Tag Archives: trial

Deedy and Jury Deliberation: And the Prediction

Deedy and Jury Deliberation: And the Prediction

Jury deliberation in the Deedy case is entering its fourth full day, so what does that mean? The answer: absolutely nothing. The only thing it means is everybody who told you that this was an obvious case, that it’s a slam-dunk, that either Deedy is going to prison or the defense is obviously going to win, they are all wrong.

The First Five Minutes in the Jury Room

Often, juries work like this: They first go in and take a few minutes to an hour for everybody get comfortable. While they’ve been together for a month, and spoken about life and TV and the Warriors, they still haven’t spoken about the only thing that has brought them all together, the case. The first reaction is always testing the waters, not pissing the other jurors off. They are willing to give soft noncommittal directed suggestions of what they think is probably the right outcome. And while they are willing to say which direction they are leaning, very rarely, very rarely do they immediately assert one side is completely correct. That is, unless it is obvious that one side is completely correct.

What is interesting about the flow of this case is the way the general public, as the first testimony came out, said “oh wow guaranteed he’s guilty. How do you get drunk and then need to pull a gun during a fistfight? Until four days later, and all of a sudden, starting with the emergency room doctor Deedy wasn’t even drunk.  Then you get to the Security Guard, who all but canonized Deedy. And once Deedy testified credibly, it seemed to be universal that people were were just waiting for the “not guilty” verdict.

Anybody who told you that this will be a slam dunk-quick not guilty, all of those people were wrong.

Reporting on Jury Trials

Reporting on a Jury trial is naturally deficient. News can report what witnesses say, but it is impossible to report what juries believe. A newspaper can report the facts, but it cannot report on the credibility of them. Did the witness testify honestly or horribly? TV News can show you a six-second blurb, but credibility often turns on one mistake, one look, or one change in emotion. For that reason we who follow along the newspapers can read what people say happened, but we can never know the credibility of the story.

For Example

Remember in high school when you asked a friend why she started vicious rumors about you? She swore she never did. She told you who really did it,  the place and date, and the situation and who was there. You heard everything she said, but you didn’t believe a word. A newspaper would report what was said, but the only thing that is important is what was believed. Clearly, that cannot be reported accurately.

Long Deliberations

So what we are left with when a jury is out a minimum of three or more days, no matter how much evidence is accepted, is at least two people disagree about the outcome of what the evidence is. I don’t care how much evidence has been brought into a case, or how many days or how many experts or how many eyewitnesses exist. Juries may spend a day going over evidence just to be conscientious, but more likely they’ll decide quickly. But no one is being conscientious for three days when everyone agrees, a verdict that takes this long people are discussing what evidence actually came out. There are at least two different sides and people want to discuss what happened in that McDonald’s.

Will the Deedy Trial be a Hung Jury

The interesting thing about hung juries as there’s often no jury instruction set says okay to have a hung jury. There’s no jury instruction that says if you can’t reach a conclusion let us know, and the judge will let you go home and make everyone try again. Juries figure this out for themselves when they just can’t come to a conclusion. Is that what is happening in this case?

Is a hung jury something that benefits in the prosecution or defense. I posit in case like this a hung jury would benefit prosecution, and the reason why is to do another trial of this magnitude, Deedy would probably have to pay his lawyers as well as experts an additional fee. What that means is sometimes you can’t afford the same lawyer, so you get a cheaper lawyer for the second go around. In addition often you have to use the experts transcript, instead of the experts themselves. What that means is the next jury can’t hear the expert himself, or factor in the expert’s credibility on the stand.

Another important thing to factor in is, have there been any jury communications.

Law

The Ten Commandments

Facts and Law in Jury deliberations

Jury communications are often not reported until later, because they are discussed in the back. But it is always interesting when jury communications get sent. It is the only method, after selection, juries can communicate with the court and the lawyers. Now, rarely are there jury communications about facts. For example, rarely will juries ask, “what happened, was it A or B”, and if they do, the judge will admonish them to look to their collective memory to decide.

On the other hand if the question is a question of law, ie “Is it okay for Defendant to defend himself IF ______?” That is a much more common jury communication. And this is a question of the application of facts to law.

Remember, juries have two duties, the first is to determine “What happened”, the second is to determine “Is what happened illegal as described by the law the judge has presented to us”.  Juries often do not disagree too heavily about the “What happened”. They heard the same evidence, they saw the same “tells” from the witnesses, and if one person is confused

Generally the way it breaks down is this, they won’t hang over what happened, they WILL hang over whether what happened meets the law. Put another way, they’ll all agree whether Deedy shot first, said “I’m going to kill you”, or kicked Elderts. But, if they hang, they’ll disagree on whether (for example) the kick is what triggered the fight, or Elderts grabbing for the gun is what triggered the need for self-defense.

 

Lord-a Mercy

Miss Cleo

 

Deedy Prediction

My prediction, we’ll get a Not Guilty verdict before noon. If the jury goes past 2:00 pm, the jury will be hung. And it will all be done today.

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Zimmerman and society and the future

Zimmerman and society and the future

Zimmerman and where we go from here (or hopefully – don’t)

We’re unhappy with the verdict. We wanted a verdict that closed our nation’s cultural chasm and let families, American families, let their children walk the streets safely at night. We didn’t get that.

We didn’t get that because it is entirely too much to ask the jury system to produce.

Here we’ll discuss a few changes people are clamoring for, and at the end I’ll ask for you to submit yours to discuss in the future.

United_states_supreme_court_building

There’s talk about the system being broken. Something’s wrong with the system and there needs to be a change. I want to address that for a minute because I that is very, very dangerous talk. There’s an old saying in the law that “good cases make bad law”. (“Good” here meaning big or interesting or juicy to a lawyer.) What this saying means is high profile or emotionally charged cases cause people to induce changes in the law that would affect that one particular, peculiar case the way it happened. In many of my other posts I’ve been resistant to law changes. Mainly because these law changes don’t consider the other one thousand, ten thousand, or one million other cases for whom the law was designed, for whom the law was working correctly.

Remember the “We’d rather have ten guilty people go free than one innocent person go to jail?” We all agree that fundamental bedrock of our judicial system when we’re the innocent person, and despise that saying when the guilty person is someone we abhor.

HINT: Not the right answer

There’s three things I could’ve gone wrong in this case three. Three moving parts that always get looked at when something like this happens.

    1. The judicial system or the court: was the court unfair in this case?
    2. The police: the police, or for that matter the prosecutor, do such a poor job that they were negligent in their duties and that caused a guilty man to go free?
    3. The law: is the law in this case so unfair that it needs to be changed?

One by one: I don’t think anyone is suggesting the court itself in this case was unfair. If anything the court was hard on the defense. That’s not a bad thing, if courts are generally hard on the defense, it’s in the nature of the work. A defense attorney is supposed to ask for more than he is supposed to get and the judge is supposed to tell them “no”. This case in particular the judge has been commended as to her adhesion to the law.

What about the police? Did the police do something wrong? Let me put my biases on the table: The police are always always ALWAYS my favorite scapegoat when I have a trial. The police didn’t investigate something, or look at something, or turn over that rock, or if they did, they shouldn’t have turned over that rock. And then I get turnt up. There are some suggestion that the police chief was fired soon after Zimmerman was not arrested in this case. I see all that as a distraction.

That only leaves #3, the law.

What’re we going to do about the law?

Answer: “I don’t know”.

Racial impact of Stand Your Ground law

Laws are going to change because of this. The infamous “stand your ground” law is sure to be looked at with a fine tooth comb. That law itself is not the worst thing in the world.  Basically it says you are not “required” to retreat from someone attacking you, that you may defend yourself. (Hawaii is considered a “stand your ground” state for all except deadly force. In Hawaii you can only use deadly force if you are unable to retreat, among other conditions.) There’s some discussion of “Stand your ground” laws being racist in application.  I can’t find fault with that study.

I’m betting money there are going to be a rash of new “failure to follow the lawful order of a 911 operator”. The problem with those being, that opens a can of worms with liability for the 911 operators being properly trained. They are not psychic, and are often encouraged not to tell you what to do in their training. It would also limit the number of people we would have working at the 911 call center. 911 should operate as a clearinghouse to get police and ambulance to where they need to be. It shouldn’t be a helpline.

The third option I’ve heard is that people want to change the burden of the self-defense statute. Currently only Ohio has Self-defense as an affirmative defense.  What that means is, the burden of proof (see my last post for a graphical representation) is no longer borne by the Prosecutor, but that a Defendant would have to say, “Yes, I did it but…”  Let’s understand what an affirmative defense is: at its very definition, its burden-shifting. Remember our fifth amendment, that no person “shall be compelled in any criminal case to be a witness against himself”, an affirmative defense turns that upside down. No one shall be compelled against themselves, “unless the government thinks you did it, now prove otherwise” is no where in the constitution and shouldn’t be written in there now. If the government can’t prove you guilty with all the powers of the police, the FBI, Homeland Security, and now PRISM, should we really make it easier for them?

Marcus, answer my question: What should happen?

If you guessed an increase in a call for gun laws, you are correct. The chance if it working is none. There’s no chance that stricter gun laws are happening after this if it didn’t happen after Sandy Hook. In fact, I wouldn’t be surprised if this doesn’t cause more people to buy guns.

Because it’s not safe out there.

Trayvon Martin may still be alive if he owned a gun.

Of course, he would probably be in prison.

Which begs the question, do you think the outcome would be different if the races were reversed? Let’s ask Matthew McConaughey what he thinks (start at exactly 4 minutes in):

I’m interested to find out what my readers think is the proper “fix” of the law. What law would you add or change to, well, to keep more people alive? And keep the right people alive, both of which are the goals of the law. Answer below, answer on twitter @landsberglaw, or go to the contact us and answer anonymously. Would love to hear your thoughts!

 

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Zimmerman as a trial explained

Zimmerman as a trial explained

I don’t think I was shocked by the verdict. Usually, by the end of opening statements experienced attorneys can predict, with reasonable certainty, the outcome of the trial. If you are heavily emotionally involved with the Zimmerman case, this article is not for you.  But I’ve been asked so many times what happened, that I would be wrong if I didn’t discuss, at least from a trial-work and rhetorical point of view what happened, so here you go (click more):

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Deedy surveillance video — Honolulu Trial

Deedy surveillance video -- Honolulu Trial

A quick update: late yesterday the Star advertiser published the two videos that the defense and the prosecution I wanted to put in the evidence on the Christopher Deedy case. Both of these videos are linked below. Watch on your own. After you watch the videos please read on to see what I think about them. And then, let me know if my analysis is crazy, or close to correct:

Hawaii News Now – KGMB and KHNL

 

Hawaii News Now – KGMB and KHNL

Deedy’s surveillance video changed my mind.

I don’t for any reason think this video exonerates Deedy. Yes, at one point he is on his back, but that’s not when the confrontation starts. The issue here is about the beginning of the confrontation. Does Deedy start or exacerbate the trouble in this case? Because if he did, he probably can’t claim self-defense. Put another way, was it legally allowed or him to do so? Watching this video I don’t think the answer is certain I definitely don’t think this is a slamdunk quote no”.

Another way to put it, “but for” Deedy getting involved, would someone die or be substantially injured here? That’s not exactly the standard, but that’s the common sense close version.

Deedy is not allowed to use deadly force if he precipitates the necessity of deadly force. The question for the jury is whether Deedy exacerbated the fight to that level disproportionately. On the other hand if Elderts reactions to what was going on was unreasonable, and it precipitated the deadly force,  then it may be that Deedy’s in the clear. This video doesn’t clear Deedy for me.

To me part of the problem in this video is the fact that while Deedy was supposedly  acting as a police officer, a female who he came to McDonald’s with is standing between him and Elderts. What that means is the female does not think he’s acting as a police officer!  If she thought he was acting as a police officer she wouldn’t be involved. She’d be in the back, letting him handle what’s going on. But she doesn’t let him handle what’s going on. She’s trying to hold him back. That means his own friend believes he is not in control of his own person enough to make the correct decision. His own friend doesn’t think he is in a state  to act as a police agent.

At this point the final evidence really comes down to Michel Perrine. Perrine is the guy who Elderts was purportedly bullying before Deedy got involved. So the question becomes: how bad was the bullying. If Elderts is needling Parrine, no way Deedy gets to come over. If Elderts is really scaring Perrine, who is really scared for his own safety, actual physical safety, then Deedy may be legally justified in the shot.

Very glad I am not a member of the jury in this case. No matter what, no one wins.


Christopher Deedy, George Zimmerman, and Opening Statement Strategy

Christopher Deedy, George Zimmerman, and Opening Statement Strategy

Today the trial of Christopher Deedy started with their opening statements. To listen to one side, he was a law enforcement officer protecting an innocent. To believe the other, he was a drunk haole initiating and escalating a confrontation. Luckily today I was able to watch most of the opening statements of both the Prosecution and the Defense. The purpose of today’s blog is not to regurgitate their arguments or decide who is correct, I’ll leave that to other outlets. The purpose of this short entry on my website is to talk about why they Prosecution or Defense chose to couch their arguments in certain ways.

I want to make clear from the outset, if you’re related to either side or invested in either side winning, this article is NOT for you. It is not meant to be a critique of the merits of the case or about who is correct. It’s meant to explain to someone not knee deep in trial work why an experienced attorney would argue things a certain way.

That being said, as always, let’s begin with a story: (click more for the rest)

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Bishop Street Address — Hawaii Lawyer

Playing the law like a harpsichord since 2004

Eagle-eyed observers have seen the address on the sidebar has been updated.  Yes, the new physical location of the Landsberg Law Office has opened!  It is a soft open: we’ll slowly be making the house a home, but during that time, we’re celebrating!

It’s been a long time looking for just the right office.  We’ve looked at more than one, some we were ready to settle on. But:

This one’s perfect.

Come check it out.  Now taking appointments!

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Recommendation Hawaii Lawyer — Lawyers recommend Marcus Landsberg

Lawyer Referrals Hawaii, Recommended Hawaii lawyers
SO recently I’ve been engrossed in a jury trial (we won!) and now I’m turning my attention to a CPS custody case, and I don’t normally want to “tweet” my own horn.
But today my twitter tweeped and I checked it and I saw this recommendation from Hawaii State Representative Della Au Belatti, I definitely wanted to put it up here and let everyone who follows my blog know.  It’s very easy to know who is currently sitting on top of the attorney mountain, but it’s not everyday that you see one attorney publicly declare another attorney is a future “leader in the profession”.
And being that Representative Au Belatti is a woman of great foresight, there’s a very good probability she’s right!
Big Teeze Recommends lawyer Marcus Landsberg, Big Teeze, 808 HoesAnother person who got on twitter to support my private attorney life is my old friend Big Teeze.  You all know Big Teeze from as a veteran of Hawaii Radio, currently on 93.1 Da Pa’ina Radio station Afternoon drive time.
I cannot guarantee everything he says, but Big Teeze has always had a way of saying the truth by speaking his mind.  I always appreciate the love from my Bredren, from the Capitol, to the courthouse.
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Honolulu Liquor Commission Battle for Wang Chung’s

“When life throws lemons at you, let Marcus throw them back”.  – Danny Chang, Wang Chung’s after an the Honolulu Liquor Commission.

Honolulu Liquor commission, Gay, gay bar, Landsberg, Landsberg Law Office, Criminal Defense, Gay lawyer, hawaiiLandsberg Law Office is a proud member of the Waikiki community.  And we do what we can to support other members of our community.  It is with great pleasure that I was able to help a tiny bar, Wang Chung’s, get the Liquor Commission to reconsider a previous ruling.  Before the case came to me, the Liquor Commission handed down a ruling that would have effectively shuttered this local watering hole.

In a very intense hearing, we got the Liquor Commission to reconsider that order, allowing the bar to stay open for all of its patrons.

These are the moments I dreamed of in Law School.

Read it in Danny’s Own words: Wang Chung’s Review of Landsberg Law Office

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Tobacco Litigation, District Court

Tobacco Litigation, District Court


Some attorneys win upwards of a Billion dollars in their Tobacco Litigation.  I won a hug from a crying woman.

Christi was 26 and adorable.  Worked hard for her family of five.  They live in the part of town where you can afford to have a house that sleeps five.  Plus grandparents.  Plus Uncles and Aunts.  Plus cousins. Plus cousins’ cousins.  And Christi was born in the Philipines.  Everyday Christi would catch the bus from her side of the island into Waikiki to work in the tourist industry.  Not a great job, but a real one.  One that helped support her family.

And Christi was in love.

Christi had a boyfriend in The Philippines.  A  boyfriend who she loved.  A boyfriend who proposed and was now a Fiance.  A boyfriend who she had worked with to file paperwork to get a Fiance visa so he could come to Hawaii to get married.  Paperwork that was now in Limbo, because Christi had one more thing:  a criminal case.

See, on her last trip her grandmother gave her gifts, omiyage, to bring back to the extended family in Hawaii.  One gift for uncle, one for mom, one for dad. One for enough other people to add up to ten.  Each gift? A pack of Filipino Marlboro cigarettes.  Did I say a pack? I meant a carton. Each one wrapped in twice with a nametag attached.  Love, Grandma.

Grandma never though this would get Christi stopped at the border coming in.

And Christi told the Customs agent exactly what she had, like seven cartons of cigarettes.   And the customs agent told her she’s not allowed to take so many into the U.S. And Christi said okay.  And then the customs agent gave her one carton back.  The Carton for Uncle, mom was not going to receive her cigarettes.  And Christi thought it was over.

And the the Attorney General’s office called.  And they told her “you better go get an attorney, because if you don’t we’ll arrest, you, put you in jail, and then you’ll have to put up thousands of dollars to bail out.” So Christi went to three different attorneys, two told her to plead out.  But one or two referred her to me.  See, the other attorneys didn’t realize why Christi was refusing, under any circumstances, to plead guilty.

Christi, was in love.

Any guilty plea could destroy her Visa application for her boyfriend.  Actually, as I remember it, she had to finish her green card first.  I came in after this paperwork was already in process.  But no one could guarantee that, if Christi pled guilty, even to no jail, a deferral, a minor fine, whatever, that her fiance could still move to America.  She got a lot of “ifs”, “maybes” and, “mmmmm”s.  Those don’t make a Defendant feel safe.  And she could care less about a conviction, the love of her life was the only thing she could think about.

And did I mention, this was a felony. The Attorney General of the State of Hawaii’s stance is that declaring to the customs agent that you have more than one carton of cigarettes to bring into the country, and then surrendering them to the customs agent is punishable by up to five years in jail.  According to the Attorney General’s office.

My job was to make the judge think otherwise.

Attorney General, Hawaii, strategy, criminal defense, win

Strategy

So why did the State take such a hard line on this?  Remember that billion dollar amount I spoke about above.  It turns out, the settlement that Cigarette companies worked out with each individual state included a clause that said the companies ONLY have to pay if the State enforces certain laws.  Smelling a vast revenue stream, States could only roll over to pass these laws fast enough.  Basically, the cigarette companies dictated the Laws states would pass to protect these cigarette companies against outside “illegal” cigarettes from entering the market.

By paying this money, Marlboro and the rest insured their oligopoly.  In every state.

And oh yeah, the Cigarette companies have oversight.  They can demand a statistics on which laws were passed, and how many people were prosecuted under these laws.  And the state was running in fear, that without any prosecutions, the cigarette companies would choose to not pay the money, embroiling the state in further legal costs.   If I’m not mistaken this was already beginning in other states.  So everybody who brought five or more cartons in, and surrended them at the customs counter (where my understanding is, they are supposed to) was charged by the State.  Everyone.

And so far, everyone had pled guilty, gotten a deferral.  Hawaii got their prosecution statistics.  And then came Christi.  And she brought me.

Landsberg Law Office, Knock out, hawaii, legal fight, cigarette defense caseOur plan was this: avoid trial to preserve the Deferral option as long as possible.  And then institute a one-two punch.  This is a common technique I use.  But it’s sort of the opposite of the jab-haymaker that is the standard approach.  I start with the arguments that sound worse and hurt more.

In this case, prosecutorial misconduct, improper motives, fiduciary interest. All the things I could get to show that the State simply should not charge these people.  I think we even threw in pre-emption and jurisdiction, as Federal law should govern anything up to and including the customs table.  If the judge agrees with all this, it can open an entire can of worms for the Attorney General and these laws at all.  Because these laws are locally instituted nationally, it could make national news.  And the judge would be saying the State cannot earn the massive amount of money from the settlement agreement.

I don’t believe judges decide solely based on extraneous issues, the way certain attorneys do.  But really, how could they not pay attention to it.

I went deep into the the history of the cigarette laws, present evidence of the lobbying.  The yearly report of the State committee whose whole job it is to keep track of what happens with these funds. The fact that these funds actually provide the money to pay the salary of this attorney general.

Said another way, if these funds went away, this prosecutor would not have a job.  She better prosecute these laws and hope the Cigarette companies don’t freeze the funds.

That was the “one”, then came the “two”.  The two was a deminimis motion. A   standard motion in drug cases, but not one often used in this context.  Basically that she had such a low amount of cigarettes, it wasn’t a big deal.  Also the fact that she brought them into the country/state for such a short amount of time. Again, not a big deal.

The one that stupefied the judge is that, on her way out of customs, the customs agent goes “Hey, wait. You get to keep one! Here, take this one!”  How could bringing ten cartons be an issue, if ten people could bring in ten cartons.  He was a little incredulous.

But this was the safe way out for everybody.  The judge could deny my first motion to dismiss as the rantings of a lunatic attorney, but insulate against an appeal by granted the same result, a dismissal, for the safer, cleaner reason of just “it was so minor, nevah mattah.  Small kine”.

So of course that’s what happened…

And Christi got her green card. And she got her visa. And she got married.

And her Grandmother sends back cookies as gifts instead!


A conversation I had. Another conversation I had.

men, talking, prosecutors, dirty, supervisor, no funBefore trial the Prosecutor’s supervisor walked into the room. Everyone knows the prosecuting deputy was new.  I knew her to be a good attorney, but by simply being in the room the supervisor was going to make the new prosecutor more nervous, I asked the supervisor “What, you come to see me in trial?”

“I came to make sure you don’t try to pull anything.”

I thought we were still joking, “Why, you couldn’t when we went to trial.” Smile, smirk.

“You just got lucky.” Was her honest reply.

It’s never the facts of the case. It’s never the quality of the argument or the work. It’s just “luck”.  And they’re the ones with the jailhouse keys.  They’re the ones charged to protect you when you’re in danger.

She stayed for about half of her young prosecutor’s case in chief, and then left. Never saying a word, never making a suggestion. Never being helpful at all. Shook the prosecutor up so much, one witness took the time of a 6 person trial.
______________________________________

A dentist once explained to me how to do a root canal. How they take the top of the tooth, go in, get all the “gunk” out, fill it back up with “filler” and then put a cap on top so it looks good as new.  I went home and performed my own root canal.  It didn’t go so well.

I give a lot of free advice on the phone. A lot. That’s just the way I am. Generally people are thankful and want to hire me. I say a lot of “What I’ll try and do is this…. What we’ll work on together is that….”

Well, one particular seemed relatively easy, and it was referred from a friend, so I gave the girl a discounted rate. But she wanted to sleep on it. Turns out, overnight she called the attorney on the other side and tried to work out an agreement based on what she gleaned from our conversation. When I called her up and asked if I needed to be in court with her, she said she wanted to do it herself “I’m just that kind of girl.”

I’ll never forget that.

Anytime a person calls me and starts with “Don’t worry, I know I’ll win” I get nervous.

This is because the case becomes a “no-win” for me.  If they won, they were going to win anyway.  If they lose, it is my fault.  And often it portrays an attitude that just doesn’t play in front of a judge or jury.

As you predicted,  her case didn’t go so well.

I went to the dentist and asked him to fix my root canal.  I told him, “I already did half the work, you don’t even have to do as much, I already took the tooth off and got rid of most of the inside”.  He didn’t give me half-price, he charged me eight times as much.

She called me back after the hearing and asked if she could hire me. I quoted her eight times the price.  There was a fundamental misunderstanding of how the system works.

You may feel like you’re getting a root canal, it may even be sore for a week or more.  But we’re trying to stop infection here.  You’re allowed to do it yourself, but sometimes, when stakes is high, you might want someone in your corner.  Someone who’s been there before.

What kind of girl are you?

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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.......

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