Deconstructing trials
The 911 tape of the call from Michael Griffith begins with him getting out of his car right after he got rear-ended and telling the operator he thinks the guy who hit him is drunk. Then you hear him say the guy "looks like he's going to run." You hear Griffith yell, "stop!" Then the phone goes dead.
About the same time, a women sees a gold Toyota 4Runner speed through an intersection, but it looks like something, maybe a garbage bag, is caught in the wheels. The "something" breaks free and rolls into a ditch as the Toyota speeds away. Ot's the body of Michael Griffith.
There were only two people who could've been driving the Toyota: Ethan, the defendant, or the state's star witness, Dustin.
On Tuesday, I drove down to Columbus to argue Ethan's appeal. When I took the case, I figured the major issue was allied offenses. Ethan had been convicted of aggravated vehicular homicide and fleeing the scene of an accident, the latter with a specification that the accident had resulted in death. The judge had run the sentences consecutively, and I could argue that the homicide was committed in the act of leaving the accident, so the two should have merged.
But as I read the transcript, I realized there was another issue. According to Dustin's testimony, Ethan was giving him a ride home from a party, and Dustin got out of the car and walked home, with the accident happening very shortly thereafter. Ethan was found at home two hours later, passed out drunk. All the physical evidence and eyewitness testimony linked the Toyota to the accident, so the only viable defense strategy was to claim that Dustin was the one who was driving because Ethan was too drunk to, and that Dustin bailed afterwards.
This required the defense to show that Dustin was a liar, and fortunately, Dustin was quite accomodating. He told the police a bunch of different things, like that he hadn't seen Ethan since 8:00 the night before (the accident happened at 7:00 in the morning), and that they were coming from a party 20 miles away, when actually moments before the accident they'd left a different party that was less than a mile from the accident scene. And it wasn't until two weeks after he'd first talked to the police that he mentioned he'd left the car because Ethan had punched him, or that he had an alibi witness who'd seen him around his home at the time of the accident.
Criminal defense trial theory can be distilled into two simple observations: (1) the State has the burden of proof beyond a reasonable doubt, and (2) keeping the State's evidence out, or devaluing its significance, makes it much more difficult to meet that burden. One of the best ways of devaluing evidence is what we know as impeachment by proof of a prior inconsistent statement. There is only one thing that more effectively destroys the credibility of a witness than that he has told the police something different from what he just told the jury. That one thing is where he insists that he didn't tell the police a different story, and then you get to cross-examine the detective and have him admit that his star witness lied through his teeth to him.
The defense attorney, a skilled one, set about to do just that. The law on this is a bit more complicated than it needs to be, but we've been doing this for about 500 years so we've got the basics pretty down pat. Before you can introduce proof -- the detective's testimony -- that the witness gave him a different version, you have to "lay the foundation": give the witness an opportunity to admit or deny the statement. If he admits he made an inconsistent statement, that's the end of it; you got what you wanted. Pretty much anything more equivocal than a flat-out admission constitutes a denial, and that's what happened with Dustin: he hemmed and hawed, insisting that he had told the police that, he's pretty sure he told the police that, he's certain he would've told the police that, but since everybody says he didn't tell the police that, maybe he didn't, but he's pretty sure he did. As long as it pertains to an issue in the case, that's enough of an equivocation to allow you to use "extrinsic evidence": have the detective testify that what Dustin claims he told the detective isn't what he in fact told him.
So when the detective takes the stand, the lawyer closes the trap by asking the detective testify, "Didn't Dustin tell you that..." At which point the State objected, and the defense excluded it on the basis that Dustin's statements were hearsay. That made as much sense as holding that admission of Dustin's statement would violate Chapter 14 of Hammurabai's Code. The prior statements weren't being offered for their truth, so that takes hearsay off the table.
Of course, if the judge got it right for the wrong reasons, the State still wins, so that was the argument they made. And the young prosecutor did it very well, both in his brief and his oral argument, pointing to portions of the transcript where Dustin had almost backtracked to the point of admitting that he'd made the inconsistent statement, so there wasn't a contradiction, and noting that the trial prosecutor in closing argument had admitted that Dustin hadn't told the police those things, so where's the harm, and that whether they were coming from a party 20 miles away or less than a mile away wasn't significant, so it wasn't a subject for extrinsic evidence. That's what the five of us spent most of the oral argument doing: parsing Dustin's words to see if it met the test for "contradiction," and whether it met the test to permit extrinsic evidence.
That's what we appellate lawyers and judges do: we deconstruct the trial, pulling out the individual parts, weighing them, measuring their significance. We do that, we tell ourselves, because all we have is the "cold record."
Every trial is a story, two of them actually, with the jury getting to decide which one it likes better. (Sometimes, the defense story is nothing more than, "they didn't prove their story beyond a reasonable doubt.") To be sure, you get a better idea of the stories if you're there, if you get to see how the witnesses look when they testify, if you can see how the jury's reacting to the testimony. You get a better sense of the flow of the trial.
But you don't need to be there to get some sense of what the stories were, and maybe as appellate lawyers and judges that's how we ought to start looking at cases. It's not easy, because we've constructed a procedure which inhibits that: everything is channeled into "assignments of error" and "issues presented," and so everybody will focus their attention on that aspect of the trial. There's an inclination to deconstruct.
But you can't lose sight of the story. The defense's story in this trial was that Dustin was a liar, and any limitation on their ability to tell their story brings into question the jury's verdict, and should be reversible error.
So how did the allied offense issue go, you ask? Not as well. At one point one of the judges asked me if there weren't two failure to comply offenses: once when he was fleeing the scene of the rear-ender, and one where he was fleeing the scene after running over Griffith. I told her that I didn't think we should try to deconstruct it that way. I guess that was my word for the day.
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