Monday, October 20, 2008

Trial Techniques: Exposing Police Testilying

I am representing a nice kid charged with Burglary 2d degree in Queens County. I am trying this case with a good friend John Scarpa who is a former Queens County Assistant District Attorney and a really talented trial Defense Criminal Trial Lawyer.

The case is crazy. I understand DA Brown's office's interest in trying the case because on paper, it should be a slam dunk... Except the defendants are innocent and once a trial lawyer looked at this mess, they should have seen the problems with it.

Queens North Borough Blast unit is an elite burglary unit in Northern Queens. In investigating a bunch of burglaries against Chinese families, the Blast unit began to focus on one fellow, Mario, who was driving a rented car and tooling around Northern Queens. It was interesting to the Blast guys that 1. Mario lives in Staten Island and has no seeming connection to Northern Queens County, and 2. His car license plate was seen driving from the scene of a prior burglary, but no one saw who went in or who was in Mario's car. Mario by the way, walks with a cane and is disabled.

The police obtained a warrant to put a GPS on Mario's car. The BLAST unit started following Mario around and were assigning 10-25 detectives on him at any one time. You can imagine the money they spent. As things were growing more expensive, the unit was starting to worry that all the money spent was going for naught. Then they got what they thought was a break, the truck they put the GPS on was on the move and back in motion in northern Queens county. That's where things stop working out so well...

According to the indictment and paper work, the cops follow the car, one of their team members get out and follow the car passengers to a home and WATCH THEM ENTER IT AND AFTER 20 MINUTES LEAVE THROUGH A SIDE WINDOW. That's right, he allegedly watched 3 guys break into a home, did nothing to help the people inside and waited for the three to leave. I know it seems crazy but that was the testimony.

Now after watching the three leave, he loses sight of them, and another cop (the one whose ass is on the line for authorizing all the money) allegedly sees the three cross a 4 lane street and go to a car that is the one with the GPS on it. He and other cars follow the car and stop it 2 blocks from the burglary. When they stop the car, one guy jumps out and runs. The others are arrested and their are burglar's tools in the car including a radio that can pick up police signals from the local precinct. Oh yeah, it is on cause the cops can hear themselves on the radio receiver...

Now it would normally seem open and shut, except our clients tell us, they never burgled a home, weren't ever in the car, and were there to meet Mario and obtain Marijuana they left in his vehicle the night before when they celebrated his and my client's birthday.

Also of interest to me, was that Mario and the guy who ran, both pled guilty but our clients didn't even think about it. Not even after the judge promised to sentence them to the minimum time. Another thing that bothered me. There was NO physical evidence...None!!

No fingerprints, no DNA matches, No proceeds from the burglary. During the trial of the case, we even learned that not one of the people who testified to stopping the car even saw my client or Scarpa's client in the car!!

Now here is a lesson for young attorneys. If the case seems to strong to be possible, it is not possible... I cannot believe the level of Police testlying that I have witnessed in this trial.

Here is the thing. In order to bring this thing off, the whole Blast team needed to support one and other. At first it seemed impossible to me that the whole team would be able to lie. In fact, they couldn't do it convincingly (well the jury is still out so at least they didn't lie convincingly enough to get the jury to convict quickly)The thing that they did do is they all told the only lie they could all remember.

Lesson to the new trial lawyer: When confronted with a case with a number of people telling the "same story" the devil is in the details. If the discovery is devoid of details, you know they are lying. All you have to do, is break the big lie down to the details and the inconsistencies will jump out like a catfish out of a river on a warm Louisiana day.

In our case, the lie it turns out, is that we saw a burglary and these guys did it. At first it seemed really open and shut, but when we started to look at facts to support that scenario, they were non-existent.

For example, We asked the alleged eyewitness what he saw, he claimed to have seen all three of these guys get out of the car, and then he raced his car around the block got out of his car, race through backyards and set himself up in a dark driveway some 60 feet away, and see through a thicket of bushes and big pine trees the three guys still outside. He saw them take a security grate down and proceed to step up on the grate and go through a side window that was not visible through the trees. He describes 4 Pine trees that failed to grow symetrically so they were less dense on the side on which he had to look. He also testified that he saw the car stay on the same side of the street and that the car never crossed a thoroughfare and that he couldn't see who got in the car or where they sat. Hmmm.

The Lead cop, the guy who was running this shindig testified he too was 60 feet away. It was his job to watch the truck and that the truck not only was across the 4 lane thoroughfare, but that the driver turned it around and was facing the opposite direction from where the house that was burgled was so that the alleged burglars had to cross two streets and he saw them do that... Except he too didn't see who got in the car, nor did he see where they sat or did he see their faces, or if they were carrying anything.

Now there were Photos. Pretty damning photos. All the police testified that the crime scene investigation team took the photos. All the police except the crime scene investigator. He said he didn't take any pictures at the scene, and that the pictures he did take he had staged to represent the items he was photographing in a better light. Hmmm. He didn't preserve the crime scene? Not even with a preliminary photo? That is very strange.

Our intrepid crime scene investigator also testified that none of the officers involved in the arrest ordered fingerprints of the crime scene nor did they they order hats and gloves found in the alleged getaway car checked for DNA that might link the items to people in the SUV.

Finally, if the officer who says he saw everything and everybody, did in fact see everything and everybody, why was it that after stopping the car, and capturing the alleged four occupants inside of it, did the police bring in helicopters with search lights and dogs to search and stop 3 other Hispanic men and why did the police not produce the stop and frisk reports for these men? Could it be that they may have fit the description of the men who burgled the house more closely than the men I represent?? Oh one other thing, if I were watching the burglars, I would broadcast a description of them to the other cops on the case... The eyewitness officer says he did. No one on the backup team said they heard it. NO ONE.

If these were the only inconsistencies they would be enough to raise a doubt in my mind, but there were more!!! For example, forget not going into the house to see if anyone was harmed in there. The police couldn't find the house for 45 minutes after the alleged burglary. How do you lose a crime scene???
Also the Prosecutor never brought a witness in who could give an exact description of what was stolen. One witness on the night of the alleged burglary said fifteen hundred ($1500)Dollars was taken. She was available but not called to the stand. Her mother-in-law was however called and she could not state how much was taken in toto. She said she thought she was missing Three Hundred ($300)Dollars, but she never in three years asked her daughter-in-law how much she and her husband were missing. NEVER.

If these guys took something, where was it. They didn't find it on them and they didn't find it in the house or in the truck or around the truck. Hmmmm.

I could go on, to the next witness, a police Sargent who swore that the whole thing took place in the light of day, and that the only person he saw exit the vehicle came from the back seat of the vehicle (which makes more sense than the other testimony which says the guy got out of the front seat but ran toward the back of the SUV toward the cops.) He also testified that the police involved only used radio transmissions and never used their private cellphones to transmit information as that would be a violation of the patrol guide (the others all said that cell calls were the way they communicated.)

Well planned cross, focused on the little facts that would make the big lie true, have left this jury with a lot to think about. In prep John Scarpa and I thought through each and everything a person would have to observe to make the main theory of the governments case true. We then dismantled the case missing observation by missing observation. We also caught a few breaks along the way, but for the most part, we made those happen with well timed and well planned questions which we usually wouldn't ask (because we didn't know the answer) but did ask because the potential risk of a "bad answer" was little in exchange for the shot that the police officer would have to agree with our proposition expressed in our question.

In all, again when you see a case that is supposed to be open and shut, it rarely is. Look at it from all sides and see what is missing and what could be fabricated. Look for facts that would have to be true to support the main story, but could not possibly be true or at least could not be perceived. Then plan plan plan a cross-examination that rattles and gets the witness off guard, and do not give the witness wiggle room nor should you ask the "one question too many" that will allow a dying witness a new life.

I will let you know what the jury thought.
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