So, I spent my Friday morning in my new Friday afternoon quarterbacking ritual, and listened to the Slate Serial Spoiler Podcast. As a guest, the podcast hosted Jami Floyd, a very experienced legal talking head. I agreed with her about some things, as is obvious from my last post, but I disagreed with her on one major major point.
Adnan should not have testified.
Why? Because he would have sucked.
But, before I go any further, let me just say that I’m going to talk about my thoughts on his ability to testify based soley on the facts of the case. What I mean by this is Jami Floyd suggested that the only thing normally preventing a defendant from taking the stand is his prior record. I disagree, obviously. First, a defendant’s prior record only comes in if the conviction relates to crimen falsi – crimes of deception. Because at that point, that’s the only character trait at issue – do you have a history of criminal deception? Crimes involving violence, etc. only come in if the defendant puts on character testimony. They can’t be used during cross of the defendant because that’s propensity evidence, and it isn’t allowed. Adnan didn’t have these problems anyway, but maybe he did have other issues. I don’t know whether there were any pretrial motions in this case, and whether the defense attorney was able to keep some bad stuff out. So law aside, onward.
So, how do I know he would suck? Because we have heard him in his prison phone calls with Sarah, and the only time Sarah pauses and hesitates when she thinks about whether he did it or not is when confronted with bad evidence, he has no explanation, or unsatisfactory explanations. And that’s after thinking about this evidence for 15 years. And, that’s to an audience who is predisposed to believe him.
So, if a predisposed listener who wants to believe him finds herself pausing, hesitating and refraining from acting after hashing out his unsatisfactory responses to reasonable questions, how is a jury going to preceive his testimony, when as already discussed, and universally agreed upon, they are already poised to convict, and presume him to be guilty?
Testifying would not simply have been a matter of Adnan getting in front of the jury to tell his story. It would be nice if we could just put our clients up there, and let them sit back down after direct. But, a defendant is subject to cross-examination, and the determinative factor of whether or not a defendant can testify is really not how well they can tell their story on direct, but how well they can withstand cross-examination.
And, it is clear that Adnan would have failed miserably at cross. As Diedre Whatshername from the Innocence Project Pointed out, if Adnan were innocent he would understandably be unhelpful, and know very little information about the crime itself. So, he’d be taking the stand to say, “I don’t know,” “I don’t remember” and “I couldn’t tell you,” for five days – because don’t think for a second he’d be on the stand for less amount of time than Jay (well, if the prosecutor was skilled he would be, but it seems like this case lasted an incredibly long time due to both sides).
So, what can he say? We’ve heard him try to explain where he was that day – well, I was at practice, I was the library, I was getting stoned, I was blah blah blah. As I’ve mentioned before, once he testifies, the burden is going to shift to the defense to prove innocence, because that’s just the way it is, and the jury is then going to be thinking – ok, you were at the library – where are your witnesses that saw you? Where are those alibi witnesses? And, just maybe, it depends how the the rest of the case would go, but normally, a prosecutor in closing cannot comment on the defense’s failure to call witnesses – that’s burden shifting. However, there is fair response – if Adnan were to open the door – talk about why he didn’t call witnesses without prompting by the D.A., he may very well open the door to the DA being able to do just that.
Then, Adnan’s going to have to answer questions about the Nysha call. The Nysha call is totally explainable in closing. Remember what I said in my last post – if you can say it better than your client, you should because it’s your job? I assure you a good defense attorney would be able to turn that fact into a plus in closing because Nysha is clearly remembering the wrong phonecall. But it’s a deep dark pit of cross examination fodder – because his butt dialing explanation immediately following her assertion that she doesn’t have an answer machine is going to end up sounding like Elmer Fudd b’dee b’dee once the prosecutor got done with him.
What else is he going to say. That he was with Jay.
Even after 15 years, he has zero explanation as to why Jay would lie.
What else? Hae’s note to him about the bad break up, his bad behavior, and his writing – I’ll kill at the top of the page. This cross-examination screams DANGER DANGER DANGER. On cross, when confronted with allegations of mistreating Hae, and Hae’s own words suggesting that truth of that – the jury could possibly, for the first time, see the face of the guy that killed her.
And, really – we’ve heard his answers about why he didn’t call or try to page Hae after she went missing. But, his answer was really unbelievable. He called her three times the night before she went missing, admits that he was trying to get a ride from her the day she disappeared, and then, snap, just like that, he’s not calling her because she has a new boyfriend, their relationship wasn’t like that, blah blah blah. Just as his explanations fell flat to Sarah – they would fall like a lead balloon on a jury. So, does the jury give him the presumption of innocence, give him the benefit of the doubt that he didn’t call because he was relying on friends who were calling? or do they do what juries really do, apply the presumption of guilt, and conclude that he didn’t call because he knew she was dead because he killed her. Game over.
Adnan’s testimony would have shifted the burden of proof to the defense, it would have been fraught with landmines everywhere for three days, four days, five days, who knows? and he wouldn’t have added anything other than to say “I didn’t do it.” His lawyer is supposed to be saying that.
No, the failure of this case wasn’t in him not testifying, again, it was in his attorney failing to pick a jury that would not hold that against him. Some might say that that was out of her control – that the questioning of the jury is limited, that it’s near impossible to really get into the heads of the 12 people who are in the box to hear your case. But, you know what – at least in Pennsylvania you have seven preemptory challenges and an unlimited challenges for cause. Many people are going to flat out admit that they are going to want to hear from the defendant, gone – you don’t even have to waste a preemptory. Others will be rehabilited – meaning the Judge will say, if I instruct you not to do that – hold it against him – you can follow my instruction. And they agree. Don’t be fooled – use your preemptory. Really – who cares if they are related to lawyers, fi they believe cops more, if they know someone who has been convicted of a crime – that’s life. What you care about in a case where you’re not calling your client is whether or not a juror is going to hold it against him. And, the best you can do is try – and I seriously doubt this attorney did.
So yeah, as a defense attorney – you’d really really want to use your nice, charming client as a witness. But, through his conversations with Sarah, he can’t even answer soft ball questions, and that’s as an adult. How do you think he’d deal with the hard questions as a know-it-all teenager, who had the balls to say something to Jay as he took the stand, right in front of the jury. A kid who is going to do that, is going to be very hard to prep to withstand cross-examination, considering he couldn’t even follow his attorney’s instructions to not react to Jay’s testimony.
Because she had to have told him that, right?
At some point in the podcast, the question was raised about whether Sarah’s going to do an episode about the elephant in the room, the bad lawyer. And, I just don’t think so. As I’ve said in every post, writing all of the problems with case off as due simply to bad lawyering is not a good story. For instance, if you simply conclude that the jury believed Jay because Adnan had a crappy lawyer, what’s the point in having any of these discussions? So, if the show is audience driven, I guess she will do a show on the the attorney, because people want to know. But, bad lawyering is the sad case of many many many convicted clients, and I don’t think that’s the ulimate ending that Sarah wanted to have for this show.
But, stay tuned.