Tag Archives: Jury trial

Parental Discipline — The defense to Abuse

abuse, parental discipline, acquit, lawyer, win, hawaii, Kamehameha

Not for hitting children.

“What high school did you go to?” I asked him in front of the jury.

“Kam”

This defendant didn’t go to Kamehameha, I knew that.  No one from Kamehameha calls it “Kam”, they’re trained to call the school by the full name.  He’s lying to the jury, I told him he’s not allowed to do that.  If I catch him saying something I clearly know is untrue, I think I have to report him.

Pause. Jaw drop. Look at him sternly.

“bull”

Campbell High School.  Beat. Jury laugh.  Everyone fell for it. He smiles.

What’s he thinking, *I* tell the jokes here.  But now he has a taste for it…

__________________________________

He was a large Hawaiian man.  Many kids of his own.  His new wife brought a few of their own to their blended family.  He worked during the day and she worked at night, and while they rarely had time together, they found time to make sure people were always home with the kids.  They lived on old family land and the kids had enough space to run and play.  Homework always got done first.  No one was getting straight 5′s on AP tests, but no one was getting arrested before they were 18, at least as far as my defendant was concerned.

So when his 14 year old son (who could easily passed for 21) got questioned by the police at the local mom & pop market for stealing, that wasn’t allowed.  Now compound that by hiding in from the father.  Now mix that up with the father finding out by going down to the store and getting thrown out, “Get out of here! Your son steals ‘Girlie Mags’ from my store! Your money is no good here.” And then the boy lies when confronted with the facts:

Not only did he steal, but he stole pornography.  (Which was probably as much the reason for the secret from dad.)

Someone’s getting hit.

So when the student was sent to the school nurse for limping, he didn’t mention

1. Theft.

2. Pornography.

3. Lying.

4. Talking back.

All he mentioned was:

“My father beat me with a bamboo stick”.  He didn’t mention the father told him the purpose of the stick was to limit the strength of the giant ham hocks at the end of the Defendant’s arms.    He didn’t mention that Defendant was aiming for this boy’s rear end, but he kept moving, causing other bruises.

________________________________

“How many kids do you have”.

“Nine, or ten, I’m not sure.”

An uncomfortable laugh, now we’re on the wrong side of the jury.  He breaks the first rule of testimony: “Don’t answer more than you have to.”  The more you answer, the more ammunition they have. Get in, say the facts, say the feelings, get out.  If there’s a second rule its “don’t be flippant in front of a jury”.  This is about as serious as a situation gets.  There’s a jail sentence hanging over your heard.

I suppose I should say here, there’s an exception to the second rule:  I have a full presentation on “The use of Humor for the Lizard Brain: Comedy in Courtrooms” that is beyond this post here.  And really only for attorneys.  The purposeful sublimation of perceived Court customs (but never court rules) is just about the second most important tool we have to make jurors listen.

But that one line flipped the momentum of the trial from us to the prosecutor.  And the Prosecutor seized on it in closing:

This is a man who wants you to think he cares about his children.  He doesn’t even know how many he has!

Hard to come back from that.  Good thing the jury never heard about his prior Abuse convictions on two of these ten children.  Explainable, but better left unsaid.

__________________________________________

Now, even if the boy had mentioned WHY he got punished,  School’s often have mandatory reporting. Police still get called, still make arrests.  Prosecutors are given the duty to dismiss these cases.  Often that duty is taken away by their supervisors.  Often these cases just aren’t dismissed.  Overcharging is the number one reason cases go to trial. Overcharging and over arguing for punishment.

They should. They just don’t.

So we go before the jury, and we explain. Everything.  Tell them everything.  Lay bare the the home life and the discipline plan of these nine or ten kids.  Then the judge reads the law and they all go to the jury room to deliberate.

But they walk past something that I couldn’t plan or predict.

Outside, on the bench the jurors have to pass on their way to the jury deliberation room, the jurors walk past the two boys who testified.  They’re taking a nap.  The larger boy is using a rolled up jacket for a pillow, the smaller boy is using the larger boy’s lap.

A picture of boys raised correctly.

And no matter who wins on points or pontification, spilling guts or speechifying before the jury.  The jury seeing that these kids are raised to love and protect each other.  Raised to do the right thing when their father isn’t there.  The jury realized this was real honest discipline meant to guide the children to do right by each other, themselves, and their family.  Not for simplistic, sadistic reasons.

And you can’t beat that with a stick.  Not Guilty.  (And I don’t think he ever came back.)

Leave a comment

The Sympathetic Witness — Assault in Palolo

supermarket, kids, assault, punch, stealing from palolo“Oh my God! Are you okay?”  The prosecutor asked, with entirely more emotion than should be allowed.

It’s just a punch. I could take it, I was more worried about falling down…

“Falling down, why?” As if the everyone in the jury didn’t see the man walk in on his cane.

Well It’s my leg.  Ever since the accident,  I have to use this cane and my balance isn’t very good.

“Your balance isn’t very good.” The prosecutor was engaging in the time honored technique of “repeating the last thing the witness said for maximum effect”.  I do this now ironically.   “So after –”

I also have a brain tumor.

Now the witness wanted to engage in the time honored technique of volunteering information.  This robbery had nothing to do with a brain tumor.  It was about three Samoan men trying to steal beer at a liquor store at 9:00 in the morning.  That’s all.  And the neighbor grabs one by the shoulder, he got hit.

See, the liquor store was right next to Palolo Housing.  So it’s not the first time they got hit like this.  I talked to a cop later who told me he can see it happen, he knows where people line up to stand to grab a six-pack and dig out. Just take off.

Well during this case the man testifying grabbed a Samoan men (not carrying beer by his shoulder) and the Samoan turned around and punched him in the face, the man didn’t fall down. And they ran away.

And while we could have gone with no identification: come on, cross-racial identification after a 15 second conflict, a highly suggestive ID and no other connection to the scene.  Not to mention you throw a mango any direction in Palolo and you hit a Samoan (and then run as fast as you possibly can).

My client wanted to be honest. He wanted to testify.  He wanted to tell the jury that this guy grabbed him so he pulled away.  When the man wouldn’t let go, he slapped the man once. This made the cane wielding man the man let go, but not fall down.  My client then ran, he knows what happens when a Samoan man from the housing slaps a haole.   Plus, he had to find somewhere else to buy milk and eggs, so his girlfriend’s mom could make pancakes for the family.

It never would have been an issue except they wanted pancakes.

Well, the jury went out, and they were still deliberating, when I saw something not one of them ever got to see:

Guns, drugs, fights, Court security, fighting with securityThe next morning, out in front of the metal detectors/security station on the first floor is the same man who had a cane the day before.  No cane, yelling, carrying on, screaming about money the prosecutors owe him, and jumping around in front of the security officers.  Security officers who kept telling him to leave and not harass them.

He had a bum leg and a brain tumor in front of the jury.  Could hardly walk to the witness stand.  Outside the courtroom he was fit as a fiddle.

And the jury never got to see this behavior, all they were allowed to see was the tragic story presented on the witness stand.

But they saw right through it, and my defendant walked out the front door.  I sometimes wonder if he ever got his short stack.


Talking out of turn


  • Ma’am, isn’t it true you had been drinking that day. (The complaining witness was kind of on my side at this point.)

Yes.

  • And in fact, you were a little tipsy?

Yes.

  • A little, intoxicated.

Yes.

  • Maybe highly intoxicated.  (And I heard a murmur from the jury box.)

Yes.

  • In fact you were sloshed. (And I looked at the juror in the front row.  A local woman, maybe early forties.  Working mother if I’m not mistaken, and louder I heard her whisper a particular word.)

Yes.

  • In fact you were kind of drunk. (And this woman says the same word louder. Now you’re not really supposed to talk as a juror.  It’s not like everyone gets to join in. Some attorneys go their whole career without a juror jumping in and trying to help them in their job.)

Yes.

  • In fact you were blitzed. (And now I swear she’s almost yelling the word.  It’s a little uncomfortable. I’m looking at the prosecutor and bailiff, but maybe because I’m standing about a foot and a half away, and it’s SO silent otherwise,  maybe that’s why it resonates in my mind.)

Yes.

Now, here’s where my memory plays tricks on me.  I know for a fact what I remember the word being. But I also know for a fact it absolutely was not that word, even though I cannot imagine what the word actually was.  When I try to remember what it actually was, this is the word I remember, but logically looking back it couldn’t have been this remembered word.  So with that forewarning, let me tell you my memory tells me the word she had been saying was:

“Sh__faced!”

So with my best Perry Mason finger-point I ask the witness:

  • Isn’t it true you to borrow a word (I turn and look at the juror.  We exchange smiles) were Sh__tfaced!!!!

And the witness, friendly and having seen all of this, leans forward in her witness chair, and entirely too loud into the microphone answers :

“OH YEAH!”

Leave a comment

Laying foundation In Trial – A Cute story about trial work

Laying foundation In Trial - A Cute story about trial work

Bullcoming’s talk about the Gas Chromatograph Spectrometer reminded me of one of my favorite trials and how lawyers have to lay foundation in trials:

It was a three co-defendant case.  The police came to serve a search warrant on an old family property deep in a valley.  Like most warrants, they came on the property at dawn and busted in the main house.  My defendant and his wife came out of a small lean-to that looked thrown together.  Inside the lean-to was a denim pencil case. Inside the pencil case was some drugs.  They cooperated with the police in every way.  He was a 56 year old local Portuguese gentlemen who had lived the last few years in the back of his truck.  White hair, craggy skin, and hands that have worked on so many engines that they are permanently stained with oil.

When we got to the Drug Expert in this case, she was an attractive local Japanese-Hawaiian. Maybe mid to late-20s. The Prosecutor laid the foundation like foundation should be laid in trial, methodically.  Step by step he built up the credibility of the Drug Expert, the infallibility of her procedures, and the reliability of her results.  The next attorney up attacked the foundation of the the Drug Expert but she was prepared.  She had answered these questions more than once, she had trained how to answer these questions, and the jury was loving her.  She had done everything right in their eyes.  The testimony using unpronounceable words had become monotonous.  Not monotonous like the jury would tune out and miss evidence, monotonous like the jury would tune out and assume she gave all the evidence she needed to.

And I was up next, time to throw a curve ball.

I changed topics from the Drug Testing itself, to the larger procedures of how things get tested.

  • Who orders the tests.
  • How these tests get requested.
  • Where the items go to get tested.
  • Could the pencil case could have been tested for different types of evidence.
  • To the best of your knowledge, was this pencil case tested for ANY type of evidence?

Then I switched tack. Time for the curve ball.

  • I want you to look at this pencil case.
  • Is there a drawing or a marking on it?
  • Oh, it’s an embroidery.
  • And are you familiar with this character on the  embroidery.
  • Is this a character that you have seen before.

The purpose is to make the witness only answer “yes” to questions.  This is called a “yes ladder”.  A skilled attorney can make a witness climb a yes ladder until he admits to just about anything.  In practice I’ve had witnesses admit to crimes I know they hadn’t done, just because they feel the pressure to say yes.  I was catching objections now, for relevance, but the questions were foundational and I think the judge wanted to know what I was doing.  Curiosity killed the cat, so to speak.

  • So you saw this character as a kid?
  • You owned items featuring this character?
  • Your friends owned items featuring this character?
  • You bought or had your friends or family buy items featuring this character on it.
  • You saw ads or posters featuring this character, when you were growing up.
  • And in your life you’ve experienced, owning, buying, seeing, or talking about this character, right?

This whole time, the Drug Expert was looking at the pencil case, but the jury had yet to see the case itself.  Proper foundation had been laid and it had been admitted into evidence, but in order to save time the Prosecutor had not “published” it (meaning shown it) before the jury, so when I asked the judge permission to publish the pencil case to the jury, it was the first time the jury got a chance to see which cute, familiar character I was talking about.  I held the pencil case in my hand, smiling, as I showed the jury.   I confirmed with the Drug Expert my next question:

  • And this character is known to you as “Hello Kitty”? Yes.

As the jury smiled at me, happy I stopped talking about the incessant drug testing issues, I balanced the pencil case on the beam in front of the jury box where they all could see.  I moved around the courtroom and stood behind my Defendant, put my hands on his shoulders, and asked the money question in my loudest accusatory courtroom voice:

  • Isn’t it true, based on your training and experience, including your life experience, that “Hello Kitty” is not marketed to 56 year old Portuguese males!!!

The court broke out in laughter so loud, the prosecutor was laughing as he objected.  The judge was laughing as she sustained, and I was grinning ear-to-ear as I withdrew my question.  On this, the most solemn of occasions, the 12 stone faces in the jury box fell out of their  chairs laughing their fool heads off.

This wasn’t the type of man who had a Hello Kitty pencil case, let alone use it to hold his drugs.  Unless he had a very well-developed ironic sense of humor, or he was a criminal mastermind (who remained homeless), that simply wasn’t his pencil case.

Not his pencil case, not his drugs.

Although I hear Sanrio is making in-roads in the Middle-Aged Mililani Portuguese community!

1 Comment

The First Trial – Where my dogs at

The First Trial - Where my dogs at

“And where was your dog at this time?” The prosecutor asked the complaining witness, knowing that was my entire defense, “Tied up on the other side of the house.”

Then the prosecutor asked the next witness, “And was there a dog involved”      ”Oh yeah, Sally-girl was between them.”

“Huh?”

“Sally-girl was jumping up with her front paws on her, like stomach I guess, and she bit [COMPLAINANT] on the arm.”

“Are you sure?”

“Yeah, she was trying to help [COMPLAINANT] out.  Lead her away from the fight. Y’know.” And then on his own he volunteered the next part, “It was a light bite.”

Johnnie Cochran had this thing he did to Christopher Darden.  He dared Darden to put the bloody gloves on OJ Simpson in front of the jury.  Cochran knew this much: if he put the gloves on OJ, it would mean nothing when they didn’t fit.  For it to work, Darden had to present that evidence.  You still remember how that closing argument went.

“Play the 911 tape. I won’t object,” I told the prosecutor.   If the prosecutor played the tape before the jury they’ll hear what I want them to. And he did. I forget the words on the tape, but no one was listening to the words, they was a another sound, louder than words:

“Arf Arf Arf ARF ARF

ARRRRRRRRR Ar-woop Arf arf”

Then the jury heard it was undisputed that all her injuries were to her stomach, arm/elbow area, and the tops of her feet.  They heard nothing consistent with being repeatedly beaten around the head like they claimed.  This was highlighted when a very good attorney gave me very good advice I often still follow: “Act it out!”

So yes, the first defense I ever ran in front of a jury was ”The Dog did it.”

Good girl.

Leave a comment

The jury is out…


A real conversation with the judge from my first jury trial, waiting for a verdict:

“Waiting is really the hardest part,” The judge of my first jury trial told me.  The Jury had yet to send back a jury communication, and it had been hours.  Jury communications are like chicken bones to a Trial Attorney.  Juries aren’t allowed to suggest in their communications how they stand in their decision.  Jury communications are used by attorneys solely to determine how they stand in their decision.

“I just want to know what’s going on in there. What could they possibly be talking about?”

“Y’know son, have you ever had a child?” This is about five years before I married.

“No judge.”

“It’s kind of like waiting for your wife in the delivery room.  You can’t really do anything but wait and hope the baby comes out healthy.”

“That’s great judge, but there’s only one problem.”

“What’s that?”

“I’m scared the baby won’t look like me!!!”

This was a real conversation I had with a judge while waiting for my first verdict.

Leave a comment

Hawaii Criminal Defense: The Legal Blog

Issues in Hawaii Law.

Below is a collection of Articles I've written about Hawaii law.  Most are about criminal defense, Honolulu trial work, or future legal trends. Courtroom experience is probably the most common.  Others are comments on local or national law.  Hopefully there is something for you to find and enjoy.  If nothing else, you'll see the way I feel about certain issues, and the thought processes I put into legal problems we solve.

And some stories are just too funny NOT to tell.......

Recent blog posts

Contact us now:

Facebook   Message   Twitter  

Contact an Attorney Now!