The stronger and more compelling the case against a criminal defendant, the more cohesive the picture of guilt painted by the prosecution in opening statement, the more defense counsel must have something coherent to say in response – an alternate story, a more complete story, or an attack on the veracity and integrity of the prosecution’s tale. When none of those is provided, the opening statement becomes an act of surrender.
Consider this circumstantial evidence murder trial. A man walking on the street was shot by someone in a car. The evidence against the accused was compelling if slightly indirect:
- The car, abandoned immediately after the shooting, belonged to the defendant’s family;
- More than one eyewitness saw the defendant driving the car up to the time of the shooting, around and around the block, with another person in the passenger seat;
- The defendant’s fingerprint was on the magazine of the murder weapon, itself recovered from the car;
- Cell tower records showed the defendant’s phone to be in the vicinity of the shooting until immediately after the crime, when it showed movement away from the scene;
- The defendant remained a fugitive; and
- When finally caught, he was hiding behind furniture and underneath clothing in the house police found him in.
When the police recovered the car within minutes, only the codefendant was there. All that was missing from the proof was a witness who could say which person in the car actually fired the shot.
Perhaps it must be said that mounting a defense in such circumstances is an Herculean tsk if not a futile one. But what followed was something so incoherent as to be – in this reader’s view – an abject surrender. Here are excerpts:
It’ s an honor to be here with you. It’ s an honor to be able to spend the week with you and a particular honor to be able to speak with you, because not everything is as it seems.
Things may be perceived or I may think I see something, I conclude and piece together something, it seems to me to be a certain way. I have a certain bias and experience. [The prosecutor] is the same as me.
And from her perspective, an eyewitness identified my client. He’s the driver. He was there. She doesn’t know him. [My client] has always had dark brown hair just like he has now. The eyewitness said that person has sandy hair. The eyewitness did not identify [my client] from the district attorney’ s perspective.
Well, how do we get an ID? She must’ve pointed to a picture. And so she did from their perspective, as they see it, as it may seem to them, to the government. This eyewitness said, in addition to the sandy hair, he was light- skin and the other person in the car was darker- skin. So the police show six photographs from what they want to seem and appear. They show one of the photographs of a man who is light- skin. The others are darker. Of course she picks that picture. That picture doesn’t have sandy blond hair. She had no choice.
From the DA’ s perspective and the way she presented it to you, it might have seemed, as she told you, the eyewitness said he’s the driver. Then did you notice real quick, Honda going down, right away, fleeing the area, fired 10 shots, houses with people living, you’re getting the hell out of there.
So how did the codefendant get in that driver’ s seat? He’s the driver. How did [he like the witnesses said, cars sped down, stay down, unless he somehow turned to Superman, went to the CVS, dyed his hair sandy blond, flew out of the car…It’ s not a bench seat, flew over, drove 19 that car suddenly down. That’ s not possible.
It’s not as she appeared. It’ s not as it seems.
I am obviously going to ask you, as the Judge did, to be fair. I give you one example.
This morning, this is actually true, I had a very different opening prepared. I was walking to work and I have to walk through one of our city parks to do that. As I was doing it, there’s a guy stumbling around. I saw a phone.
He looked to me like someone that does heroin. He looks like he was on dope, a junkie. I’ m thinking, Oh, man, there’ s people trying to get to work and trying to walk around him. I’ m like, Oh, man, another one. Here I have to go to work and he’ s just doing that. So I’ m walking and everything about him looked like the way he was dressed, he was disheveled, he was thin, skinny.
As I got closer, he walked out of the paved area and put something down by a tree. Now, just happened I got to that as he was, and he said, It’ s now going to be a butterfly. I said, That was nice. He said, I tried. What a beautiful way to start the day.
I share that with you. I hope your day is beautiful and I hope you will try just like he did. Thank you.
Perhaps there is a reasonable doubt in hair and skin color, although not without a mention of who owns the car. Perhaps there is something in a story of misjudgment and misperception that can urge caution upon a jury. But “It’s now going to be a butterfly?” “Have a nice day?”
What might have happened here (since something clearly did)? Did the codefendant take the defendant’s family’s car? Was there only one person in the vehicle? How was the defendant’s phone being tracked as in the same location as the homicide? Why did he flee if he was innocent? Each of these questions begs and invites a story. All we got is this must be wrong because of hair color and skin tone, without even a homage to the principle of proof beyond a reasonable doubt?
Perhaps in this wanna-be orator’s mind this was a seamless tale of human error and the fallibility of perception. But not to anyone outside of the speaker’s brain. This was incoherence, and incoherence is no strategy for an opening statement.