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)
Start at the beginning or in the middle of the action
In the close of 1989 or beginning of 1990 I went to see my hero at the Shrine Auditorium. Stan Lee created every superhero I ever loved, and had the same jovial delivery as my father and his friends when they spoke to each other. It was a room full of, I’ll estimate 400 people, but I was smaller then and Stan Lee’s persona filled up the entire hall. That day he asked the room a question, about a potential Spider-Man movie, “We can’t decide how it should begin, should it go chronologically, from Peter Parker being a nerd and moving forward through time, or, like Batman (the Michael Keaton version, that had just hit huge at the box office) should it start in the middle with Spider-Man webbing up some criminals and zipping through the skyline?”
The crowd overwhelmingly chose the former, but the reason for the story, and my thesis for this article:
- When it comes to Opening Statements, the Prosecution unfolds like that 2005 Spider-Man movie.
- The Defense trains to open like Batman.
- And this Deedy trial is a perfect example of who these two storytelling patterns play out.
Prosecution of the Christopher Deedy case
Jan Futa is the lead Prosecutor on this case. Honestly, I’m not completely familiar with her. I do know that she was a prosecutor for awhile, left the office, and came back to help out Keith Kaneshiro when he got re-elected. Jan seems overly capable and I’m sure after I write this a dozen prosecutors will write me saying “How did you not know she handled ______ ?!?!“
Prosecutors seem to be trained to start with the macro-picture and then drill down to what happened. First they talk about the area and the set up of the scene. Then they start building up the cast of characters who are going to take the stage. And only after all these things are in place, does a Prosecutor (and of course I’m speaking generally here) start explaining how these characters fit in the environment and interacted with each other. This is exactly how the Tobey Maguire Spider-Man move played out.
Defense of the Christopher Deedy case
Honestly, I’m more familiar with Brook Hart. A very famous defense attorney in the State of Hawaii, you may
remember him from the Tim Chapman Open Lewdness acquittal, and the Dog Chapman extradition to Mexico circus. In less reality-show related experience, he started the Office of the Public Defender here. Mr. Hart is one of, if not the most experienced defense attorneys in the state of Hawaii. The strategy he used in his opening statement is exactly how the Public Defender’s design their yearly training. The technique is simple, Start exactly in the middle of the action, grab the jury’s attention, and quickly expand on only the facts that add to your case.
This is like the first scene of the movie, when the thug turns to Michael Keaton in the cape and cowl and says “Who are you?”.
“I’m the Batman!”.
As an aside, this comparison is ironic as Batman’s motives are much more comparable to the Prosecutor’s office, to strike fear into the hearts of criminals. Spider-Man, meanwhile, was always considered the scourge of the city, while attempting to do what he felt was right, even though law enforcement rarely agreed with him. Spider-Man’s “with great power comes great responsibility” is a powerful subtext in every defense argument that the police have all the power to investigate, they should’ve done just a little bit more.
Zimmerman’s knock-knock joke
That’s the general strategies. Let’s talk about specific disagreements. Ms. Futa spent a fair bit of time discussing the video of the incident and how it might not be completely reliable. Mr. Hart is going to be in the enviable position, at least based on what the openings sound like, to accuse the prosecutor of making the the old Groucho Marx argument, “Who’re you going to believe, me or your lying eyes?”
Let me make an aside here about humor in a jury trial, because with Don West and the Zimmerman Trial last week, there’s something that court-watchers should be aware of: humor in front of a jury is great, if done correctly. Generally a joke is out of line, but pointing out the situational absurdity of the opposing council’s argument is potentially the greatest weapon a trial attorney has. I’ve argued with a number of respected attorneys exactly this in relation to the Zimmerman Trial, the “Knock-Knock” joke was not horrible in itself, it was horribly delivered. The problem was not in the content, but in the context. A better speaker could’ve delivered that joke better.
I’m not suggesting I would ever deliver it. I’m just saying the joke itself was not the problem, it was the delivery.
But going back to the subject of humor in the context of a jury trial, let’s echo another great 80‘s movie. Basically humor is the Crane kick of the trial lawyer, there’s a thousand ways it can go wrong but, “if done right no can defense.” If a jury will laugh with you and cry with you, they’ll agree with you.
The Deedy Decision will rely on the following
Here is a short list of three things that I think will decide the case:
The videotape: Whatever’s clear on the security camera videotape is going to be the whole of the case. A potential problem for the defense is that they promised certain things the jury will want to see on the tape. The defense could very well lose the case if they overpromise and underdeliver on the video. Interestingly, Mr. Hart did not spend an extended amount of time talking about it. Ms. Futa would not have expended so much time discredited the video in opening for me to believe it does not work against the State’s case. I will be interested to find that the videotape shows Christopher Deedy actually showing the badge, as that is the part of the narration of the defense that rings false to me. It sounds like what the video does is actually rotate between any number of viewpoints and the fear is, of course, that during the most important part is missing because of it.
Mr. Brian: I couldn’t quite catch the name it sounded like his last name is Brian. The defense spent the bulk of their opening, outside of the time speaking about the narration of the event, making an argument that the deceased was actually harassing a man who went to McDonald’s and was bothering no one. (I think they said was the last name was Brian I couldn’t quite hear the pronunciation.) It is undisputed that Mr. Brian was right there in the middle of the action when it all started. How Mr. Brian describes the escalation of the events is probably the second most important piece of evidence, besides the video, of what actually happened.
Finally the most important thing is probably going to be Mr. Elderts (the deceased) friends. The reason I say this because however he arrived, they’re the people who are going to say how Mr. Elderts was acting and what Mr. Deedy did in response to those actions. Clearly Mr. Elderts had a conversation somewhere with someone in McDonald’s. It will be interesting to see what the friends say, agree to, or how their stories match up and differ.
One interesting thing about the case is the intersection between law enforcement the mainland Hawaii and of course local people. Double interesting as this is happening during the Zimmerman Trial where race is basically the focus of the trial. All the attorneys in the Deedy Trial have gone out of their way to say they don’t believe race will be a factor. I wouldn’t be so quick to ignore how this may affect race relations in Hawaii. Of course, how this would affect race relations is the exact wrong way to decide a case.
The difference between Zimmerman and Deedy are, of course, night and day. In Zimmerman the Prosecution’s biggest issue is the fact that they have no credible witnesses about what actually happened during that confrontation. No witnesses mean no jurors know what happened. Deedy is the exact opposite. Ms. Futa’s biggest problem as least appears to be there is an actual videotape of the incident. A video means the whole jury knows what happens, they can witness it for themselves.
These are just some assorted notes thrown together about Deedy, Zimmerman, and ironically Batman and Spider-Man. As always I’m definitely available for any questions about other trial tactics in this trial, or discussions about why Mr. Hart or Ms. Futa may’ve engaged in any other tactics or arguments you found interesting and look forward to your engagement here, or on twitter at @LandsbergLaw.