Writing a blog is fun or me, and gives me something to do. Try to think ahead because someday you will be faced with the prospect that you can’t do what has consumed you for all those many years, and suddenly you are “old hat” and out of the professional loop. No more meeting your colleagues for breakfast, or drinks after work and just gossiping about those things that interest each other, preparing for court, trying cases, motions and the things that make you what you are. Get an outside hobby, or you are going to feel very much at loose ends (Just my thoughts, lots of people look forward to doing nothing, but I am not one of them.)
I won’t be blogging every day or week, so just check in and see if there is anything new.
I have been thinking lately about lawyers who are reputed to be smart but I can’t figure out why some dumb things are done by them, such as the wrong theory or question etc.
I mentioned Mel Belli on my last blog. After the Rosoto trial, Seymour Ellison, the associate that Belli sent to represent Rosoto, told me that Mel Belli had some homicide cases that needed work and wondered if I would be interested in joining their firm in San Francisco to handle the cases which were centered in San Francisco’s’ Chinatown, and I felt flattered for the opportunity, but after consulting with our presiding judge, Bill Murray, in Orange County, I was advised not to consider the position and declined. I might mention there were two incidents that sort of cemented the decision. First, I had the opportunity to observe part of a defense tactic in which Mel Belli was representing a chiropractor in LA charged with second degree felony murder. The case against Dr. Phillips was based on an interesting concept of felony murder, namely, Dr. Phillips convinced the parents of a young girl, about 6 years old, as I remember, who had developed a cancerous condition in her eyes and was receiving treatment by doctors selected by her parents, to take her out of the hospital for some other treatment for the condition, Iodine drops, which, of course, was false and her life was shortened. Though her doctors couldn’t have guaranteed success, there was no doubt that her life was shortened. Sadly, the child expired from the treatment of Iodine drops shortly after she abandoned her regular doctors. The prosecution’s theory was Dr. Phillips used a treatment that would never heal the child and received money by means of theft by false representation. There is a doctrine in law that if a death occurs as a result and in the commission of a felony, then malice is presumed and the crime is murder. If the felony is a serious one, such as robbery, child molestation, forcible rape, in which one can expect a possible death occurring, then it could be murder 1st, and if a lesser aggravated felony, then it would be murder 2nd degree, which does not call for the death penalty. Anyway, I observed the child’s mother who had testified as to how the family was talked out of staying with the present treatment and to hire and pay Dr, Phillips. Then, on cross exam, Belli, through his investigation, discovered the mother had hired a lawyer and was suing Dr. Phillips for an undisclosed amount. I might mention the complaint, I believe, was not signed by the mother. So, cross-examining by Belli, went something like this: Belli: you are here to bolster your lawsuit against Dr. Phillips? Answer: No, Mr. Belli. Belli: I have a complaint asking for damages. Did you authorize the complaint? Answer: No, Mr Belli. Belli: Well, didn’t you hire the named lawyer? Answer: Yes, Mr Belli I did. Belli: And here is the complaint. Isn’t that the lawyer you hired? Answer: Yes. Belli: And aren’t you asking for a lot of money in this complaint? (Now here comes the clincher: Answer: I have never seen this document; I did not sign it, and I told the lawyer all I wanted was the medical fees paid to Dr Phillips and that was all.) Phillips was convicted of felony murder 2nd degree based on the presumption of malice as a result of the felony: theft by false pretenses and later appealed. My observation of the jury at the time seemed to tell me the jury was not at all happy with Belli attacking the mother. The point of this is too many lawyers ask questions not knowing what the answer is going to be and often get a terrible result for their client by asking the wrong question. In the end, The State Supreme Court reversed the conviction based on a legal principal that Phillip’s fraudulent representation was a statutory misdemeanor, not a felony, so no felony murder applied. This was a 4 to 3 decision with 3 dissenters. Today, this kind of fraud cannot be the basis for felony fraud, because theft by false representation in not inherently dangerous, and the felony itself has to be such that the defendant could appreciate the risk, such as a felony DUI causing injuries in which the perpetrator would know the danger of drunk driving when he gets behind the wheel of his car after excessive drinking.
So, I don’t know the final result of the Phillips case, but you can read the opinion and dissent by Googling People v Phillips 64 Cal 2nd 574, case decided in 1966.
This axiom of trial work goes both ways. Take the O.J. Simpson case as an example. Prosecutor Darden decided to take a chance and asked OJ to try on the bloody glove found at the scene of the murder of O.J.’s wife without knowing what the result could be and gave OJ the opportunity to say to the jurors “It doesn’t fit.” (leather shrinks over time; it well could have been OJ’s, but we will never know, and OJ’s lawyer, Johnny Cochran, capitalized on that mistake in his closing argument: “if it don’t fit, you have to acquit,” and the jury did.
Also, I question the defense of Jack Ruby for the murder of Lee Harvey Oswald, the murderer of President Jack Kennedy in Dallas, Texas. Basically the defense chose a psychiatric defense that Ruby was in a sort of semi-unconscious state and unable to contemplate what he was doing, called a psycho motor fugue state and could not form intent but was acting in that state. You are going to have to show me any case that was won by that defense. I first encountered that defense in an earlier blog where I discuss the Darrell Kemp murder case where that was the defense, and it did not work for the defense then and it did not work on the Ruby case. A better defense could be to show how torn up Jack Ruby was, being a transplanted Texan, and after watching the funeral, he became so wrapped up in the murder and the disgrace to Dallas, a city he loved, he could not be himself. Would not get Ruby off, but maybe a lesser offense of manslaughter. All the prosecution had to do with the psycho motor fugue state is to cross examine the expert psychiatric witness by asking if the defendant gets a gun, goes to the location where the target is going to be, waits for the opportunity, shoots the victim and then says ” I shot the son of a bitch!” ” is that what you mean by being unaware of his acts? I did much the same in the Kemp case, stringing out all of the defendant’s conduct. Jury did not buy the defense and they shouldn’t.
Prosecutors and defense attorneys have basic rules. The DA is demanding the jury do their duty and convict the bad guy, and the defense is begging to let my poor wrongly-accused guy go. I believe to have a good chance of getting a defense verdict, it important to get the jury to like you and, if possible, also your client. When jurors are first introduced to the courtroom, and see the defendant, most believe the defendant guilty, and when told what the charges are, the presumption of innocence is a fiction and most judge that had the defendant not done something wrong, he wouldn’t be there, and they, the jurors, are there to convict. Many lawyers don’t understand that mentality and don’t know how to deal with it. On every trial, I write on my notepad at the very top, two things. First is: be nice and second: be conversational. As a prosecutor, I did the same. Jurors like professionalism in their attorneys, not bombast. The most deadly prosecutor is the one who is professional, respectful but very thorough. Every time I tried to emulate someone else’s style, I would fall flat on my face. One of the bottom lines is be yourself.
Some examples, I remember:
Al Forgette who actually went to my high school and one year ahead of me, and played tackle for the football team, ended up practicing law in Orange County. He was a big burly guy with a disposition of one of the nicest guys in the world. I watched him once selecting a jury, and he could not have been more friendly, likeable and persuasive. So, In a DUI defense case, I decided to emulate Al. I thought I was doing OK using that style, but as I was questioning the jurors I noted or felt some antagonism. So I asked the jurors if any resented my approach and a hand shot up telling me he did not like my approach. I thanked him and asked if anyone else felt that way and about a dozen more hands were raised. I looked pitifully at the judge who saved my butt by excusing the whole panel and we started over with me being me and a successful conclusion for my client. Another example is when I was a prosecutor and had a pretty good case. So Joe Bush, who I mentioned earlier as a DA colleague, had a style of letting everything out in opening argument and demanding the defense answer the unanswerable points he established with a very short closing. So I decided on what I thought was a good “slam dunk” prosecution to adopt Joe’s style to see how it worked when my usual style was a short opening covering the crime itself and the evidence supporting the proof of the case and slam home in closing the credibility of the defense and witnesses. So I did a Joe Bush opening: Strong on everything and then demanding answers from the defense. I have to say I did not lose any cases in my almost ten years as a prosecutor and I remember the details of each one. In this case the defense attorney was Manny Valenzuela, a very competent defender, who stood up and told the jury, I am not going to spend time answering all those questions; I am going to talk about the case and why my client is not guilty, leaving me with nothing to add in my closing. Verdict: “Not Guilty.” You have to be yourself and what works for you. If you try to be someone else, the jury will smell it out and give you no credibility.
There are lots more trial suggestions, but that is enough for today.
Next I will want to talk about Orange County in the 60s and up to today
Bye
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