Wednesday, March 15, 2017

LOVELACE MUSINGS: THE RELEVANCE OF GRANPARENTAL VISITATION NOW TO MURDER THEN

(It is important that I repeat what follows in this paragraph for those of you who may not follow my blog or my Facebook postings. I was, at all times pertinent and still am,  utterly indifferent to the outcome of the murder trial. Cory's late father and her mother have long been among my dearest friends. Curtis has been a valued colleague in the bar and was often a visitor at my house during his high school years. Christine's grandfather was both a dear friend and a mentor. In various stages of their lives, I have known and enjoyed all four Lovelace children. I have known detectives Gibson and Baird virtually all their lives. I have both collaborated with and opposed the special prosecutor, for whom I have great respect. Finally, I was in a unique position to know that Cory's mother and Cory's daughter played no decisional role in the idea that a murder prosecution would be initiated. They were just sucked along in the vortex of this thing in a comparable, but less drastic, way than Curtis. To say I was not "rooting" for either side is an understatement. My only real emotion in that regard was regret that they all had to go through it.)

An abiding principle of trial practice is that the parties are limited to presenting things before the court which a reasonable person could view as advancing the inquiry as to any disputed issue requiring decision in order for the finder of fact, judge or jury, to decide the matter before the court. This is the capstone doctrine of "relevance."

To use a ridiculous illustration it would not be relevant for either party to ask Sgt. Baird whether he was wearing boxers or briefs when he testified in Springfield. On the other hand it might be relevant to inquire as to whether he was wearing surgical gloves that day he inspected the crime scene.

Now that we have a handle on the doctrine of "relevance" I would like to drill down on things that actually happened during the trial. Cory's mother was asked about the conversation she and Curtis had on Valentine's Day, 2006 when Curtis brought Larson to her. A reasonable person could believe that what Curtis said to her that morning was relevant to either or both the question of whether a murderer had occurred and whether Curtis had participated in it. That she was examined by both sides about this is not surprising.

But, then, before she was excused from the stand, she was asked about her access to her grandsons since 2013 or 2014. No reasonable person could believe that anything about this unfortunate embargo was in any way probative of any matter surrounding the two issues before the jury.  Hell, it started seven or 8 years after the death.

Then, later in the trial, Christine was examined rather extensively on this topic. She even offered an explanation (Blame the lawyers) as to why the grandsons had been embargoed from the grandmother. With all due respect to everyone – and Christine had no alternative but to answer the irrelevant questions – nothing about this topic could possibly advance the inquiry before this jury.

To be fair, lawyers have been eliciting irrelevancies from witnesses since around the time of the Magna Carta. Generally speaking, courts will allow harmless little side trips because the objections, rulings and cautions consume more time than allowing the questions. These little ditties are usually harmless.

That's the rub. These were not harmless. These young men have a devoted sister. They have a loving grandmother. For that matter, they have both a grandfather and grandmother on the paternal side. To be reminded of this isolation is cruel. To be reminded of it when the questions concerning it do not advance the inquiry placed before the jury at all, is gratuitously cruel.  It is scratching a scab that never heals.

It is true that lawyers in the trial of the case or in the trial of an important motion must often do things which hurt people. I can think of four or five times where simply doing my duty hurt opposing witnesses, people I really cared about, by damaging their careers or reputations. I can remember really blowing up people who richly deserved it, including a so-called expert who lied comprehensively about his diplomas and certificates, a ministerial character witness, exposed as a bigamist, and a state's eyewitness who gave the police a false name and was actually in jail, under his REAL name, in Missouri when he supposedly witnessed the alleged armed robbery in Quincy. None of those was gratuitous. They were necessary to do my job.

I have not publicly criticized either side's trial strategy. I definitely did take issue with the behavior of the defense teams "publicist" (whatever that is for an individual defendant) releasing information which should never be in the public domain but I have never uttered a critical word but the overall strategy of either side.

Having said all that, the two lead lawyers could have sat down in less than 10 minutes and agreed that the whole "grandson embargo" issue was not useful in determining either whether a crime had been committed or whether Curtis was involved in a crime. 10 minutes. 10 stinking minutes to avoid profound pain to many good people, none of whom sought this prosecution.

Long ago, military hero and Judge Learned Hand said "sometimes, the law is an ass"

Until this exercise, I thought I disagreed with him.


 

Tuesday, March 14, 2017

LOVELACE MUSINGS: ATMOSPHERICS AFTER THE CHANGE OF VENUE

For better or for worse, I have many close friends on all "sides" of this tragedy.  

Many of them behaved badly on social media before the 2016 trial.  It was really discouraging to hear.  It was as if they thought the jury trial was some kind of plebiscite and their "vote" mattered.  It was strange and sad and beneath many of the people who participated in it.

Much of it was directed at Cory, ten years dead.  I know it caused pain to her family and friends.  She certainly couldn't defend herself.

Some of it was, strangely, directed at Cory's mother.  It was if some folks actually thought she had anything to do with the investigation or the trial.  The idea that she was somehow driving this bus was so misbegotten that it was difficult to process.

So then the trial starts in 2017.  There was some ugliness on social media but NOTHING compared to 2016.

So, what happened to change that?  Was it because folks gained some maturity?  Was it because it was not in our backyard?  Was it because the trial was not "new"--no longer a bright shiny object?

Maybe a social scientist can explain it to me.  My money's on door number two.

On the other hand, I make no pretense of understanding the impulse.  You have two devastated extended families.  Really nothing to shake your pom-pons about.  Pray for everybody and move on.  No victories here, for anybody.

Monday, March 13, 2017

LOVELACE MUSINGS: THE GENIUS OF THE LAY JURY

During the course of the Lovelace trial, I have had intense conversations with two friends, both experts in fields that require largely linear thinking and both really smart guys (although one is not a very good listener – you know who you are!). They both essentially asked the same question:

"When two experts testified to one conclusion and two other experts testified to the opposite conclusion, how is a non-expert jury or individual juror supposed to sort that out?"

The answer to that seemingly complicated question is simple but non-linear.

By design, a jury is an aggregation of individual human beings with diverse experiences, biases and observational skills. We ask, indeed, encourage, jurors to bring those experiences into the jury box with them. Implicitly, we asked them to use the same sensations that caused them to select a mate, a friend, a dentist, a pharmacist, lawn care company or even a product to trust. In a criminal case, we give them essentially three rules. First, the burden of persuasion is, at all times, upon the state. Second, and actually quite diverse from the first, the defendant is presumed to be innocent at each and every stage of the case unless they become convinced, from the evidence, beyond a reasonable doubt that he is guilty. Third, and this one is often missed, we asked them to consider each piece of evidence in light of the other evidence in the case. While they get a lot of printed jury instructions, the foregoing comprises only "roadmap" that they get.

So what do they do when they get into the jury room? They do what they have been doing their entire human lives, apply their worldly experiences to the experiences narrated in court. In this case they did not have to analyze whether Deputy coroner Keller was correct or whether the older two boys were correct. Because of the ground rules, all they had to decide was whether they had a reasonable doubt that Cory was in rigor that morning. They did not have to decide whether one pathologist was competent and another was not or one was truthful and another was not. They merely had to decide whether they had a doubt. In arriving at that doubt, each applied his or her life experiences. Probably at a nonlinguistic level, many of them made a decision as to what truthful posture look like or what confidence and certainty look like. How does it hold its head? How long and how firmly does it make eye contact? When is a polite response overly clipped and, therefore feigned?

Without even realizing it, potential lay jurors spend their lives gathering the very skills which will help resolve exactly these kinds of in court dichotomies.

I think my friends, experts in their own fields, are implicitly making the argument that it takes an expert to break the tie among experts. I respectfully disagree. I believe American lay jurors are uniquely suited to the task.

In that realization is an explanation of why our flawed, vastly imperfect system is the least crappy justice system in the history of mankind.

Sunday, March 12, 2017

LOVELACE MUSINGS: ROLL CREDITS FOR ELMORE AND PAGE

The dirty little secret of criminal prosecution is that the testimony of witnesses never completely mirrors the narrative in the police reports the prosecution must give the defense.  Thus, in any trial, there is a little 'element of surprise" in the prosecution's case.  It is difficult to deal with these diversions from the expected narrative. These diversions are a marginal advantage to the prosecution because they invariably make the defense revise its cross of the State's civilian witnesses.  There is nothing "dirty" or wrong about this.  It's just the nature of human story-telling.

This is why veteran criminal defense attorneys are deft cross-examiners.  They must know the rules, be prepared and then extemporize to some extent, depending how far from his original narrative the witness riffs (there will always be some).

Obviously, in a retrial, the State loses this advantage because the witness has already been under oath and subject to cross-examination.  There are fewer surprises the second time around.

I have been the lawyer to inherit a case for retrial and I have been the lawyer who has the first jury hang or otherwise mistry.  It requires more talent to be that first lawyer.  It is a ton of work to be that second lawyer but you are, at least working with a roadmap when defending after a mistrial.  That second lawyer can, and should, stay true to his or her own style but is stuck with the roadmap left by the declarants' sworn, reported recollections.

Of course, none of this matters if the defendant is convicted in that first trial.

In "Lovelace I" Mr. Jeff Page and Mr. Jay Elmore conducted themselves thoroughly and competently.They obviously had a slightly different game plan with a home town jury than they would have had in a road game but they took the surprises, parried them and put on their own, expensive and difficult case, in a very technically sound manner.  And, most importantly, their client was not convicted.

There is the parable of the house built on sand and the house built on rock.  Mr. Page and Mr. Elmore built the beginnings of this case on rock.  That enabled someone else to complete the project without it falling apart.

Nobody's talking about these two defense lawyers today but they should both maybe smile a little more and have some extra spring in their steps in the knowledge that they put this thing in a position to be won.

Saturday, March 11, 2017

LOVELACE IN THE REARVIEW MIRROR

For me, it is unavoidable that there is reflection on the Lovelace saga.  

Cory was the daughter of two of my best friends.  

Curtis was in and out of my house when he was in High School and was a colleague in the local bar.  He was also one of the few tech enthusiasts in the bar when the technology movement was in its infancy.

I have known the Special Prosecutor since the 70's

The two investigators, Baird and Gibson, my family has known since childhood.

I was the civil attorney for the police department for 29 years and State's Attorney before that.

Christine's grandfather was one of my dearest friends and often a mentor.

With all that, I can't just flip a switch and stop thinking about this entire chapter

Today, I don't know where my reflections will take me.  As they develop in my mind and heart, I will share them with you and welcome your comments.  But I'm going to start slowly.

What may seem important to me as a trained and experienced trial lawyer may be unimportant and uninteresting to you.  That fact actually points out some of what makes the case so interesting.  There is an aspect for almost everybody..

If you follow me, you know I"m not an eveyrday blogger.  Over the next few weeks I will share my thoughts as they mature and as I become comfortable putting them in writing.

Wednesday, March 01, 2017

UNUSUAL:NOT BAD, JUST UNUSUAL.

     Having tired several dozen homicides, watched another dozen, I honestly never expect to see something in a homicide trial that I haven't seen before.

     It is impossible to explain the stress of presenting either side of such a case.  The old saying "Death is Different" is really true.  Even the most serious drug case with Natural Life as a possibility doesn't create the tension that a homicide trial does.  So one sees unusual behaviors and gambits in such a trial.

     In homicides, discovery disputes almost invariably flare up.  Stuff is duplicated or the autofeed pulls two pages through at once or human error happens.  Lawyers of otherwise good cheer can get really testy with one another about stuff like that.  That's the backdrop.

     Opening Statements (not "Opening Arguments") are for one purpose and one purpose only, to tell the jury what each side thinks the evidence will be.  Arguing about what conclusion is to be drawn from that evidence is prohibited.  Honestly, most judges are pretty loose about that and lawyers don't object to slightly argumentative remarks because it's bad for the jury to get a first impression that either side is represented by a jerk.  So there's a balance to be struck.

     But juries don't care about discovery disputes, which have been solved by the time the case gets to the jury.  Juries don't even know what discovery IS.

     So I have to admit that I was surprised when Mr. Lovelace's Defense counsel used opening statement time to go on a rant about allegedly concealed or delayed discovery.  Just never have seen such a thing.  Maybe he'll circle back to it and really exploit it.  I have no idea.

     But I have practiced a lot of years, been shot twice and stabbed once and even caddied at the Odessa Invitational and I've never seen it done before.  That makes it worthy of noting.

Tuesday, February 28, 2017

SINCE YOU ASKED: ILLINOIS RULE OF PROFESSIONAL CONDUCT 3.6

RULE 3.6: TRIAL PUBLICITY
      (a) A lawyer who is participating or has participated in the investigation or litigation of a matter shall not make an extrajudicial statement that the lawyer knows or reasonably should know will be disseminated by means of public communication and would pose a serious and imminent threat to the fairness of an adjudicative proceeding in the matter.
      (b) Notwithstanding paragraph (a), a lawyer may state:
(1) the claim, offense or defense involved and, except when prohibited by law, the identity of the persons involved;
(2) information contained in a public record;
(3) that an investigation of a matter is in progress;
(4) the scheduling or result of any step in litigation;
(5) a request for assistance in obtaining evidence and information necessary thereto;
(6) a warning of danger concerning the behavior of a person involved, when there is reason to believe that there exists the likelihood of substantial harm to an individual or to the public interest; and
(7) in a criminal case, in addition to subparagraphs (1) through (6):
(i) the identity, residence, occupation and family status of the accused;
(ii) if the accused has not been apprehended, information necessary to aid in apprehension of that person;
(iii) the fact, time and place of arrest; and
(iv) the identity of investigating and arresting officers or agencies and the length of the investigation.
      (c) Notwithstanding paragraph (a), a lawyer may make a statement that a reasonable lawyer would believe is required to protect a client from the substantial undue prejudicial effect of recent publicity not initiated by the lawyer or the lawyer’s client. A statement made pursuant to this paragraph shall be limited to such information as is necessary to mitigate the recent adverse publicity.
      (d) No lawyer associated in a firm or government agency with a lawyer subject to paragraph (a) shall make a statement prohibited by paragraph (a).

      Adopted July 1, 2009, effective January 1, 2010.

Comment
      [1] It is difficult to strike a balance between protecting the right to a fair trial and safeguarding the right of free expression. Preserving the right to a fair trial necessarily entails some curtailment of the information that may be disseminated about a party prior to trial, particularly where trial by jury is involved. If there were no such limits, the result would be the practical nullification of the protective effect of the rules of forensic decorum and the exclusionary rules of evidence. On the other hand, there are vital social interests served by the free dissemination of information about events having legal consequences and about legal proceedings themselves. The public has a right to know about threats to its safety and measures aimed at assuring its security. It also has a legitimate interest in the conduct of judicial proceedings, particularly in matters of general public concern. Furthermore, the subject matter of legal proceedings is often of direct significance in debate and deliberation over questions of public policy.
      [2] Special rules of confidentiality may validly govern proceedings in juvenile, domestic relations and mental disability proceedings, and perhaps other types of litigation. Rule 3.4(c) requires compliance with such rules.
      [3] The Rule sets forth a basic general prohibition against a lawyer’s making statements that the lawyer knows or should know would pose a serious and imminent threat to the fairness of an adjudicative proceeding. Recognizing that the public value of informed commentary is great and the likelihood of prejudice to a proceeding by the commentary of a lawyer who is not involved in the proceeding is small, the Rule applies only to lawyers who are, or who have been involved in the investigation or litigation of a case, and their associates.
      [4] Paragraph (b) identifies specific matters about which a lawyer’s statements would not ordinarily be considered to pose a serious and imminent threat to the fairness of an adjudicative proceeding, and should not in any event be considered prohibited by the general prohibition of paragraph (a). Paragraph (b) is not intended to be an exhaustive listing of the subjects upon which a lawyer may make a statement, but statements on other matters may be subject to paragraph (a).
      [5] There are, on the other hand, certain subjects that would pose a serious and imminent threat to the fairness of a proceeding, particularly when they refer to a civil matter triable to a jury, a criminal matter, or any other proceeding that could result in incarceration. These subjects relate to:
(1) the character, credibility, reputation or criminal record of a party, suspect in a criminal investigation or witness, or the identity of a witness, or the expected testimony of a party or witness;
(2) in a criminal case or proceeding that could result in incarceration, the possibility of a plea of guilty to the offense or the existence or contents of any confession, admission, or statement given by a defendant or suspect or that person’s refusal or failure to make a statement;
(3) the performance or results of any examination or test or the refusal or failure of a person to submit to an examination or test, or the identity or nature of physical evidence expected to be presented;
(4) any opinion as to the guilt or innocence of a defendant or suspect in a criminal case or proceeding that could result in incarceration;
(5) information that the lawyer knows or reasonably should know is likely to be inadmissible as evidence in a trial and that would, if disclosed, create a substantial risk of prejudicing an impartial trial; or
(6) the fact that a defendant has been charged with a crime, unless there is included therein a statement explaining that the charge is merely an accusation and that the defendant is presumed innocent until and unless proven guilty.
      [6] Another relevant factor in determining prejudice is the nature of the proceeding involved. Criminal jury trials will be most sensitive to extrajudicial speech. Civil trials may be less sensitive. Nonjury hearings and arbitration proceedings may be even less affected. The Rule will still place limitations on prejudicial comments in these cases, but the likelihood of prejudice may be different depending on the type of proceeding.
      [7] Finally, extrajudicial statements that might otherwise raise a question under this Rule may be permissible when they are made in response to statements made publicly by another party, another party’s lawyer, or third persons, where a reasonable lawyer would believe a public response is required in order to avoid prejudice to the lawyer’s client. When prejudicial statements have been publicly made by others, responsive statements may have the salutary effect of lessening any resulting adverse impact on the adjudicative proceeding. Such responsive statements should be limited to contain only such information as is necessary to mitigate undue prejudice created by the statements made by others.
      [8] See Rule 3.8(f) for additional duties of prosecutors in connection with extrajudicial statements about criminal proceedings. Cf. Devine v. Robinson, 131 F. Supp. 2d 963 (N.D. Ill. 2001).


      Adopted July 1, 2009, effective January 1, 2010.