To The Jury

Now the jury is finally selected and let’s go to trial. Speaking of the jury, I was not particularly happy with a couple of guys, but what was remaining to be selected looked worse. I should mention again what I am looking for in a juror, or basically, who don’t I want? I don’t want folks who lean to the conservative side. Of course, no one related or friendly with cops or prosecutors. Or probation or parole. I don’t like engineers or teachers, as I find them, as a whole, just too much “law and order.”  I don’t want people who have sat on previous juries. I believe it’s better to have a jury not close age-wise, as they may be harder on the defendant, such as younger people may be harder on another young person and vice versa. Of course, you don’t always get what you want, so the bottom line is I like a jury composed of people I feel comfortable with.

Now the question of when to I make my opening statement in the Lisa P case, right after the DA makes his opening or after he rests his case and I present our side of the story? I generally advise others to make your opening right after the DA to diffuse his/her presentation and let the jury know there are two sides to the matter. But, in the present case, I decided to wait and catch the DA by surprise, thinking it may work better that way. I will tell you, the reader, now that our defense was going to be Lisa was there at Jennifer’s condo to ask her to try to end the relationship with her husband, she was attacked by Jennifer and defended herself by biting Jennifer, but did not stab or kill Jennifer or harm the child. The likely culprit was Jim P, and the proof would be based on time lines and other evidence I would later present. The bottom line was the murder by suffocation of the 5 month old illegitimate child. A jury might forgive a wife victimized by a cheating husband, but never the murder of an infant.

So the DA’s case was presented, setting out the deaths and their causes, then connecting the defendant with the crimes through the DNA on Jennifer’s arm and the statement to Jim P at the station admitting the biting, but not the smothering of the child.

Now it is our turn, and I then made my opening, setting out the defense evidence. I had brought in a great pathologist, the former medical examiner from Dallas County, who was also a professor at The University of Texas, to explain the timing of the bite mark based on the number of white cells in the arm wound which start immediately at the inception of the bite and the increase and decrease of the cells based on an hourly and daily healing process in an attempt to pinpoint exactly when the bite was administered, hopefully several days before infliction of the stab wounds on Jennifer and the suffocation of the child. I have a time line showing Jim P flying from Taiwan to Japan and then to the US, placing him at the location of the murders exactly at the time or close to the time of the killings. There was a lot of other stuff, but basically I tried to pin the murder on Jim P who would have motivation to eliminate the victims as much as the accused. I had a chart prepared by my daughter, Julia, who worked with the pathologist to illustrate how the white cells would gather at various stages of the wound and its healing. They were so good, the pathologist asked to keep the charts to use as exhibits for his medical students.

I really caught the DA flatfooted. He wanted added time to prepare his cross examination and the Judge gave it to him saying, “We thought you were going to present a mental defense”. The term “we” was not lost on me, and I remember that comment to this day “We!” Who the devil is we? The DA got his request, but his cross was not effective, as he had not prepared for the type of defense presented.

Well, the case went on, and, after argument, the jury was instructed on the law and went out to deliberate and after several days, they  could not agree to a verdict and the judge declared a mistrial which means we have to start over again. But it was a start in the right direction.

The case was assigned to Judge Jack Ryan, a personal friend of mine, but Jack never let our friendship interfere with his rulings and conduct of a case. Now Jack was not a typical judge. He grew up on New York City’s West Side, known as “Hell’s Kitchen,” a very rough part of the city. Jack is powerfully-built and around 6’3″, with a flash Irish temper, but he gets over it just as fast. He joined the US Marine Corps, where he rose to “Gunny” Sergeant, the highest non-commissioned officer’s rank, and then retired. Later, he became a bouncer in a local Orange County drinking establishment as he was a very big and tough guy. He decided to go back to school, was admitted to USC’s law school, graduated, passed the California Bar Association’s admission and certification exam, became a Deputy DA in Orange County, and rose through the ranks to the highest grade in the DA’s Office, assigned to the most difficult and complex cases. Then, he ran for judge and won, ending up in charge as presiding judge of the criminal calendar, settling and assigning cases, and to this day, he is still active after his retirement as an assigned sitting judge in one of the Riverside County’s courts and is a teacher to new judges who must attend judges’ school before they get a permanent assignment. The course and his writing are directed to the complex sentencing procedures that were created by the State Legislature. However, he still speaks with his New York West End accent full of “dees,” “dose” and “dems.” He has a heart of gold. When his next door neighbors were killed in a car accident, Jack and his wife, JoAnne, immediately adopted the surviving children and raised them as their own. I will eventually get to the substance of The Orange County Bench and Bar on later blogs, as I have been struggling on how to explain how the system worked though appearances of conflict may appear, but I can guarantee you there was no conflict.

So, now trial #2. Same evidence, but now the DA was better prepared, The DA brought in the County Medical examiner to contradict the defense pathologist and, frankly, I thought I was able to destroy him with inconsistencies, plus pound on the fact that the medical examiners office had somehow misplaced the vial of excised bite mark that could have fixed the time of bite versus the time of death.With losing the pretrial ruling regarding the accused’s statement to her husband, the case was not as strong for the defense as the first trial. The DA did in his closing argument what I feared in the first trial; he showed that it took the child about 5 to 6 minutes to die by suffocation and, in his closing, just stood there in front of the jury for 5 minutes of silence with the child’s autopsy picture hanging on the exhibit board, and I knew it was not looking good and it wasn’t. The jury convicted Lisa of Murder 2nd of Jennifer and murder 1st of the child and she was sentenced to life without parole. But that didn’t end the case.

I searched for the best appellate lawyer I could find, and after interviewing several, I selected, or should say, recommended Chuck Sevilla of San Diego. probably the very best, who took the case on appeal. Guess what? Based on my work, the appeals court reversed the conviction based on a finding that the statement Lisa made to her husband was improperly admitted, as she had asked for an attorney and, under the Miranda case, her Constitutional rights were violated, as the court found as I had urged: Jim P was acting as a police agent when he was instructed to talk to Lisa and get her to admit the stabbing.

So now the case was back for yet another trial. We had a disagreement regarding my fees for a third trial, so they hired John Barnett, a very good defense lawyer and they had a third trial which ended up like the first, with a mistrial, as the jury could not agree, so finally, a deal was worked out; Lisa admitted the killings in exchange for a deal, namely a plea to manslaughter of Jennifer and Kevin,  and she was sentenced to time served, about 8 years, and was then released to return to Taiwan.

I can’t write about the third trial or the final result, as I as not part of it, but Chuck Sevilla, the appellate lawyer, personally told me after it was all over, Lisa should thank me over and over again for saving her years and years of prison. Let me make it clear, I get no satisfaction defending accused, but I really enjoy the combat of minds in the criminal trial system.

Marshall