Q:

Tom, you’ve talked about how you never know which detail a case is going to hinge on, so you have to dig up, and follow up on, a lot of details. Can you tell me about some recent cases like that?

A:

I think so. I’ve had two trials recently, where it went like that. The first one, I went to the crime scene a few times, to make my own observations, and double-check the reports. It also involved a search for the car, and I finally found the car in an impound lot. A lot of the case turned on the officer’s observations. There were 2 witnesses that were the primary witnesses for the prosecution, and then there was the police officer.

Q:

So you first read the reports, and then you go off and start looking at the evidence yourself?

A:

I go through all the reports and prior statements in detail, and see if there are any inconsistencies with the statements. I go to the scene, and see how the statements jibe with what’s actually there, I examine any other evidence that’s gathered in the case, and continue to constantly see how everything fits together. I look for any inconsistencies, or maybe embellishments, or things that just don’t make sense. I spend a lot of time examining like that.

Q:

How does an attorney get access to an impounded car?

A:

First, I contacted the DA’s office and the investigator to find out where my client’s car was located. I told them I needed to examine it to prepare for a defense. They told me where it was; they contacted the impound lot and told them I would be coming. Once I was there, I pulled out my camera and I photographed the car from a number of different angles. I looked inside, tried to recreate what the officer was describing, and then in the trial, I used some of that to suggest to the jury that it was you know, was he really able to see what he claimed he saw, and how difficult it probably was to see it. That wasn’t what turned the case, but it certainly helped.

Q:

You couldn’t have made those arguments if you hadn’t gotten out of your chair, located the evidence, and chased down the details. Does the prosecution do this too, or do they not have the time and staff to do all that footwork?

A:

That’s up to the prosecutor. Every prosecutor is different. It just depends how thoroughly they want to prepare for the case. As for me, I prepare the case assuming that the prosecution is going to do everything, so I have to be prepared to address everything that could come up. If they don’t prepare thoroughly and don’t bring certain things up, then I am well-positioned to take advantage of their lack of preparation. In this same case, there was another witness who had cooperated with the prosecution, and I made a point of going to the courthouse and attending her guilty plea. I saw for myself what kind of witness she would be in my trial, and heard the details of her plea agreement. I read through her prior statements to the police and used the inconsistencies in her statements, and the negotiation that she had made with the prosecution, and brought that all out to the jury to show that she had enormous motivation to save her own skin at the expense of my client. With that kind of motivation, her testimony could not be trusted. Then you combine that kind of motivation with certain inconsistencies: there were facts that she couldn’t recall back when the events occurred, but which she now remembers with greater clarity and detail.

That just doesn’t make sense, but when you understand that she’s been offered a pretty good deal to cooperate, it starts to explain why she may remember things better now. You have to communicate these things to a jury, to suggest that maybe the fact that she remembers things now better than she did back then isn’t because she actually remembers better, but simply that she’s motivated to testify in a certain way.

Q:

There appears to be a lot that goes on, behind the scenes, which the average person wouldn’t think of. Even if the defendant mounts their own best defense, they might not think of any of the things you just mentioned.

A:

A good defense is a combination of things. There are the actual hard work and the focus on the case; there’s going through all the reports piece by piece, digesting them, and understanding them; then, there’s knowing the procedure for getting all that in front of a jury, and for communicating it effectively, and integrating it into a theme of the case for maximum impact. For instance, in this case, I showed that this witness had made a deal with the police on the side of the road, she made a deal with the police again at the police station, she’d made a deal at the DA’s office, and now she’s effectively trying to make a deal with the jury to believe her. So, that was kind of the theme and then bringing in evidence that supported that theme, and in light of that theme, pieces of information that might not have made sense on their own started to make sense in the context of the case.

Q:

Now, you said there was a car. Had the police stopped the car to make an arrest?

A:

Yes, it was a traffic stop, and there were drugs found in the car. The arresting officer stated that he saw my client hand the other person something, and then the other person tried to hide it. The officers found it in the car, and she said that my client had given it to her, and then they cuffed my client.

Part of our defense was questioning the ability of the officer to actually see if anybody was handing anything to another person in the car. And then, in the trial, the officer made statements about what my client had said – statements he had never included in earlier reports. These were some sensational statements he said my client made, but which he had never included in the reports he had made within hours of the incident. How can you remember 7 months later what you forgot to put in a report 7 hours later?

Q:

So, in this case, your client was acquitted?

A:

He was acquitted of the felony and found guilty of a misdemeanor, and the felony he was looking at would have been 12 years in prison. It was a serious felony drug charge and then a misdemeanor charge for paraphernalia. They found that he possessed the paraphernalia, but he didn’t possess the drugs

Q:

I’m guessing in this case, was there an attempt made to come to some kind of agreement and keep the case from coming to trial?

A:

There were plea negotiations ahead of time, but there was nothing satisfactory, since everything involved prison time.