Wednesday, April 22, 2009

Team court & prosecutrix v. me - trial fun VIII

Okay, we are working with the surprise extraneous complainant (c/w2) - who has known about the allegations against my client forever - she is a cousin to the original complainant and my client's niece. So, she is talking about her "outcry" which was VERY recent.

(She is about 20 at the time & supposedly the stuff happened when she was about 4 or 5 so the judge is going to let in her hearsay. At this point, I am fine because I love impeaching every witness with another - they cannot remember what they last said. But here is The Court's take on changing of stories - outside the presence of the jury on voir dire because I am trying to have potential witnesses who are in the courtroom sworn & removed. The Court wants to question ME about what I might question them about - before I have even heard all of what C/W2 might say about what she told them. I am really trying to do as she is instructing me in my questioning, but it is hard to understand what she wants.)

The Court: I'm sorry, the purpose of the hearing now is to determine whether or not these people are witnesses. We're getting a little far field from that; aren't we? [Don't you like how she tries to include me in her conspiracy.]

ME: I don't know, Judge, because that's not what she said the first time. (She had already testified to her purported outcry, and of course now she was saying something different after listening to the judge essentially coach what she would & would not let in. I have to admit - this was a great trial for impeaching because there were so many lies flying around that seriously, I couldn't keep up. In fact, in summation, I couldn't possibly list 1/2 of them I caught this bunch of - uh, people - in.)

The Court: You keep saying that people are changing their story. And to be honest,(hmm - what was it Randy Schaffer said when someone uses this phrase . . .) from what I heard, I didn't hear her change anything. It was the way it comes out. (Okay - first time sisters are in the room, 2nd time they aren't - I thought that was a change but apparently . . . .) It's for the jury to decide. (EXACTLY - so why is The Court trying to prevent me from simply having the potential witnesses sworn & out of the courtroom. It IS for the jury to HEAR and to decide - only they aren't getting to HEAR much of anything from my side.) If they want to construe that as a change in testimony, they may. But every time someone says something in a different way than they said it earlier, doesn't mean they changed their testimony. (UH - really?!) It just means they said it a different way. And a lot of it has to do with how the questions are phrased and how it comes out. (Yep - blame me for being good at cross - I'll accept that.)

Are you still seeking to have these people witnesses since they weren't present during the outcry? I don't see how they could be witnesses. They weren't present during the alleged improper contact. And they weren't present during the outcry. So how could they be witnesses? Whatever they said or did on another day is irrelevant to this case?

(First, as you can see P need not say anything because The Court is making all the arguments for her - even though she supposedly is hearing this stuff for the first time. Further, she is wanting me to tell the witness as well as P what I have on this girl & about what witnesses will say if they tell the truth. It is known as giving the prosecutor a little preview, only I really don't want to do it. I don't try my cases against untrustworthy people that way. If I have something to share & feel I can based on who I am dealing with, I do it pre-trial - to avoid trial - not during trial to help them prepare!)

ME: She's also testified that -- may we approach so I don't have to tell them? (I recognized the coaching . . . I wasn't going to help them. Heck, I couldn't believe The Court was actually getting involved at this point. I think maybe P had taken a restroom break. Obviously she wasn't needed. I'm kidding . . .)

The Court: Okay. (I'm sure this was said with disgust.)

ME: There is going to be testimony from my witnesses that this girl has spent the night at their house since then (her purported assault), with her sisters, at my client's house, since these allegations occurred. (I hesitate because I don't want to continue, but The Court says nothing, so I start with more:) And in addition, at the time, based on her testimony, when she says this happened. . .

The Court interrupts: In that case, the sisters were potential witnesses, if they were in the house at the time this happened. Who stood up awhile ago? Stand up again, please. (And she swears them in. See, I have made enough record at this point that she knows that continuing to allow these potential witnesses to sit in the court is just the icing on the cake. I'm already sure that I'm just practicing in trying this case. It is going to be a not guilty, a hung jury, or a reversal after a conviction. One can very rarely say that but I've not shared half of what went on, and already I've shared enough for a reversal.)

Remember - I had NO notice of the extraneous until a couple of days before she testifies. So, I remind the court that these witnesses have been in the courtroom throughout the trial. P concedes she has seen them. The Court to P: They were in the bed when he came and took her out (c/w2); correct? P: That's correct. (which means P knew all along that they were witnesses!!!!)

ME: In addition, when she (P) first told the Court about the allegations, I advised the Court that these two witnesses would be potential witnesses and asked to have them excluded. And the Court told me to wait until we decided if the extraneouses were brought in.

(See I did my job but The Court just couldn't let me try my case & P KNEW - because she had talked to c/w2 & KNEW the allegations, & she let those witnesses watch the trial in violation of what is right. C/w2 refused to talk to me. Most judges would have simply sworn them in & excluded them from the court in an abundance of caution - which was the right thing to do.)

The Court: (in response to me pointing out my prior request) That should have been brought up again this morning. (SO, she is BLAMING ME! Unbelieveable. By quote this morning, we had already had days of testimony these witnesses had heard. This is unbelieveable. P KNEW what c/w2 was going to say, and that she was going to make these girls purported witnesses, and she said nothing when I asked to exclude them. The Court says nothing to P. NOTHING!)

That's it for today, folks. Remember - all of this is in just ONE trial. Do you really think that the quote justice system is just when this is going on? P who deserves no number certainly didn't care about truth and fairness, and I don't know where the judge went because the person I was dealing with was apparently sitting second to P. (so said the jury - in so many words. More on that later.)

Have a great Earth Day! and remember to adopt your pets, don't buy them.


  1. Interesting view from the other side...... I thought if you were a witness or possible witness the "rule" was invoked and you were sent in the hall to watch the skyline out the end windows......

  2. You are if "the rule" is invoked, which is was. The judge was trying to make me tell her (& P) what I expected the witnesses to say so P could prepare. Unless the judge suspects that you are excluding someone just to do so (such as a rape complainant's mother or something), then it is not for the court to interfere like this. Just another example of why it Team Court & Prosecutrix v. ME. I was fighting both of them!

    Thanks for the comments!

  3. Love your blog. This is where new defense attorneys (like myself) should come for useful info if they can't afford to sit in court all day and watch. Thanks and keep blogging!

  4. I appreciate the comments & hope it helps. If you know me, any time you'd like to borrow this record to (which is my copy) to get a flavor of a bad trial, let me know. It is like reading a horror story! HA! But seriously, I'm not blogging the entire thing & I know it gets a bit confusing. I just don't want to bore the non-lawyers. I do appreciate the readers very much!


I appreciate comments but you must include your name to be posted. If you want to e-mail just me, do so - don't comment here. Any posting or comments made here are not intended to be legal advice. If you have a situation that does or may involve criminal law, seek the advice of an attorney via telephone or in-person meeting. I am not responsible for the contents of comments.