Category Archives: Trials

Pedro Espinoza: Tragic Murder Produces a Terrible Argument

A Los Angeles jury convicted Pedro Espinoza of first degree murder for the senseless and tragic killing of Jamiel Shaw. (LA Times, 10 May 2012; p. AA1). Espinoza, a recently-paroled gangster, killed Jamiel Shaw in the mistaken belief that the red backpack that Shaw was wearing indicated that Shaw was a member of the “Bloods,” a rival gang. The defense lawyer asked the judge to throw out the guilty verdict and declare a mistrial because two of the jurors had worn some red clothing to court on the last day of trial. The defense lawyer argued that by wearing red the jurors displayed bias against Espinoza. The judge rejected the argument, pointing out that the defense lawyer wore a red tie while making it. If there’s a list of “10 Worst Legal Arguments of the Year,” this one deserves to be on it.

During his final pre-verdict remarks to the jury, the defense lawyer had made an argument that examplifies the fact that circumstantial evidence always gives rise to conflicting inferences. The evidence showed that a few days after Shaw was killed, Espinoza kept his appointment to meet with his parole officer. The defense lawyer argued that the evidence supported an inference that Espinoza was not the killer: if he had killed Shaw, Espinoza surely wouldn’t risk a meeting with a parole officer. But the jurors might well have concluded that the evidence was consistent with Espinoza’s guilt. If he had killed someone a few days earlier, Espinoza would want to avoid looking suspicious or lead the police to come looking for him by failing to keep an appointment with a parole officer.

The jury will decide next whether tim recommend that Espinoza be sentenced to death.

It Can Be Tough to be a Juror!

Many people cringe when they get a notice of jury service, anticipating possible disruption to their daily lives. But the perils of jury service can be much greater.

In the California Supreme Court case of People v. Abel (2012), the defendant was convicted of capital murder and sentenced to death. One of Abel’s grounds for appeal was a number of allegedly prejudicial comments that the judge made during the trial. For instance, at one point the trial judge told the jurors that if he found out that they had discussed the case while the trial was ongoing, they would have to be “shot, or some other reasonable form of punishment.” The Court rejected Abel’s argument, pointing out that the trial judge just had “a propensity to quip whenever the opportunity arose,” so comments like these were no harm, no foul.

Going back a few centuries, be glad you weren’t an English juror during the reign of Henry VIII. A 1531 statute provided that if the jury gave an erroneous verdict, every member of the jury had to forfeit property, half to the King and the other half to the wronged party.

The bottom line: when you get that jury service notice, be happy if your only concern is possible disruption to daily life!

Jeopardy and a Half?

The Double Jeopardy Clause of the US Constitution bars the government from trying a defendant twice for the same crime. So assume that a defendant is charged with first and second degree murder. The jury acquits the defendant of first degree murder, but is “hung” because it can’t agree on whether to convict the defendant of second degree murder. The government can re-try the defendant for second degree murder, but not for first degree murder.

Blueford v. Arkansas requires the US Supreme Court to interpret the Double Jeopardy Clause in the context of a jury’s mid-deliberation statement to a judge. Blueford was charged with killing his girlfriend’s 19 month old baby. The charges ran the gamut from most serious (capital murder) to least serious (negligent homicide).

After 3 hours of deliberation, the jurors came back to the courtroom and the foreperson indicated that they were stalemated. They were unanimous against capital and first degree murder, but stuck on manslaughter, 9-3 in favor of conviction. The judge sent the jurors back for more deliberation, but 30 minutes later they reurned, having made no further progress. The judge declared a mistrial.

Arkansas plans to re-try Blueford, and everyone agrees that he can be charged with manslaughter and negligent homicide. But does Double Jeopardy prevent the state from charging him again with capital and first degree murder? Blueford argues that the foreperson’s mid-deliberation statement in open court is the equivalent of a formal acquittal of those charges. Arkansas argues that no final verdict was had. The foreperson’s statement was only an informal “here’s where we’re at” that the jurors could legally have changed to a conviction for murder.

My thoughts: The foreperson clearly indicated that the jurors had unanimously rejected the capital and murder one charges. That didn’t end the jurors’ task, but partial verdicts are quite common. Since the jurors deliberated only for another 30 minutes, they obviously didn’t re-think the murder charges. If I had a vote, I’d uphold Blueford’s Double Jeopardy claim. But I don’t.

Sort of Competent

Perhaps only in a country so strongly committed to individual rights could criminal defendants enjoy both the constitutional right to be represented by an attorney and the constitutional right to represent themselves.

The California Supreme Court case of People v. Johnson (2012) reveals how confusing it can get to juggle these rights. Though mentally ill, Johnson was determined to be competent to stand trial. This meant that he was deemed capable of understanding trial proceedings and working with his attorney, if he had one. But he didn’t have one because the judge had granted his request to represent himself. After a few months had gone by during which Johnson had filed silly motions and behaved in a bizarre manner while in court, the judge revoked Johnson’s right to represent himself and appointed an attorney to represent him.

It can be difficult to be a judge these days. You have to know when a defendant has enough mental capacity to be competent to stand trial, but not enough to represent himself.

A Dummy Cross Examination

Courtrooms are often sites for memorable “theater.” For example, can anyone who watched the mid-1990’s murder trial of OJ Simpson ever forget his conveniently unsuccessful struggle to put on the glove that the police found at the murder scene? The prosecution’s failed experiment gave rise to defense lawyer Johnnie Cochran’s famous catch-phrase summary, “If the glove don’t fit you must acquit.”

More recently, a creative California prosecutor tried to use a mannequin to help prove that a defendant had committed a gruesome murder. Testifying at trial, the defendant admitted to strangling his male lover-victim to death. But the defendant tried to lessen his punishment by testifying that he did so in the heat of sudden passion. If the jury accepted this defense, the defendant could have been convicted only of voluntary manslaughter, a far less serious crime than first degree murder. Trying to undermine the “heat of passion” claim, the prosecutor told the defendant to pretend that the prosecutor was the victim and to show the jury how the strangulation took place. (Even in open court this was a brave experiment. After all, the defendant had admitted to one strangulation already!)

The defense lawyer objected, but said that it might be OK if the prosecutor used a mannequin. The judge declared a recess, telling the prosecutor to “go find yourself a dummy.” The prosecutor returned to court with a female dummy. The dummy (not the prosecutor) was “wearing a blue dress, a pink ribbon and a hat.” The defense attorney again objected, pointing out that the female mannequin did not resemble the male victim.

Then matter got even more bizarre. The judge ordered the defense attorney to disrobe the mannequin. The defense lawyer did so reluctantly, stating that “I still object, but that’s better.” Responding to the prosecutor’s (and the judge’s) directions on cross examination, the defendant then spent considerable time using his hands and a strap that the prosecutor found in a trash can to strangle the helpless naked female dummy.

How any of this helped to prove that the defendant had committed an intentional murder was not apparent to three judges on the California Court of Appeal. The judges opined that the re-enactment was “suggestive of a slapstick parody,” “inflammatory,” and an “absurd, indecorous courtroom spectacle.” But they decided that while the trial judge never should have allowed the re-enactment, the defendant was so obviously guilty as charged that they unanimously allowed the defendant’s conviction of first degree murder to stand. The case is People v. Rivera, 133 Cal. Rptr.3d 721 (2011)

The bottom line: “Go get yourself a dummy” is probably not a catch-phrase that this prosecutor will ever want to hear again!

Dr. Conrad Murray on Trial for Michael Jackson’s Death

Dr. Conrad Murray is charged with involuntary manslaughter for causing the death of Michael Jackson. In California, a conviction for involuntary manslaughter is punishable by up to 4 years in prison. While this is analogous to a civil medical malpractice case for damages, the prosecution’s task is harder in two key ways, compared with what a civil plaintiff must prove.

First, the prosecution has to prove that Murray behaved recklessly rather than negligently. In order for Jackson’s killing to be considered involuntary manslaughter, it must be shown that Murray showed a reckless disregard of substantial risks, and that those risks caused Michael Jackson’s death.

Second, prosecutors must prove Murray’s guilt beyond a reasonable doubt. Because involuntary manslaughter involves recklessness and not purposeful killing, it is a less serious crime than murder or voluntary manslaughter, but it’s still a tough crime to prove.  

As in so many cases, if Murray is convicted, it may be due to his own lies and failure to tell emergency medical personnel that he had treated Jackson with propofol.

We hear a lot these days about how medical care for the wealthy is so much better than it is for poorer people. Maybe it’s not so. Michael Jackson was paying this guy an absurd $150,000 per month, and for all that Murray seemed far more interested in talking to his bevy of mistresses than checking to see whether his patient was breathing.

‘West Memphis 3’ Freed: What is an Alford Plea?

In one of the most surprising chapters in the controversial story of the “West Memphis 3”, the three Arkansas men — convicted of murder while still in their teens, and now in their 30’s — were set free today.

Jason Baldwin, Damien Echols, and Jessie Misskelley have essentially agreed to plead guilty to the 1993 murders of three boys in West Memphis, Arkansas, but the three defendants are also still permitted to proclaim their innocence.

Confused yet?

The judge in the Jonesboro, Arkansas case has allowed the “West Memphis 3” to enter a special plea agreement, commonly known as an Alford plea, which lets an accused person maintain their claims of innocence while acknowledging that the prosecution has compiled enough evidence that a jury could return a conviction on the crime charged. There’s some good background and discussion on this kind of plea here on

Baldwin, Echols, and Misskelly were given time served for their charges after the judge accepted their new plea bargains, and all three are under suspended sentences after being set free, this according to MyFoxMemphis, which quotes prosecutor Scott Ellington saying after today’s proceedings: “I believe this case is closed.”

The Alford plea gets its name from the 1970 U.S. Supreme Court case Alford v. North Carolina, in which the Court upheld this specific kind of agreement between a prosecutor and a criminal defendant. In that decision, the Court declared:

    “An accused may voluntarily, knowingly, and understandingly consent to the imposition of a prison sentence even though he is unwilling to admit participation in the crime, or even if his guilty plea contains a protestation of innocence, when, as here, he intelligently conclude that his interests require a guilty plea and the record strongly evidences guilt.”

‘Caylee’s Law’ Coming Soon?

A mere two days after a Florida jury decided that prosecutors failed to establish Casey Anthony’s guilt beyond a reasonable doubt when it came to the murder of her daughter Caylee Anthony, comes news that legislatures in at least four states are planning to draft some version of a criminal statute they’re calling “Caylee’s Law.”

Though specifics of any final version of “Caylee’s Law” will likely vary from state to state, the idea is to require parents to quickly report a missing child (or the death of a child) to the proper authorities within a short time (such as 24 hours), or face conviction for a felony. Currently a plan for drafting “Caylee’s Law” is set in Florida, Oklahoma, New York and West Virginia, but it would be no surprise to see more states quickly fall in line behind those four. And the WSJ Law Blog reports that almost 100,000 people have also virtually “signed” an online petition calling for the creation of a federal version of “Caylee’s Law.”

In the Anthony case, Caylee Anthony’s disappearance was not reported to authorities for over a month. And while Casey Anthony was convicted of four counts of lying to police, she faced no additional charges for failing to report her daughter as missing, because Florida has no such law on the books. That may change soon — and not just in Florida. Stay tuned.