I have to say that I am a little surprised. I really thought Higbee was done for since a not guilty verdict should have came on Friday. Regardless, it was the right result and I am happy for him. Luckily the jury saw right through what was mostly a nice presentation by the Prosecutor. In the end, I think it all boiled down to common sense: is this some crazy trooper that blows through stop signs or can a person make one tragic mistake in their life? Higbee’s experience and lack of any discipline problems really helped him out as it was rather obvious that this was just a really bad mistake.
Trying to read into jury questions is almost impossible. Higbee could still walk away with a not guilty verdict, but I have some serious doubts at this point. Friday came and went without a verdict which is always important for a defense attorney. A lot of verdicts tend to come down around 4 on Fridays when the weak hands fold as the prospect of coming back on Monday becomes real.
With the jury out all day, not much happened except for some jury questions. At first they wanted a calculator and then an hour later, they wanted a ruler. I can’t possibly think of another criminal trial where a jury would ask for things like that. I can’t see how this helps the defense. The more they try to calculate one thing or the other, the more they are trying to find guilt.
My best guess is that there will be several more questions on Monday in addition to at least one read back request. As a result, I don’t think we will see a verdict on Monday.
Both sides gave their summations today. I have to once again reiterate that although I’m a New Jersey attorney, I don’t know anyone in this case and I don’t have any particular prejudice for or against either side. That being said, I think the defense summation was one of the worst I have ever seen and the State’s was one of the best.
I’m sure William Subin is a nice guy and he may be a great attorney. However, I just didn’t get his summation at all. I also understand that every attorney has their own style and it is so easy for me to second guess an attorney when I’m not in the heat of battle. However, I ask anyone to please explain what exactly this summation was about. Subin said the word disregard so many times, I lost count. He said it in the context that the jury should disregard anything he says that contradicts what the court says with regard to the law. Ok great, we got it the first time. You don’t need to keep saying it. In addition, you don’t want to tell the jury that you are probably going to make a mistake about the law. This doesn’t do much to help your credibility.
In addition, the first part of his summation didn’t even address the facts of the case. Instead, he focused on thanking the jury and talking about their duty. The research I have reviewed has told me that jurors don’t like to be thanked and the concepts of primacy and recency are important. Thus, you want to have some of your best stuff in the beginning and the real big punch at the end. I didn’t detect this here.
There was also no real focus here. I could not keep track of where he was going and what he was talking about. I was lost for most of the summation. When I draft a summation, I want to focus the jury and tie everything up. I also want to address all of the evidence and have passion. I saw none of this. I was really disappointed and surprised. I can’t see how anyone can explain to me how any of that summation made any sense but I’d like to hear anyone else’s opinion.
Compare that to the prosecutor’s summation. Did he talk for 20 minutes about how thankful he is for the jury and how they can disregard everything he says? No. The first thing he did was to focus the jury on exactly what is at issue in this case. That is the act and whether that fits the elements of the crime and not forgiveness, sympathy, etc. It was really smart.]
Once he focused them on what their job is, he took them through the facts and the law. If I was teaching prosecutor how to give summation, I would just play this for them and say this is how you do it. It was very methodical and logical which is how I like to do it. In my last trial, several attorneys that watched my summation said I was like a professor when I methodically went through the evidence in the case to tear apart the State’s case.
If I had to take issue with the prosecutor’s summation, I would say that he could have spent a few minutes addressing the character witnesses. Due to commercial breaks, TruTv doesn’t show every second so maybe I missed something, but the prosecutor needed to address his statement and whether or not it was a lie. I would have said, yes, he is normally a truthful person but this is the first time that he ever killed anyone, so you do what you have to do to convince yourself and everyone else that you stopped at the sign. After all, no one will say I didn’t stop at the sign. The prosecutor did address his statement by pointing out that he didn’t indicate anything about being confused or seeing the wrong sign, etc.
The prosecutor did a great job of making Loftus’ expert testimony pointless. He said, how can you turn on a road without a light or stop sign in your direction a few minutes prior and not remember that that just occurred? How also could you not see the stop-warning sign, the stop sign, the changing dividing line, the stop line and the fact that the dividing lines stop where the intersection was. He should have focused on his experience as a State Trooper and one that trains other troopers to say that he off all people should have known about these indications. Thus, this business about not seeing the stop sign is garbage because it was more than just the sign. Good stuff.
If Higbee pulls this off, he has to realize how lucky he is because while I don’t think he should be convicted in a perfect world, I think he probably should be convicted based solely on what the jury heard.
Robert Higbee took the stand today which was expected. I think he did really well, although he had it rather easy from what I saw. I also think it was the right move and that he was obviously well prepped.
I think the prosecutor really missed the point on cross. In fact, it was hardly a traditional cross, even for a prosecutor. Prosecutors generally seem to yell at defendants on cross but this prosecutor didn’t even do that. If I had Higbee on cross, I would have probably ripped him apart and made him look horrible in front of the jury.
If I am the prosecutor, I pull every, single stop that Higbee ever made and question him about a wide variety of them. I also get into the number of times he has pulled people over, all of his training, etc. The goal here is to show that out of all of his stops, this is the most stress-free, routine stop he has ever had. Thus, the story about him having this laser focus is garbage. In addition, I understand that he teaches other troopers, so how can someone of his training and experience screw up and not be aware of the possibility of a stop sign?
The prosecutor can then wrap this up by arguing that he screwed up and he tried to cover it up. Sure he is an honest, nice guy but his world was crashing around him and he has never been in this situation before. He had to lie and he thought that no one would look into it because he didn’t know the black box existed. Luckily for Higbee, I’m not the prosecutor on the case.
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.
Not a lot of testimony today. The State’s last witness was the medical examiner who only reviewed the report of the ME that actually conducted the autopsy of the two victims in the case. Normally I’d take great issue with that but it didn’t seem like that big of a deal here. Higbee’s attorney William Subin made some interesting points with the ME by bringing out the fact that the victims were killed by numerous injuries to the head and that at least one of the victims were not wearing a seat belt. Thus, the ME cannot say that Higbee directly caused the deaths of the victims.
Of course, you don’t want to blame the victims, but raising the issue as a minor defense theme could create some more doubt with at least a juror or two. It will be interesting to see how they play that car.
The other big news item was the Defense’s motion for a judgment of acquittal. These motions are almost always denied. However, this one was rather interesting as it was William Subin vs. Judge Batten. It was almost as if the prosecutor wasn’t there. While I normally wouldn’t want to lay everything on the line like that, I suppose there is nothing to lose as the defense is rather obvious.
I hope someone working for Subin recorded this and took notes as Judge Batten is rather well thought out and as a result, he really gave Subin the prosecutor’s entire summation. Good stuff.
Today saw the crime scene re-constructionist back on the stage. I think it was a great day for the defense for a number of reasons, but the primary one is that Higbee’s attorney, William Subin really focused the case on the main issue for the defense: if Higbee didn’t see the stop sign, he couldn’t have been reckless. Subin also did a good job of objecting over and over again as the Prosecutor tried to get around the objections that the court sustained.
There was no testimony on the 20th because Robert Higbee’s attorney was ill. There is no testimony on the 22nd because of an unpaid day off for State employees. Testimony will resume on Tuesday.
Today’s witness was Richard Ruth, the “black box expert”. The defense didn’t even start cross yet so I expect at least another full day of testimony if not more. However, during the voir dire of the expert the defense can cross the expert about their qualifications. In this case, William Subin, Higbee’s attorney did a great job in ripping apart Mr. Ruth who seemed a little “off”. This is the type of guy that wears a short tie which just tells me a lot about him. Mr. Subin brought out the fact that Mr. Ruth forgot about what trial he did testify at and which he didn’t. For me, it was the most exciting part of the case because Subin and Ruth really went at it. While I think Subin could have crafted a little better to box Ruth in, I know it is easy for me to say that when I am not in the heat of trial.
For all of the expert’s testimony, I think a lot of it was too much information for the jury to handle with much of it being pointless. One key issue that came out was that Higbee tapped on his brake pedal before the warning sign for the stop sign. Thus, the State will argue that Higbee saw the stop sign, tapped on his brake and then still went through the stop sign thinking that no one was coming from the other way.
Of course, this is all just speculation. Mr. Subin needs to hammer the point home that you don’t know why he tapped on the brake, i.e is this his normal driving behavior or did he see the stop sign? That is really the key point of the case. Crossing this expert on and on about this and that will only distract from the key points of the defense. As I’ve said before, this is actually a fairly simple case that is being made more complicated by both sides.
The same witness was on the stand all day and didn’t even finish. TruTv stated that the most damaging testimony against Higbee was the fact that Higbee should not have went through the stop sign. As a 7 yeard old may say, Duh! The issue here is that Higbee didn’t see the sign, not that he saw it and said, screw it, I’m going for it. Thus, I don’t see how that testimony amounted to anything.
On the other hand, it seemed like Higbee’s attorney, William Subin, scored a lot of points on cross. He did a great job in focusing on the fact that there were any number of reasons for “someone” to not see the stop sign. The testimony got rather complex at times and I am simplifying this. Now if the Prosecutor is smart, he spends most of his re-direct tearing down this testimony by getting him to say that while “someone” could be distracted by this, that or the other thing, he cannot testify that Higbee was in fact distracted by anything. However, Mr. Subin already took care of some of this by getting the witness to indicate that he didn’t even investigate Higbee’s perception, distractions, etc.
The bottom line is, this cross was the most important so far for the defense.
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.