The defense case continued today. Geoffrey Loftus, a really great expert, testified on the issue of memory and attention to support the defense’s theory that the stress of chasing the speeder resulted in Robert Higbee forgetting about the stop sign and then not seeing the sign. I was a little concerned about Loftus getting a little long winded but the TruTv reporter indicated that the jury was paying attention. With these cases, the attorney and the expert need to have some type of code words that indicates that the jury is falling asleep and it is time to speed things up.
If I’m William Subin, Higbee’s attorney, I hammer the fact that the State did not even get into Higbee’s possible memory and attention issues and that the jury would have never leaned about this if it wasn’t for the defense. In addition, the State had the ability to call its own expert and they didn’t. Of course, Loftus could not say that Higbee had issues with his memory when he made the statement. Instead, he could only say that Higbee could have developed a false memory due to the events of the case.
If I’m the prosecutor, I focus on the fact that Higbee is not a rookie; in fact, he teaches rookies. In addition, it is not as if every state trooper or police officer crashes into other people every day when 1000’s of speeders are pulled over all across New Jersey. Thus, what is so stressful about pulling over a speeder, something that he has done 1000’s of times, that would prevent him from seeing a stop sign? After all, state troopers more so than anyone else, are concerned with safety, traffic controls at intersections, etc. Thus, they should be looking to make sure that the intersection is safe before going through it at 60+ mph. As a result, I would argue that Higbee could have seen the sign and/or should have known the sign was there and that he blew right through the intersection and then covered it up either intentionally or unintentionally a few weeks later.
So, there are good issues on both sides. For all the back and forth, I think this comes down to what the jury thinks about Higbee. If they like him a lot, they will probably vote not guilty. If they like the victims more, they will probably vote guilty. As a result, it is quite possible that this will end in a dead locked jury because opinions about character or a personal attachment to the victims or Higbee are unlikely to be swayed by factual or legal arguments. In fact, the more each side is challenged, the more they may dig into their own positions. Of course, if the juror are more analytical, they will probably say that the State came close, but not close enough and thus, vote not guilty.