It's in the Prep

There is something that is lost in being a prosecutor versus my friends in the private sector. We are both extremely busy, but I am busy on hundreds of cases while they are busy on a few at a time. They are able to thoroughly research, analyze, and prepare an issue or a case for a large chunk of time before the hearing or trial.

Me? My cases need to get prepped, but all my other files need attention in addition to the new cases coming into the queue every day. It becomes overwhelming most of the time. This week I have pre-trial hearings with 5 defendants spanning six different crime dates. The witnesses needed for the hearings alone are already numbered in the 20s (compare this to the most witnesses I've ever called at a hearing before this being 4). The issues range from the 4th Amendment search and seizure, emergency doctrine, consent, plain view, probable cause, flight, Sixth Amendment right to counsel, Fifth Amendment right to remain silent, identification procedures, search warrants, and probably some others sprinkled in for good measure.

Which is why I've put a stop to all my other work over the last few weeks. My boss has diverted new cases away and I've only been able to work on emergencies on other files. It was simply impossible to prepare the hearing and worry about other cases. There are boxes of discovery to turn over, witnesses to prep, photographs to take, research to be done, and sleep to be had at some point. Alas, I am only one man (although I'm leaning on our summer intern pretty hard. Will this scare him from the life of an ADA?)

Think about me this week as I again duel with 5 defense attorneys. If I survive, I'm taking a vacation in August. Who knows, maybe I'll need to take the whole month.

Standing Your Ground

Here is a link to a previous post by one of our guest law student contributors about the nuts and bolts of the stand your ground laws. Check it out and see what you think in the wake of the Zimmerman verdict.

Charging or Blocking

The Zimmerman/Martin case points out why I dislike speaking to jurors after a verdict, which I will discuss more of next week.

Trial by Media

Did you know that there is a murder trial going on in Florida? 

I'm willing to bet you did. I'm willing to bet that you know a lot about the trial even if you've never watched a second of testimony. I'm willing to bet you even have an opinion.

I usually flip back and forth between the Today Show and CNN in the morning while I get ready for work (usually flipping the Today show when a Justin Bieber story or the like appears). Both shows, like every newscast, include updates about the George Zimmerman trial. Experts appear and opine about the day's events and the testimony.

It's the conclusions that slay me. Everyone purports to know what was going on inside Zimmerman's mind, Martin's mind, or the attorneys' minds (if they even have one - seriously a knock-knock joke). CNN even has the scales of justice weighed evenly on a screen and after the morning's discussion and dissection of the case, Chris Cuomo puts his hand on the screen and shows us all which side the evidence is favoring.

And this is how we form our opinions. Not on the facts or the evidence. It's the experts who tell us where the case is headed or what something means, which influences our own opinions. There will be outrage over the verdict no matter what happens and I'm confident to say the most outraged will probably know nothing more than the opinions fed to them by the major news networks. The only opinions that matter in this case is that of the jurors who have been selected and tasked with that responsibility.

In a smaller community like mine, most violent criminal trials turn into news stories. I never read anything about it during the case. No attorney wants a Monday morning quarterback. We barely want to answer our colleagues questions about the case and we cringe at their "helpful" suggestions of what we can do better. None of it matters because it is in the hands of the jury.

Once the Zimmerman verdict is handed down, speculation will help stoke the fire of the outrage because the verdict will be assailed no matter what it is. Let's just hope that the verdict does not lead to any more violence. The death of one boy should not be the instigation for the death of more.

What Happens When a Witness Lies

First, your insides squeeze together so tightly that you think they might explode. Second, sweat immediately begins to drip between your shoulder blades like a river. Third, you try not to react to any of this in front of the jury.

After the initial shock and dreams of running up to the witness on the stand and screaming in their face, shouting, “why would you do this,” a few things happen, depending on if it is your witness or your opponent’s.

The easy one is when your opponent’s witness lies on the stand. When that happens, you put your pen down on, let a small smile crest your lips, and prepare to slam a truck through the opening the witness created.

This post is about happens when your witness lies. Maybe even your star witness (Many of these posts are created in response to actual events so you can only imagine what happened during my trial last week).

If the witness lies when I’m asking questions, I move on and circle back to the topic. I’m sure my pace and composure breaks slightly, but the main goal is to keep it as professional and ordinary as possible. Never let the jury see that an answer was unexpected. The reason that I leave the topic and come back is for two reasons: 1) I want to see if it was just a mistake and give the witness a chance to correct it, and 2) I don’t want the witness to dig themselves a bigger hole.

After I ask the questions again and am confident the witness is lying as opposed to mistaken, I’ll ask the court for a recess so we can discuss legal issues outside the jury. Once the jury’s gone, I inform the court of what happened. Attorneys cannot suborn perjured testimony and prosecutor’s cannot allow perjured testimony to go uncorrected. Plus, the witness has now transformed himself into a defendant and he needs his rights protected. The court then will assign an attorney to the witness.

If the witness recants the perjured testimony, he must do so on the witness stand in front of the jury and his credibility is probably just below a pedophile who takes the stand. If the witness refuses to recant, I must state on the record in front of the jury that I know the testimony to be false and then the witness is basically cannon fodder for the defense attorney. All I get to do is sit back and writhe silently in my chair as a hope of conviction usually drifts away.

There are many reasons witnesses will lie on the stand:

-Protect themselves from retribution for testimony
-Protect the defendant
-They actually lied the first time and are now telling the truth
-They don't believe they will get in trouble.

What does it all boil down to? I become a witness in the perjury case against the former witness. Turns out I'm a very cooperative witness.