Tsarnaev: To testify or not to testify, that is the question

January 13, 2015

Tuesday, January 13, 2015

Good morning:

The Fifth Amendment provides in pertinent part,

No person . . . shall be compelled in any criminal case to be a witness against himself.

This means that a defendant in a criminal case has a right to remain silent and not testify during his trial. The prosecution cannot call him as a witness or comment on his silence during closing argument, if he decides not to testify. See Griffin v. California, 380 U.S. 609 (1965). Since the defendant is presumed innocent and the burden is on the government to prove guilt beyond a reasonable doubt, the court also will instruct the jury that it cannot assume the defendant is guilty, if he exercises his right to remain silent. Silence is insoluble because there may be any number of reasons why a defendant may decide not to testify.

Unless my client’s testimony was necessary to win a case, I always recommended he remain silent. Terrible things can happen when a skilled prosecutor cross examines an innocent defendant. Chief among them is the evaporation of the presumption of innocence. Juror focus changes from examining weaknesses in the government’s case to looking for and speculating about inconsistencies in the defendant’s testimony.

Generally, the defendant’s testimony is going to be necessary when the government can prove he committed the acts charged in the indictment, but he can provide an innocent explanation for why he committed those acts. For example, he may have delivered five kilos of cocaine to an undercover cop, but he did it because the source of the drugs kidnapped his daughter and threatened to kill her, if he did not deliver the drugs (duress) or he may have believed he was performing a favor for a friend who asked him to deliver a large wrapped package containing rice for a wedding (lack of knowledge). Entrapment by government agents is another example (to show inducement by the government and absence of predisposition to commit the crime). A defendant claiming self-defense in a murder case usually has to testify in order to explain why he believed he was in imminent danger of death or serious injury such that it was reasonably necessary to use deadly force. Defendants claiming consent in a rape case usually have to testify as does a defendant who wants to deny that he confessed to committing the crime charged or testify that police coerced or beat him into making a false confession.

Since the defendant has a constitutional right to remain silent or testify, he must make the choice. If you have watched a criminal trial, you probably have seen the judge advise the defendant outside the presence of the jury regarding his right to remain silent or testify. This colloquy creates a record for appeal that the defendant’s decision was knowingly, intelligently and voluntarily made after fully discussing the matter with his lawyer.

Dzhokhar Tsarnaev will not have to decide whether to testify until after the government rests its case-in-chief.* That might not happen until after Memorial Day. That distant day will not dawn until after his attorneys have extracted as much beneficial evidence as possible, which usually comes in the form of testimony by defense witnesses, if any, and admissions on cross examination by prosecution witnesses to bias, prejudice, lack of knowledge, uncertainty, or testimony inconsistent with prior statements. Only then will his lawyers be able to offer him sound evidence-based advice.

They also will have to consider whether the government will be able to impeach him with evidence that he admitted committing the crimes charged when the FBI interrogated him in the hospital after his arrest. Although he apparently was not Mirandized (advised that he had a right to remain silent and a right to counsel), statements obtained in violation of Miranda are admissible as impeachment if they were voluntary and conflict with his testimony.

Because this is a death penalty case, he and his lawyers also will have to consider what effect his testimony might have on the jury, if he testifies and they reject what he says, catapulting the case into a penalty phase. Denial of responsibility and absence of remorse are unlikely to evoke mercy.

He can testify in the penalty phase, even if he does not testify in the guilt/innocence phase. He also has the right to allocution, which is to make a statement to the jury after both sides have rested that is not subject to cross examination.

Finally, because the rules of evidence strictly limit the scope of what may be presented at trial to evidence that is probative of the elements of the crimes charged and any defenses asserted by a defendant, trials are poor vehicles to implement social change. What the FBI did in other cases probably isn’t going to be relevant in the Tsarnaev trial.

As I’ve said before, I believe attempting to prove the existence of an FBI conspiracy to entrap an innocent Dzhokhar Tsarnaev is likely to evoke anger, scorn, disbelief and a death sentence, unless it can be proven beyond a reasonable doubt. Gerry Spence did that with case-specific facts while representing his client, Randy Weaver, in the case involving the government siege at Ruby Ridge.

A more appropriate comparison might be to Timothy McVeigh, the convicted Oklahoma City bomber whose complaint about government misconduct in the siege of the Branch Davidian compound near Waco, TX did not evoke much sympathy.

Assume for the sake of argument that you are representing Dzhokhar Tsarnaev. Imagine that his life is now in your hands. Would you recommend that he testify or not in the guilt/innocence phase and why?

*I see no possibility of resolving this case with a plea bargain because I believe the government has rejected Tsarnaev’s offer to plead guilty in exchange for an LWOP sentence. That ship has sailed and jury selection is underway. The government obviously believes it has an ironclad case or it wouldn’t have rejected the offer. Only a significant and unanticipated development altering that perception would bring the government back to the bargaining table.

Other Resources:

Dzhokhar Tsarnaev: Coconspirator and Accomplice Liability

Dzhokhar Tsarnaev Death Penalty Trial Started Today


Using Colorado Method of Jury Selection in Tsarnaev Death Penalty Trial

Plea Bargaining in Capital Cases
Tsarnaev: Death penalty cases are won or lost during jury selection


Michael Dunn’s sentencing must be continued to avoid constitutional error

March 11, 2014

Tuesday, March 11, 2014

Good morning:

Judge Russell Healey said yesterday that he will announce his decision on Friday, regarding the defense motion to continue Michael Dunn’s sentencing until after the retrial of the murder charge.

For the following reasons, I believe he must grant the motion to avoid constitutional error.

Briefly in review, the jury convicted Dunn of three counts of attempted second-degree murder and one count of shooting into a vehicle. It hung 9-3 in favor of convicting him for shooting and killing 17-year-old Jordan Davis.

Dunn was represented at yesterday’s hearing by his trial counsel, Cory Strolla, who is withdrawing because Dunn is out of money. He will be replaced by a public defender.

He argued that the sentencing must be continued because anything Dunn says at his sentencing can be used against him at the retrial.

The prosecution has objected to the continuance on the ground that Dunn has waived his right to remain silent by testifying at trial.

Although the answer is relatively simple, Judge Healey appears to be struggling a bit with this motion.

Let’s break it down :

The Fifth Amendment states in pertinent part,

No person . . . shall be compelled in any criminal case to be a witness against himself.

First, as long as Dunn remains in legal jeopardy of conviction on the murder charge, he can assert his right to remain silent, even if he has previously testified.

Second, Dunn also has a right to allocution, which means he has a right to be heard before the court imposes the sentence.

Third, if he exercises his right to allocution, he sacrifices his right to remain silent. He cannot be compelled to make that choice and that is the precise problem he faces.

Therefore, Judge Healey should grant the defense motion.

I am surprised that the prosecution has failed to see this issue.

My question for Angela Corey is why build constitutional error into the record at this point? Dunn is not going anywhere.

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This is our 928th post and donations are lagging. We work hard to keep you informed by filling in the blanks between the lines. After 30 years in the trenches, I am familiar with all of the rules and strategies prosecutors and defense counsel utilize. Experience counts and most of my predictions have been accurate.

Adjusting and fine tuning to dial in the white fear and racist corruption frequencies in the Florida courts took some doing, but I am on track now.

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Dzhokhar Tsarnaev should be Mirandized

April 21, 2013

Sunday, April 21, 2013

I write today to defend a fellow citizen’s Fifth Amendment right to remain silent during a custodial interrogation and his Sixth Amendment right to consult with counsel and have counsel present during a custodial interrogation. He has not been questioned yet due to his medical condition.

Dzhokhar Tsarnaev is a naturalized United States citizen in custody for his suspected participation in a scheme that detonated two bombs killing 3 people and injuring many more along the Boston Marathon race course on April 15, 2013. He is also a suspect in the murder of a law enforcement officer on the campus at the Massachusetts Institute of Technology after the bombing.

He is not an enemy combatant who attacked United States military personnel on foreign soil.

Dzhokhar Tsarnaev should be advised that he has those rights before law enforcement agents attempt to question him and no interrogation should take place, unless he voluntarily waives those rights and agrees to answer questions. No less is required by the SCOTUS decision in Miranda v. Arizona, 384 US 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

If an interrogation proceeds without the advice of rights and voluntary waiver of those rights required by Miranda, then anything he says should be suppressed and cannot be used against him in a court of law.

He has the right to be charged and prosecuted in the United States criminal justice system, rather than before a military tribunal, and accorded all of the rights that would be accorded to any other defendant charged with a crime.

The United States Department of Justice has announced that he will be prosecuted in the civilian criminal justice system and that is a proper decision.

However, despite an acknowledged lack of any evidence or reason to believe that Tsarnaev is part of a larger plot with plans to commit other terrorist acts, the Justice Department has announced that it intends to interrogate him without Mirandizing him.

This decision is an intentional violation of Miranda that not only violates the suspect’s rights, it potentially jeopardizes the prosecution.

There is no reason ever to sacrifice due process of law and this casecertainly provides no compelling reason to consider making an exception.

For more information, read this informative article by Josh Gerstein at Politico.

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Writing articles every day and maintaining the integrity and safety of this site from people who would like nothing better than to silence us forever is a tough job requiring many hours of work. If you like this site, please consider making a secure donation via Paypal by clicking the yellow donation button in the upper right corner just below the search box.

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Featuring: Willis Newton regarding Zimmerman and the good-cop good-cop interview technique

March 25, 2013

Monday, March 25, 2013

Willis Newton posted an excellent comment at 11:37 pm last night on the open thread regarding the defendant and the good-cop good-cop interview technique.

The only correction that I feel a need to point out is that a criminal defense lawyer would have advised the defendant to shut his mouth. There are no exceptions to that rule.

This full-of-himself intellectually challenged defendant caused irreparable damage to his case when he decided that he could talk his way out of being charged with killing Trayvon Martin. Once he got going, he could not stop and the pièce de résistance was the Shawn Hannity interview.

State’s Attorney Angela Corey and Assistant State’s Attorney Bernie de la Rionda did the right thing when they declined to talk to the defendant as they are ethically prohibited from talking to a defendant represented by counsel, even if the defendant initiates the contact.

George was handled by Serino and Singleton of the SPD in a manner I’d call “good cop/ good cop.” Both tried to be amicable and played to his vanity and let him think they were his “buddies.” This was not because they believed him, it was because this attitude kept George “cooperating” by continuing to make multiple statements without a lawyer present, after being advised of his right to refuse to answer any questions without a lawyer present.

Let me just say this now – anyone, ESPECIALLY innocent people, but anyone, anyone is a fool if you let the cops question you without a lawyer present. They are NOT your friends, no matter how many times they let you go to the bathroom or buy you a cola from a vending machine. They are doing their job, which is to get you to talk yourself into a criminal conviction.

George bought the routine hook line and sinker. He was a fool for giving so many statements, as it became very cleat quickly that he was pushing a false narrative and telling a story that was fraught with inconsistencies, critical omissions and clear contradictions.

One thing he was tricked with was the “voice stress test,” which is a useless and pointless exercise that proves NOTHING and is never admissible in a court of law. George agreed to the test because he thought the cops were believing his lies, and his ego told him that he could and should “talk his way out of this one” since the cops were seemingly sympathetic to his plight. The real and true purpose of the voice stress test was to get George to run through his whole (false) narrative one more time with as little interruption as possible. The “test taker” was simply a new interrogator, but one whose job it was to feign disinterest as he asked George “on background” to relate his tale so the test taker could “set up the voice stress machine.”

Notice that “as they waited for the tester” the cops also let GZ sit around for a long quiet period with detective Singleton. This too is a deliberate session of evidence-gathering that detectives use on a regular basis – put the guy at ease but do anything to keep him from calling a lawyer -just keep him making statements.

She’s being mostly quiet so that he will KEEP talking to fill the uncomfortable silence. It’s here that he made the telling remarks about how “suspects” need to respond to “authority” but that he thinks Singleton “doesn’t have to worry” about that since she has such a commanding presence, or whatever it is that he says exactly. I’m paraphrasing a bit here, but it was a telling moment and I predict will be shown to the jury as part of the overall portrait the prosecution is going to paint to color him as a wanna-be authority figure who had no legal right to profile and pursue a teen to the point where the child fled in terror, and then for GZ to leave his vehicle with a loaded weapon and continue on foot after him into the proverbial “dark alley.”

Whatever the reason the police let him go home that first night, Serino made certain that GZ was going to “keep cooperating.” Letting him go home was a gamble, but one that paid off well since the next day GZ cooperated AGAIN without having a lawyer present and did a “re-eneactment” for the detectives that was less than credible, and again made for several very telling moments that could be presented to a jury to show his lack of credibility at the least. George told provable lies about where he pulled over his car and how his car ended up near the cut thru when he got out of it and started following the teen. Then he massively contradicted his many earlier accounts when he suddenly added the “I must have stumbled” portion of the account of the “first punch” that may or may not have even happened. Each time he’d previously spoke of this alleged blow to his face, he described things like falling backwards, and how he was knocked IMMEDIATELY to the ground before “Trayvon mounted him” as George alleges the teen did. Suddenly George has to insert a 40 foot “stumble” right in the middle of where he wished he could again claim he was knocked to the ground where he stood.

Keep in mind if George had waited for his lawyer to be present, the lawyer would likely advise him to make ONE statement that was carefully crafted and then to refuse to cooperate any further. I’m not certain about this but imagine if GZ had called a lawyer and kept his mouth mostly shut. He may have spent a few nights in jail, but it would be more difficult to impeach his credibility, a key component of his upcoming murder trial. He may have even avoided a trial altogether. His own words are what is going to sink his ship.

After the “re-enactment” the detectives confronted him about his inconsistencies in the harshest session of questioning, but as you listen to the recording keep in mind they are careful to frame their disbelief and harsh questions by mentioning the need for George to “keep his story straight for later” essentially as if what was happening contemporaneously was his “cop buddies” leading him down the path to freedom and insider treatment. They don’t QUITE pull off the whole ruse of buddy-buddy, partially because his lies are too difficult to swallow but also because George is so suspicious and guarded in his words. But the detectives still act as though “this is all just so we can set the record straight” and that George is “gonna be fine probably” etc.

Never do the SPD detectives posture that they are “holding him for questioning.” It’s always that they are “allowing him to make a statement,” or some such polite way of putting things, as though his cooperation is helping them seal the fate of the dead “suspect” who “attacked” him. This is how “good cop/ good cop” works.

Someone in the SPD made the call that George “should be handled with kid gloves” and also let go to sleep in his own bed. It was a pragmatic decision since at the beginning the detectives saw they lacked a good witness to the events from start to finish and that GZ killed the only other person who they thought heard the start of the fight. Keep in mind they had yet to learn that TM was on the phone at the time the fight started.

The fact that George kept in touch with Serino while he was out and not facing a grand jury or criminal charges is a sign that Serino had gained some measure of his trust. Before GZ called Angela Corey he also had been speaking with Serino. I am guessing its likely GZ asked Serino something obsequious like “do you think it might be a good idea if I were to call the state’s attorney and let them know (what a good boy I am) etc?” Serino knew he was pretty much off the case by then but tried to keep the “good cop” ruse going.

Recall the two clown lawyers who weren’t really his lawyers? I also am guessing one of both of them, idiots that they were, knew enough to try to advise George of the folly of trying to consider Angela Corey his new buddy. Whatever the timing and whomever was advising George, he didn’t get his chance to cozy up to the special prosecutor because the state wisely refused to see him at all until he retained a lawyer. He called Corey but she wouldn’t take that call IIRC.

So in answer to the question, “what was he thinking when he tried to see Corey?” I’d say the guess is probably right that he still felt like he could talk his way out the jam he was in. (SO far, so good, he felt.) He’d killed the only real witness to his car-to-pedestrian chase and was fairly sure no one saw how the physical altercation began. Somehow he’d gotten the lucky break of having someone, Shellie probably, move his car away before it could be searched or its location noted. (which way was it facing? He could be lying about that but we don’t know, and we may never know.)

His arrogance is staggering, but his gullibility is as well. IMO Serino did a good job of “handling” George. He may have made other mistakes but in this regard his strategy was a wise one. And the special prosecutor made the wise call that despite George possibly being willing to come make more “statements” that he’s been given enough rope to hang himself with already. They knew the statements he’d given the SPD and they felt they had enough already to paint him as the two-bit liar that he is.

If Serino ever gets a book deal, I’ll buy his book. He’d got things to answer for, but keep in mind he looked into GZ’s eyes and read his body language, heard his story, walked the grounds with him and then looked again into his eyes as George was confronted with the NEN call recording and several of his contradictory statements. If anyone in the world knows whether or not to believe GZ it’s detective Chris Serino, who wanted to charge him with murder and was willing to settle for manslaughter but NEVER felt GZ was in the clear.


Combining the immunity hearing with the trial in the Zimmerman case is a terrible idea

March 6, 2013

Wednesday, March 6, 2013

Several of you, including Xena, Southern Girl and Towerflower, have asked me to comment on the possibility of combining an immunity hearing with the trial. I do not believe that is a workable solution because it would violate the defendant’s right to remain silent and the presumption of innocence.

Let us use the defendant’s case as an example.

In a typical immunity hearing, a defendant has the burden of proving by a preponderance of the evidence (more likely so than not so) that he acted in self-defense. He puts on his case first, since he has the burden of proof, and the prosecution goes second. If the judge concludes that he satisfied his burden, she will enter an order granting him immunity from civil suit and dismiss the criminal case.

A defendant is not required to testify at the immunity hearing, but if he testifies, and most will since they have the burden of proof, he does not waive his right to remain silent at a subsequent trial, if the judge denies his motion for immunity.

If the hearings are combined in GZ’s case, the prosecution will go first because it has the burden of proving beyond a reasonable doubt that he did not kill Trayvon Martin in self-defense.

Let us suppose for the sake of argument that the defense manages to poke some holes in the prosecution’s case such that the defendant and his lawyers are pretty confident about winning the trial without putting on a defense. They do not believe the defendant needs to testify and he does not want to testify.

The defense moves for a judgment of acquittal and for an order granting immunity.

For the purpose of the criminal case and ruling on the motion for a judgment of acquittal, the judge would be required to decide whether a rational trier of fact could find beyond a reasonable doubt that the defendant was guilty based on the evidence introduced during the prosecution’s case. Let us further suppose that the judge decides that a rational trier of fact could convict the defendant and denies the motion for a judgment of acquittal.

For the purpose of ruling on the immunity issue, the judge would be required to decide whether the defense had met its burden to prove by a preponderance of the evidence that he had acted in self-defense. There is little likelihood that the judge would grant the motion because the defense has not put on its case and the defendant has not testified. Therefore, the judge would deny the motion.

Now what happens?

If this were “just” a trial, the defense would rest without introducing any evidence or putting the defendant on the stand to testify. I won about 80% of my trials by employing this strategy, including some self-defense cases by relying on the presumption of innocence and arguing reasonable doubt.

The defense cannot use that strategy, however, if it wants a shot at immunity. Since it has the burden of proof, it must put on a case and the defendant has to testify.

Do you all see the problem now?

The defendant has to give up his right to remain silent to have a shot at immunity, but if he testifies, he risks not only losing the motion for immunity, he also risks being convicted by the jury, if the jury does not believe him.

In other words, in order to exercise his statutory right to an immunity hearing, he is forced to give up his right to remain silent and be presumed innocent in the criminal case.

Notice that combining an immunity hearing with the trial only hurts a defendant.

There is a very long line of SCOTUS cases that prohibit forcing a defendant to give up one constitutional right to exercise another.

That is the problem with combining a pretrial immunity hearing with a trial.

It is also the reason why pretrial suppression hearings in criminal cases are not combined with trials.

I realize that this procedure has been followed in other cases in Florida, and Judge Nelson could decide to follow it in GZ’s case, but I think she would be unwise to do so.

For example, if the defendant were to testify, the jury found him guilty, and Judge Nelson denied his motion for immunity, you can bet that he will claim that he was forced to waive the presumption of innocence and his right to remain silent in order to exercise his statutory right to an immunity hearing and that his lawyer provided ineffective assistance of counsel in violation of his Sixth Amendment right to counsel by waiving his right to a pretrial immunity hearing.

I believe that the case will be reversed and remanded for a new trial, if the scenario that I have described takes place.

The scenario is not far fetched.

Frankly, I am shocked that defense counsel would even consider combining the immunity hearing with the trial. Either they are incompetent or simply using this idea as a smokescreen to conceal that they know they have no case.

They may be unwilling to admit publicly that they do not really intend to pursue the request for an immunity hearing during the trial for the simple reason that they fear financial contributions to the defense would wither away to nothing.

I regard that as theft by misrepresentation.

GZ’s supporters should be screaming bloody murder about this latest turn of events.

Instead, his supporters, including some criminal defense lawyers who should know better, are calling yesterday’s decision a victory for the defense.

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The Art of Cross Examination (Part 4) The Killer Cross That Never Happened

December 23, 2011

Author’s Note: This is a continuation of the Killer Cross. If you have not read the first part, please go here to read it, as it is important for the sake of continuity.

Notice that each question is a leading question. That is, the questioner, in this case the defense attorney, makes a statement and asks the witness, Deputy Eddie McGuire of the McCracken County Sheriff’s Department, to agree or disagree with it. With the exception of a few questions to which the answer is common knowledge or otherwise apparent, the statement in each question is a prior statement that the witness made in his report or a prior statement that he made under oath while testifying at the preliminary hearing, grand jury, or suppression hearing.

After the question that contains the witness’s prior statement, I provide an answer that confirms the prior statement that he made. Below the answer in italics, I provide the source for the statement.

For example, in the first question below (#25 in the sequence that started yesterday), Deputy McGuire testified at the preliminary hearing that he pulled Crane Station over because he thought she possibly had some heroin. If he had answered the question below with a “No,” the lawyer would have impeached him with his prior inconsistent statement under oath by following the formula that I presented in Part 2 of this series. Please review that procedure, if you have not read it or are uncertain about it.

As I have said previously, impeachment by prior inconsistent statement is one of the most powerful and effective tools to cross examine and destroy the credibility of a witness and your opponent’s case.

Unfortunately, Crane Station’s lawyer, Chris McNeill, refused to use this cross examination and he lost the case. However, in the strange manner that the universe works, his refusal ended up giving me this opportunity to educate all of you about something only a few of you know anything about, which is the art of cross examination.

In a subsequent post, I will discuss why I think he declined to use it.

I love teaching! and I hope you enjoy reading the Killer Cross that never happened.

All rise. Court is back in session. You may be seated.

25. Deputy McGuire, you pulled Mrs. Leatherman over because you thought she possibly had some heroin, correct?

A: Yes.

Transcript Preliminary Hearing, page 8, lines 14-15

26. Q: You have testified that you thought she possibly had some heroin on her because Mr. Wilkey called 911 and reported that she asked him if he knew where she could purchase some tar heroin, correct?

A: Yes.

Transcript Preliminary Hearing, page 7 lines 1-3

27. Q: That’s what you told the members of the grand jury on July 28, 2006, isn’t it?

A: Yes.

Transcript Grand Jury, page 1, lines 17-23

28. Q: The grand jury is a group of citizens who decide whether to indict a suspect whom a law enforcement officer, such as yourself, has arrested for a felony crime, right?

A: Yes.

29. Q: The grand jury decides whether there is probable cause, or reasonable grounds to believe that a suspect has committed a felony crime, correct?

A: Yes.

30. Q: You would agree with me that it is extremely important for a witness testifying before the grand jury to tell the truth, isn’t it?

A: Yes

31. Q: You promised to tell the truth, the whole truth, and nothing but the truth when you testified, didn’t you?

A: Yes.

32. And that is the same promise that you made to this court and this jury today, isn’t it?

A: Yes.

33. Q: Mr. Wilkey told the 911 operator that Mrs. Leatherman had a conversation with his neighbor in the neighbor’s yard in which she “mentioned something about tar heroin and all that stuff,” isn’t that correct?

A: Yes.

Transcript 911 Call, page 2, lines 8-9

34. Mr. Wilkey did not tell the 911 Operator that Mrs. Leatherman asked him if he knew where she could purchase some heroin, did he?

A: No he didn’t.

35. Q: And the 911 Dispatcher did not tell you that Mr. Wilkey had reported that Mrs. Leatherman had asked him if he knew where she could purchase some heroin, did he?

A: No, he didn’t.

Transcript of Dispatcher Tape, page 1. This transcript was first made available by the prosecution during the trial. I did not have it or include a reference to it in my proposed cross. Nevertheless, I included this question because I believed the dispatcher never would have said what the deputy claimed he said in view of what the 911 caller had said. I also knew we could request and obtain a copy of the dispatcher tape and transcribe it before the deputy testified. Both the 911 call and the 911 dispatch could have been played to complete the impeachment.

36. Q: Despite promising to tell the truth to the grand jury, you did not tell the truth when you told the grand jury that Mr. Wilkey called 911 and reported that she asked him where she could buy heroin, correct?

A: Yes.

37. Q: You also told the grand jury under oath that Mrs. Leatherman was “very unsteady on her feet,” when she got out of her vehicle after you stopped her, didn’t you?

A: Yes.

Transcript Grand Jury, page 3, lines 6-7

38. Q: That was a lie too, wasn’t it?

A: Yes.

39. Q: Lying under oath to a grand jury is a felony called perjury that is punishable by up to 5 years in prison, isn’t it?

A: Yes.

Author’s Note: If the deputy said he did not know that what he did was perjury, the lawyer could simply hand him the statute and have him read it out loud. I did not put this in the document that I prepared for Chris McNeill because any lawyer should know this.

This is called playing hardball. I designed this part of the cross to provoke the judge into interrupting and advising the deputy of his Fifth Amendment right to remain silent and refuse to answer on the ground that his answer might have incriminated him. An honest judge also would have offered to recess the trial long enough for the deputy to consult with a lawyer and decide whether to continue answering questions.

At this point, an honorable prosecutor would have, in effect, tossed a white handkerchief over counsel table into the middle of the courtroom as a symbolic gesture of surrender.

None of this happened, however, because Chris McNeill refused to do the cross because, as he put it, “the deputy was a nice young man and the jury would have been offended,” if he used my proposed cross examination.

But, let us continue. Now that we have established that the deputy is a perjurer, let’s take him all the way down. Until tomorrow, Court will be in recess.

To be continued . . .

Cross posted from my law blog.


Occupy: What To Do If You Are Subpoenaed To Testify Before A Federal Grand Jury

October 23, 2011


Lawyers, Guns, and Money by Warren Zevon

Author’s Note: I published this at Firedoglake/MyFDL on October 6, 2010 just after people, who had protested at the Republican National Convention in Minneapolis in 2008, were subpoenaed to testify before a federal grand jury in Chicago investigating them to determine if they had provided material support to terrorists and/or a terrorist group.

I am reposting it here a little over a year later because I suspect it may be useful information to some of our readers, especially those in the Occupy Everywhere movement.

I was a criminal defense lawyer for 30 years and a law professor for 3 years. I represented many clients over the years in federal court, so I have a lot of experience representing people subpoenaed to appear before a grand jury.

State grand juries generally work the same way but are significantly less often used aggressively as federal prosecutors typically use them.

Namaste Read the rest of this entry »


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