start today at 9 am EDT.

The precise legal questions to bear in mind as you listen to the lawyers lay out their respective cases in their opening statements are:

(1) whether Wafer acted reasonably when he opened his locked front door and fired his shotgun through his locked screen door killing an unarmed Renisha McBride, and

(2) whether he acted reasonably depends on whether a reasonable person in his situation would have believed himself to be in imminent danger of being killed or suffering serious bodily injury.

Wafer must be presumed innocent. The prosecution has the burden of proving that Wafer did not act reasonably when he shot and killed McBride.

The issues are the same in the Pistorius case.

Although the circumstances vary somewhat, both men fired through locked doors killing their respective victims on the other side.

Did they reasonably believe themselves to be in danger of death or serious bodily injury?

You be the judge.

A news station in Detroit is LiveStreaming this morning here:

http://www.wxyz.com/live2

Split your screen. Watch the opening statements on one and comment on the other.

This is our 1150th post.

If you appreciate what we do, please make a donation to enable us to keep the lights on.

Thanks,

Fred


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