Anyone else catch the beginning of the Robert Higbee trial on TruTV (Court TV) this week?  A friend of mine was a guest on Thursday so I DVRed it and watched it this weekend.  Since the trial is in New Jersey, I’ll have to keep an eye on it.

After just a few minutes, I wound up screaming at my TV like some crazy sports fan.  I live, sleep, eat and breathe criminal defense.  So, when I see a total miscarriage of justice, I get emotional. 

Robert Higbee is a New Jersey State Trooper that is on trial for vehicular homicide for killing two teenage girls after he hit their minivan at about 65 mph.  The focal point of the case is the fact that the Troop car’s “black box” shows that he blew though a stop sign even though he had indicated that he thought that he stopped and looked both ways. 

From the very beginning, this looks like a weird trial.  The prosecutor’s opening statement included a power point presentation that had some type of graph that was compiled from the data off the black box.  The prosecutor explained what everything meant and thus, what the black box showed.  In other words, the prosecutor presented evidence to the jury that only an expert can present way before the expert even testified.  So what do we need the expert for? 

Opening statements are just a preview for what each side expects to show, not the whole case in Cliff Notes style.  I just don’t see how any of that was admissible and I hope I just missed the objection from Higbee’s attorney.

The first witness was Caesar Caiafa, the grandfather of the two girls.  He had nothing to say about the accident because he didn’t see it happen.  So why did he testify?  Because the prosecutor knows that this trooper is a good guy.  He said as much in opening.  Thus, he has to play the sympathy card hard and early.  I don’t really take issue with his tactics as they will play any card they can.  I have a real issue with his attorney and I really hate to Monday morning quarterback another attorney.

However, this grandfather had nothing to say.  I mean nothing.  First off, I would have asked for a proffer.  After reviewing the discovery, it should have been clear that he had nothing to add.  The proffer would confirm this so a motion in limine (to exclude his testimony) would have been made.  Now maybe that was done and it was denied.  However, I still say you have to renew the objection. 

This grandfather was permitted to cry several times, talk about the lives of the two girls, how he found out about the accident and the fact that he restores old cars.  Ok great, does any of that prove or disprove any facts of this case?  No. 

I heard the commentators and hosts on TruTv say that you don’t want to object and have the jury hate you.  While there are occasions when that may be the case, this was not one of them.  This guy’s life is on the line!  You have to stand up for him!  Besides, there is a very simple solution.  “Objection, Judge, can I have a side bar please”.  You then go up there and say that you not only object to the testimony but you ask for a mistrial and if the mistrial is denied, you ask to strike his testimony and a proffer for what else he will say”. 

My advice to new attorneys is as follows:

The judge’s decision with all of that is less important than the application itself.  If you are denied across the board, you have at least set up a great issue for an appeal.  Then, when the witness is done, you advise the court that you have an issue to address before the next witness comes up so a short break would be great. 

When the jury leaves, tell the judge that you want to renew your objection and application for a mistrial and you want to put it on the record.  This should be more than just a few sentences.  Explain what you are objecting to and why and ask for a mistrial, not just a motion to strike.  The NJ Appellate Division treats applications for mistrial different than objections, but don’t overuse it.   Highlight the testimony that was objectionable, or in the case like this where it all is, group it together and don’t pull punches.

In this case, you have to tell the judge that the testimony about the lives of the girls, the crying, the events of that night that the witness saw and the fact that he restores care is nothing more than sympathy evidence that is not only irrelevant, but is specifically designed to compensate for the lack of evidence and prejudice the defendant.  This evidence will distract from the facts of the case and get the jury so upset that they will convict the defendant on sympathy alone without considering the evidence.

I’m sure all of this sounds really cold, but as a defense attorney, you have to fight for your client regardless of what anyone may think about you.  The  wife of the main witness in one trial I had asked me how I live with myself after I called her husband a crook who should be the one on trial in front of the jury and a packed court room.  I explained that I am a hired gun and my clients expect my best at all times.  She did tell me that I did a very good job though.  By the way, the verdict in that case was not guilty with only a 90 minute deliberation.

Story on the first day of trial is here.