Sunday, March 12, 2017


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.


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