ANATOMY OF A WIN
From the Desk of Mace

I recently won a murder case and I'd like to discuss all of the elements that made it possible. I was appointed to handle a murder case. I'll give a cursory factual synopsis. MY client, Chris, who had been up for 4 days on meth, on his birthday was picked up by an acquaintance, Doug, and driven to a house where there were some "free drugs". Once they arrived, there was an Intertec Mac 10 (A big, nasty gun that one of the alleged victims possessed). A scuffle ensued, the Mac 10 was pulled. Luckily my client had a GLOCK. He fired 3 times at the guy with the gun pointed at him, struggled with another guy, the gun went off and he died .My client ended up with a bullet fragment in his left wrist. My client also shot a pit bull that attacked him as he was leaving!

The client was arrested and wisely decided NOT to make a statement. I believe you need a theory of the case to win. Just relying on reasonable doubt or the prosecution not meeting their burden doesn't work in my humble opinion! I believe you need to give the jury something to hang their hat on. (I know it is improper to end a sentence with a preposition but in the immortal words of Winston Churchill" It is a lot of nonsense up with which to put"!)

I like to capsulize the case in one sentence. At an early stage, I knew this would be a self defense case. My theme was "what would you do if that gun was pointed at you? (I would have liked to say shooting at you but the gun expert said that the Mac 10, the other gun, kind of like the other white meat, couldn't be fired.). But, I don't make the facts, If I did I would never lose. Of course I could get indicted. (But we won't go down that road of me almost getting indicted, I think I've explored that in a previous column!)

There was a bullet fragment in Chris's left wrist. The FBI did an analysis. Unfortunately it was from his gun. So I argued this showed there was a struggle (If they give you lemons you make lemonade or as my buddy Flem from Alabama says, ("you make chicken salad from chicken sh-t!")

But let's back up a bit. I retained an investigator right away (Jim Thomas, who just happens to be my client's uncle, provided these services). He interviewed several witnesses ASAP including the soon to be Co-Defendant. The statements of witnesses proved invaluable down the line. I think a thorough investigation is the key to a good result. Jim has helped me win 3 of my 4 last murder cases (the fourth one we got reversed).

I attended the National Criminal Defense College (NCDC) in Macon Georgia in 1990. It was a great experience. It really taught me how to practice. There is an NCDC work sheet that forces you to think about your case. It has categories such as Theory of the case, Why you believe your theory is the best possible theory, what are the unchangeable facts of the case. Out of these facts, which facts work best in your favor, list all of the key prosecution witnesses and what you hope to get out of them upon cross examination, what further investigation would you do, what evidentiary issues are involved in this case, theme or slogan for defense and what type of jurors would benefit your case. I religiously fill it out before I do any trial or if I think a case will go to trial before the preliminary hearing ( If you want a copy just call my secretary at 702-385-9777 and she will provide it to you by fax or email!) It focuses me and as we all know, that is a Herculean task!

I outline each part of the trial using a system called mind mapping. It was developed by Michael Gelb. I've included a simplified mind map of my final argument. I also mind mapped each individual topic, the theory behind this is that your mind doesn't work in a linear fashion (God knows mine doesn't) so this helps you remember. I think I went through 9 outlines of my final argument for this trial. I keep tinkering until I start the actual argument.

Another thing about preparation FIRST write what you think would be a killer final argument. THEN work backwards to the beginning: think about evidence you must include, preclude and find, type of cross you will need to do witnesses, evidence props, experts and opening argument. Finally, what type of jurors will you want. DON'T WAIT UNTIL THE LAST MINUTE! You may not be able to find a certain piece of evidence and that may change your theory, don't wait until the trial starts to get this news! The progression looks like an upside down triangle At the prelim, you want to pin witnesses down and wed them to their story. Usually if they are not telling the truth, they will embellish and then if the earlier statement is better for you, you need to set the stage that at that time i.e., the person was trying to help the police the best they could and that their memory was better right after the incident. In my case a witness heard gunshots from another room in her original statement, but at prelim she miraculously materialized in the room where the shooting took place, and she was running towards the gunfire. (Yeah Right!)

A typical cross goes something like this : You were the fiance of the victim? (I never call them victims ,dastardly drug dealers work or just use their name) YES
You were upset he was killed? YES
You wanted to help the police as much as possible? YES (Bias is NEVER collateral, establish it so you can argue it to a jury later!)
Your memory is generally better closer in time to an event. YES
You said in your statement that you HEARD the shots from another room. YES

(If the witness starts to fight you as this one did, just refresh her recollection with her statement and read it into the record and ask if that was your statement. Don't let them weasel! It's either in their statement or it isn't. It's like being almost pregnant, she is or she isn't! There is NO gray area!)

The Co-Defendant was represented by Phil Kohn. We did the prelim together. Fortunately for me, his client gave a statement inculpating my client. I filed a motion to sever under Bruton and it was so rock solid that the State filed a notice of non-opposition. The trial was severed. Frankly I don't think I could have won if the Defendants were tried together

I filed a motion to exclude the evidence that the killing of the dog be excluded. There were no elements of murder w/ use, attempt murder with use, burglary, or attempt robbery that could be proven by this event and it may inflame dog owners (as it turned out there was a pit bull owner on the jury ,but he turned into an advocate for the defense). I initially wanted to get rid of him but there were others that scared me more. This was a fortuitous choice because he became one of our biggest advocates on the jury.

One note about jury selection Both the D.A. and I had NOT tried a case in this department and the selection process was different than either of us had encountered. We unwittingly left someone on the jury that knew a family member of a witness. After we empanelled the jury and 2 alternates, we decided to discuss whom this juror knew. As it turns out it was the Father of the State's first witness the man (aka one of the dastardly drug dealers) my guy shot 3 times (or as I called him the original aggressor!). We got rid of him! Another juror had child care problems so she was excused. We lost BOTH alternates before we put on the first witness. That was another fortuitous occurrence for me because the last alternate became the forewoman of the jury, and she was an advocate for the good guys (Not the dark side as I affectionately refer to my esteemed adversaries.).

The state's witnesses were druggies, dopers and deadbeats and the "scene of the crime" had a surveillance camera. The state's position was this was just some enterprising kids tying to make a little extra money. I portrayed their witnesses as sophisticated dope dealers. I said (not to the jury) it was their scum bags vs my scum bags and I had better scum bags. (My clients witnesses' did corroborate his story and even if they did drugs now and then, they used minute amounts, consistent with personal use). I made a big deal out of the fact that a ½ oz (or 1 OZ, depending on the testimony) of meth amphetamine was worth $500 to $1,000. This was NOT a one time thing.

Their witnesses, including the one with the big nasty gun admitted he was "HELPING" the decedent sell drugs! My client had a believable story ,but as I told my client I had set the table with the fine china now he had to serve the gourmet meal. It's similar to the Olympics only he didn't get to try again in 4 years. He got to try again in 40 (murder with use is 20 to life with if we were lucky, the possibility of Parole and it must be served consecutively if we lost). I felt like Michelangelo dealing with that block of stone that eventually became David. I knew there was a great story that the jury would appreciate, but could we get to it in time?

My associate, Mike Morey, played a pivotal role. He was seeing Chris on a regular basis to tune up his story and I just assumed I would do the direct. But he had a suggestion, "Let me do the direct because the timbre of my voice is more like Chris's and it will sound more like a conversation to the jury."I thought about it and said let's test it. He was right and I could concentrate on being the big, bad cross- examiner, No More Mr. Nice Guy!

I worked with Chris on cross all over the board. We zigged, we zagged, I got into his face, but all he would do is laugh at me! He knew I was on his side so he couldn't role play like I could! If you are going to practice cross, I suggest you use another lawyer to avoid this potential problem. He was great on the stand he had just the right amount of righteous indignation, especially when asked what I would deem stupid questions by the D.A.. When he was asked a good question, he had already heard it, he wasn't surprised, and he could answer appropriately.

I must give credit where credit is due. Kudos to my entire staff! The office basically shut down for the 2 weeks it took to try this case, not to mention the countless hours everyone put in on this quest. It was a demonstration of teamwork in it's finest. Lynn Cellini (whose been with me for almost 14 years ) deserves special mention. (Some of my friends say she deserves the Congressional Medal of Honor or at least the purple heart for this act alone). I did do this on an appointed basis and depending on what the Judge decides to pay me, I figure my hourly rate is somewhere between 10 and 15 cents per hour. That doesn't include my overheard., but I do this as labor of love. I just REALLY love it if I get paid more!

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