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Quick thoughts on Robert Higbee trial for May 13th

Not much happened on Wednesday due to  various delays.  The State Trooper that testified, Anthony Mertis investigated the crash.  The major aspect of his testimony was the stop sign and whether or not it was illuminated.  I missed most of the cross due to TruTv’s schedule, but I did catch some.

It seems like Higbee’s attorney, William Subin did focus on the fact that the video shown to the jury which depicts the stop sign was overly illuminated due to the Trooper Mertis’ car and the lights that he had on.  Mr. Subin also brought out the fact that Trooper Mertis was aware of other accidents at the same location.  In addition, Mr. Subin established once again that Higbee was following proper protocol when he was attempting to go after the speeder.

All in all, I’d have to give the win to the defense for Wednesday’s brief proceedings.

Robert Higbee – Trial on May 12th

A few quick thoughts on the trial for the 12th.  I have to agree with the commentators who have questioned why Robert Higbee’s attorney, William Subin, got into it with Michael Taylor, a young witness and victim.  Once again, I note that it is easy for me to judge another attorney’s tactics and performance from the comfort of my couch.

That being said, the first thing that continues to jump out at me is Mr. Subin’s continued use of open-ended questions.  I think he has been burned several times.  You have to keep some ammo for summation.  Make your point and move on.  Any young attorneys or law school students reading this should really look into Pozner & Dodd’s cross examination books and materials.   I see no chapters here and no real focus.   My favorite question, “what is the difference between a muskrat and a opossum?”.  Huh?

I can’t hammer this point home enough.  You never want to let the witness explain anything.  Ask a question and move on.  You never want to end with, So then, how could you have…  In fact, the witness should not know where you are going.  For example, one issue in the case is how dark the area in the intersection was.  You want to bring up facts.  No street light. Time of night. Lack of other lights.  Desolate road.   Etc.  You don’t want to follow that up with “so, then how could you have seen this or that”.  You bring up all of those points and establish that it was very dark.  You won, move on.

Another issue is that you do not have to fight with every witness.  I was in a homicide case last year.  More than half of the witnesses were not  hostile.  As a result, they were very comfortable with me and it was a smooth, easy cross.  With two witnesses, DNA and ballistics, the witnesses were so cool with me, that I made it a point to shake their hands (in front of the jury) as they left the stand.

In the Higbee trial, Mr. Subin seemed to spar with Michael Young.  There is really no reason for that.  While you want to defend your client with everything you have, you need to balance that against turning the jury against you as that will not  help your client.

I also would like to know why the Prosecutor focuses on questions such as where do you live, with who, where do you work, etc, etc.  Who cares?  If you really want to inflict some damage, focus on the real evidence.  Otherwise, the jury will forget most of what was said.  Of course, all of this is rhetorical as most prosecutors have the exact same pattern no matter where you go.  They are taught this way of questioning but I’ve never heard a real reason behind it.  If the witness is nervous, a few easy questions is ok but not many.

Robert Higbee trial – May 11th, a few hours of Charlie Brown’s teacher

I’m not sure if it is the cameras or if these lawyers, like many others, like to hear themselves talk.  I am of the Pozner and Dodd school of cross examination.  So when I evaluate a cross examination, I think about what they would do.

I was rather surprised at Higbee’s attorney’s use of open-ended questions and compound questions that sometimes confused the witness on the stand.  I also thought that his cross was a bit out of order as it took him a while to get into some important aspects.  By that time, the jury may be asleep.

I think the Prosecutor did an even worse job on direct.  I really don’t see where he was going except on and on with the first witness of the day (the first State Trooper on the scene).  Again, after a few minutes of that, all the jury hears is Charlie Brown’s teacher.

You have only a few minutes to get the jury’s attention.  This case is fairly simple.  Was he reckless or was this an accident?  There are only so many issues that need to be addressed.  Thus, there is no reason for the first witness to be on the stand for several hours.  At this rate, this trial will be going on forever.   Asking less questions may yield better results. 

I guess everyone has their own style, but mine is a quick, hard hitting cross examination that is very surgical.  I also try to use inflection in my voice instead of a slow, monotone voice.  I believe this helps the jury pay attention in numerous ways.  After all, when we speak to each other, we have a lot of inflection in our voices. 

I do want to point out that there is no one way to win a case.  However, I do think that there is only one way to really cross a witness.  Of course, I’ve never had a case thatwas featured live on national tv, so who knows how I would react under this situation huh?  I’d like to think it would be no different.  Emphasis on “like to think”.

At the very start of his trial, is Robert Higbee in trouble already?

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.