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LegalGround >> Just finished murder trial


2/5/10 3:27 PM
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Cookie Monster
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Fucking exhausted. VERY short version: Guy(client) and friend are drinking in a hunting cabin. Friend starts playing with gun. Guy tries to take gun from friend and gun goes off shooting friend in the head killing him.

State tries for 1st degree murder (essentially and execution) because of the placement of the shot (temple), clients actions afterward (flight), and meager evidence suggesting athe possiblilty of a struggle outside the cabin.

Defense theory is that it was accidental (involuntary manslaughter). There was no fight or struggle. Flight was merely client freaking the fuck out.

Verdict: Jury splits the baby so to speak and convicts of Voluntary Manslaughter.

Could have been WAYYY worse... M1, or M2, but jury finds voluntary manslaughter. Mixed emotions right now.

Fuck! I am tired, disappointed, hurt, but somewhat relieved (no murder). In my heart-of-hearts I truly believe it was an accident and nothing more. I'm pissed because I was unable to convince a jury of the same but glad client did not get hit with Murder 1 or 2.

What is going to haunt me for quite some time is this... my closing was sub-par. I have tried many cases and have always ALWAYS had outstanding closings (one of my strong suits; not trying to brag) but this one was officially the worst closing I have ever delivered. I Felt disconnected, disjointed and choppy while not conveying my theory (story) well. Maybe closings don't matter (as many experts contend) but I believe they do. I am feeling and will be haunted by the thought my lackluster closing could have made the difference between involuntary and voluntary. For now, the defense is going to rest.
2/8/10 6:03 AM
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Machine250
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 wild, what haunts you about this is that you think you failed your murderer client......hard for me to comprehend.....

it doesn't haunt you that you are helping someone get away with murder.....?

^serious question btw....


2/8/10 1:36 PM
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Fake Pie
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As he said, he believes it was an accident. If you believed that, why would you feel that he got away with anything? You would feel that he was being unjustly punished in that case.

Is it not possible that it was an accident?
2/8/10 8:03 PM
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KenTheWalrus
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I give you props. This is the exact reason why I never want to practice criminal law.

I give you much respect for putting yourself in the position where you are the lone advocate for someone's life, let alone his liberty. As some of these replies have shown, you're behind the eight ball to begin with. You may not have lived up to the level of excellence you set for yourself, but you did save your client's life. Know that if nothing else. -ken
2/9/10 8:41 AM
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Fake Pie
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turducken - lol @ "accidentally" shooting someone directly in the temple


LOL @ assuming you know everything from a couple of sentences when there was likely a few days or weeks of trial on these facts. How do you know what evidence was put forth? There was apparently enough to make the jury believe it was only voluntary manslaughter. Cookie is a smart guy, I doubt he is easily swayed by some BS... especially considering what he does for a living--he has heard it all before.
2/9/10 3:43 PM
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Cookie Monster
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Edited: 02/09/10 3:44 PM
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it doesn't haunt you that you are helping someone get away with murder.....?

^serious question btw....





Good question! The frat answer:
No, not at all. It is not my place to "judge" someone guilty or not guilty as that is the place of a jury. I am concerned only with "justice" as our legal system provides and the role I play in that system. It often is very difficult for some people to understand how someone can be a criminal defense attorney and I can understand this notion. For me it is easy as I understand the importance and the nature of my role as a criminal defense attorney (cda).

As I said before, it is not my role judge but to uphold the other side of the scales of justice. A defendant comes into any criminal case with the presumtion of innocence. That is, they are to be regarded at the outset as innocent. In order for someone to be found "guilty" in our system the state/govt. must prove "beyond a reasonable doubt" (which is a VERY high standard, btw) each of the necessary elements. If the state/govt. fails to prove each of the necessary elements "beyond a reasonable doubt" then a defendant should NOT be found guilty (which is different than being found "innocent"... just not guilty).

As a cda I am holding the state/govt to that standard. As long as everyone plays by the rules and sound/zealous representation is engaged, if the states makes their case then great... the system worked... if the state fails to meet this burden then great... the system worked. Even though the system "works" does not always mean that true justice was rendered. It just means the best justice as proven under this individual circumstance was rendered. It is my role to make sure that a defendant's rights are not tread upon and that he/she gets a fair shake.

Even most (if not all) prosecutors would agree that the government MUST be held to its standard. You would not want to live in a society where the government ran rough-shod over the citizens.

Is the system accurate? I dunno. I would like to think so, but I KNOW it is not accurate all the time. Sometimes the guilty go free, (and although it is an aweful notion), sometimes the truly innocent get convicted. It is every cda's worst fear that an innocent client gets wrongly convicted. Any tiem I lose a trial I literally pray to God that the defendant did it.

As a cda I am proud to represent the undesirable side of the scale... that of the accused. Sure its very unpopular, sure you often deal with dirtbags, sure its often thankless. However, I will gladly do my part to try to lift the heavy load (not that prosecutors have it easy mind you) to the best of my ability. I am very much a sucker for an underdog!

Yes that means I represent guilty people at times. However, consider this very common scenerio. Defendant X is charged with crimes A, B, C, and D. But X is truly only guilty of A and C. Accordingly, X should not be convicted of B and D. The only way to render justice is to defend X, who actually is a criminal. And further consider this equally common scenerio, even if X is guilty of A and C, suppose X really shouldn't recieve the maximun sentence for crimes A and C as they were not severe circumstances and don't warrant maximum punishment. The only way for justice to prevail is to defend X and argue for appropriate sentencing.

Very long explanation. Sorry.
2/9/10 3:55 PM
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Cookie Monster
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turducken - lol @ "accidentally" shooting someone directly in the temple


Yeah, I struggled with this notion too. That is until I got the ME's report which indicated the tragectory of the bullet. When I compared what the ME report said with my clients version of how he attempted to wrest the gun away from the victim when it went off, it actually was possible. Moreso when I actually got to experience this with the actual revolver (as the gun has a hair-trigger and victim was cocking and uncocking it and spinning it on his finger at the time).
2/9/10 3:56 PM
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Cookie Monster
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KenTheWalrus - I give you props. This is the exact reason why I never want to practice criminal law.

I give you much respect for putting yourself in the position where you are the lone advocate for someone's life, let alone his liberty. As some of these replies have shown, you're behind the eight ball to begin with. You may not have lived up to the level of excellence you set for yourself, but you did save your client's life. Know that if nothing else. -ken

Thanks Ken. Appreciate it.
2/10/10 6:09 PM
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Machine250
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 thanks for the answer

Can I pose a hypothetical?  What if you thought that this client was truly guilty of the murder, but he was insisting on the accidental shooting scenario (say that the ME report did not back his story up as concretely)?

Now, you think that he may truly have done murder, but you are a good enough lawyer to convince a jury that it was manslaughter.  Would that trouble you afterwards, or do you just chalk it up to each client is deserving of the best defense possible?

* sorry I hate hypotheticals, but I'm curious about the underlying ethics.....


2/10/10 11:23 PM
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halcyonday
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Machine,

Once a lawyer agrees to represent someone, ethics require "zealous advocacy." Any lawyer that feels troubled about representing a client should not that client.

That being said, one must distinguish between zealous advocacy and illegal conduct. For example, if the client has confessed guilt to the lawyer, the lawyer cannot get the client to testify otherwise. That would be suborning perjury.
2/11/10 8:37 PM
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StephenL
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did you bring in a firearms expert or let the jury play with the gun?

stephen
2/11/10 8:38 PM
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StephenL
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was the gun close enough to give powder burns on his head?
2/12/10 5:26 PM
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Cookie Monster
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Machine250 -  thanks for the answer

Can I pose a hypothetical?  What if you thought that this client was truly guilty of the murder, but he was insisting on the accidental shooting scenario (say that the ME report did not back his story up as concretely)?


* sorry I hate hypotheticals, but I'm curious about the underlying ethics.....




Re: your hypo...

If his story doesn't match well with the physical evidence and client wants to proceed with a particular line of defense then that is fine with me. Its HIS defense, his case, his life. I will NOT argue the truly absurd (recuse myself if necessary), but I will argue "plausable" theories even if they are not the strongest... if my client insists.

sidenote:
Often I will have a client sign a form "Verification of Advisement" (basically a CYA form setting forth the defense client wants to pursue which is counter to the defense path I recommend) or a Rejection of Offer form (essentially setting forth the offer from the state and the possible ramifications if convicted).

"Now, you think that he may truly have done murder, but you are a good enough lawyer to convince a jury that it was manslaughter. Would that trouble you afterwards, or do you just chalk it up to each client is deserving of the best defense possible?"

To answer you more directly, I wasn't there when the events went down so I cannot say one way or another how things went down. The state has their witnesses and the defense has theirs... it is up to a jury to do the decision making. If I am a good enough lawyer, as you put it, to get manslaughter then the sate's case was not strong enough to justify a murder conviction. Now, I often have my suspicions, bleiefs, or inclinations, but my suspicions or inclinations are not relevant to the case because as I stated before, someone should ONLY be convicted if the state can prove beyond a reasonable doubt that the defendant committed the crime. The standard is not whether or not the client did it or not, but rather whether the state can prove it beyond a reasonable doubt. If the state cannot then the defendant SHOULD be found not guilty.

In short, I have no problem defending the guilty... in fact, from a peace of mind stand-point I would rather defend a guilty person than an innocent one EVERY time (and most cda's would agree with me). However, there is nothing, I MEAN NOTHING that feels better or more satisfying than successfully defending an innocent person. Truly the greatest feeling. I cannot describe it.
2/12/10 5:31 PM
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Cookie Monster
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StephenL - did you bring in a firearms expert or let the jury play with the gun?

stephen



Let the jury play with it. The feel of the "hair-trigger" would mean so much more to the jury (at least in my mind) than an expert measuring trigger pull. (and cheaper too)

Yes burns.
2/24/10 5:20 PM
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Cookie Monster
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Update:
WOW!

Just got back from sentencing. Client gets 10 years. However, he only has to do 120 days in jail; the remainder of the sentence is to be suspended and he will be on probation for 5 yrs (the first year of which he will serve on home confinement).

Judge saw it as a night gone horribly wrong and doesn't see any benefit to client serving prison sentence as client has never been in any trouble to speak of, worked hard his entire life, helped anyone needing help in the community, and had an overwhelming family and community support. Afterword, judge said he believed incident was an accident and that he didn't really think it was intentional or malicious.
2/24/10 6:21 PM
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Xtina
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 congrats!
2/25/10 1:42 PM
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Fake Pie
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Good stuff. Sounds like your case was convincing if you convinced the judge. Does it almost make you wish you had waived jury trial and went with a bench trial?
3/4/10 3:49 PM
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Cookie Monster
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runster - cool stuff, sounds like a happy end to me.

question:

do clients usualy lie to you? obviously you can never be 100% sure, but do they usualy feel they have to convince you that they are innocent?

have you had a client that you knew was guilty and you felt he should be punnished for it and you got him off the hook?


Lie to me? LOL! Oh yes! All the time. I often tell my clients that I want to hear the goddamned truth... I don't want a bunch of horseshit as I don't have time for it. I also often tell them from the outset (paraphraseing) "Listen what you tell me stays here in this office. I can't and won't tell anyone anything without your permission. You NEED to be straight with me. You can tell me shit you wouldn't tell your priest. You can tell me a bunch of bullshit if you want, and I will believe whatever you tell me, but I don't want to hear it if the bullshit blows up in your face at trial. Remember, at the end of the day, I get to go home. OR you can tell me the straight shit, good or bad, so we can prepare for it. Your choice." Some try to make out like they are complete angels... I usually call bullshit and give what I think happened... and I'm usually right or very close (70% my guess).

Yes I have represented people who were guilty and gotten them "off the hook" many times. Most often this happens when the state cannot prove beyond a reasonable doubt that they are guilty or a victim is not interested in prosecuting.
3/4/10 3:52 PM
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Cookie Monster
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Fake Pie - Good stuff. Sounds like your case was convincing if you convinced the judge. Does it almost make you wish you had waived jury trial and went with a bench trial?



LOL! yeah thought about that quite a bit now.
3/8/10 3:39 PM
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Cookie Monster
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I don't know... interesting hypothetical.

In short, both... I would not believe it was my fault because the state's original case sucked AND I would nevertheless probably have some problems with the way things worked out.
4/25/10 5:14 PM
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Lurken
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Interesting.

Any bad blood between the two guys? Have they fought before? Are they related? Does your client have a history of anger or temper problems? Any history of alcoholism on either party? Any business deals gone bad? Anybody fucking anybody that they should not?

the flight deal looks really bad, especially if other friends and family knew they were going hunting together.

What about your closing? Why not up to your usual performance? Was opposing council good. Was client riding your ass??? what up with that?
5/4/10 12:19 PM
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Cookie Monster
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No bad blood at all. Never fought before. Not related, just friends. My client is the gentle giant of the hollow. Raging alcohol problems with both persons, but no drugs. Neither one is much concerned with money nor has any business dealings of any nature. I am not aware of anybody fucking anybody they shouldn't (however I did expolore this option with my client).

My closing... ah yes... THE closing as I now refer to it. In the past and ever since my very first trial I have almost always had really good closings. I never prepare for a closing. At best I may take a bulleted pience of paper with me with main points in case I forget... but I rarely if ever look at the paper; in fact I don't think I have ever referred to it, its more of a comfort device I suppose. When I deliver a closing (this may sound kind of hokey here) what I say and do just comes to me on the fly and it almost always is really good shit. The things just pop into my head and I deliver it in a conversational manner. HOWEVER, this time the magic wasn't "flowing" well at all. I find this unnerving because I have always had confidence in my closings and now I have to question it.

In retrospect I have attributed the sputter to 1) absolute exhustion and/or 2) my father (who is truly a legendary trial lawyer) was at counsel table with me for the very first time and perhaps it made me nervous.
5/8/10 7:29 PM
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Lurken
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interesting. Did you get paid up front?
5/12/10 11:22 AM
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Cookie Monster
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yes, but I only charged about 1/5 of what I would normally charge. Stupid on my part. But I liked him and it was all he could afford and I really wanted to help him... didn't want him to have to settle on an attorney who he could afford who might not fight the fight.
5/12/10 12:43 PM
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Lurken
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kool. man there is a really dark side to most people. Dont you wonder, did he just kill him? Its his story to tell with nobody around. Sounds like you did a good job for him. especially if he fled afterwards. Did he move the body? How long until he told someone? Did someone else find the body? How is the deceased's family now? are they bitter? do they feel like they got fucked over? this sounds like a rural area. Is your client gonna stay in the area when he gets out?

Was it part of your defense that he just panicked? It happens!

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