And the Sea Will Tell (87 page)

pp. 370–371: Reducing everything to writing prior to trial.

I have found that many ideas, thoughts, and concepts do not lend themselves to easy articulation. But they can be mastered if one invests the necessary time. There is a more obvious danger of not reducing virtually everything to a yellow pad. Almost invariably during cross-examination or final summation in a complex case, since a lawyer has virtually no time in court to pause and cogitate, he is simply going to omit many points, some of which may very well have been crucial to his client’s cause. How many lawyers walk out of court every day muttering, “Gee, I forgot to ask this question, I forgot to argue that point”? When every point a lawyer wants to make is on his yellow pad, this will not happen, of course.

In my opinion, for whatever it’s worth, the majority of lawyers trying cases today have grossly inadequate notes, and therefore are not adequately prepared. There are hundreds of pieces of information in their heads, but because they are human beings, not computers, of necessity the information is disorganized and undigested, and a dangerously high percentage of it is ineffectively presented when it leaves the lawyer’s lips in court. The sequence should not be from the lawyer’s mind to the jury. It should be from his mind to the yellow pad—for organization, digestion, polishing, and review—and only then to the jury.

p. 382: Effect of an opening statement.

There are distinct advantages to giving an opening statement, perhaps the most important of which is that it gives the lawyer an extra opportunity to sell his case to the jury and predispose them to his side at the beginning of the case. But an opening statement should not automatically always be given, for there are some drawbacks, particularly if one is a defense attorney in a criminal trial, where the prosecution’s right to pretrial discovery is very limited. First, the lawyer is divulging to the opposition, right at the start of a case—one that might last weeks or even months—the heart of his case, sometimes even the intricacies of it. And this, of course, gives the opposing lawyer so much more time than he would normally have to work up an effective response. Secondly, when your key witnesses testify to important points, you want their testimony to have maximum dramatic impact. And if the jury has already heard the gist of the story from the lawyer, that impact might be diminished.

In recent years, the opening statement has taken on, in my opinion, inordinate importance in the eyes of trial lawyers, some claiming it’s the most important part of the trial. The rationale is that first impressions are usually lasting impressions. Indeed, at least one survey has shown that 70 percent of jurors who formed an opinion in favor of one side at the end of the opening statement voted for that side at the end of the trial. However, no one apparently bothered to consider that maybe the reason was that side simply had the better case, as was apparent even during opening statement.

Implicit in the notion that an opening statement is enormously important is the false assumption that juries are, as one English barrister described them, “twelve people of average ignorance,” and that without having yet heard one single solitary word of testimony, they’re going to be permanently (or at least substantially) influenced in their view of the case. On grounds of pure logic, this would appear to be very unlikely. Moreover, the jury knows that the lawyers addressing them are taking the positions they are because they are being paid by their clients.

Although I usually elect to make an opening statement, if, in a hypothetical situation, the other side could make one and I couldn’t, I’m confident that just these few words would
almost
be adequate to insure that the jury started the trial with an open mind: “You’ve heard opposing counsel tell you what he
intends
to prove during the trial. Well, as you folks know, there are always two sides to every story, and I would respectfully ask that before you form any judgment, you listen not just to their side, but to the side
we’re
going to present during the trial.”

Even when jurors
do
form an opinion during the opening statement, it certainly is not etched in marble, and can be overcome by actual evidence and testimony from the witness stand.

Lawyers making opening statements are like two opposing coaches talking on television before a Super Bowl game about what their teams hope to accomplish on the field of play. Jurors, I’ve long thought, are in the position of TV viewers who tire of prelims and want the game to begin.

If a lawyer does make an opening statement, he should make sure he doesn’t bite off more than he can chew, that he doesn’t promise the jury he will prove something he may be unable to prove. He must be careful in his statement so he doesn’t have to contradict himself or retract by trial’s end. It is very effective for opposing counsel to point out to the jury at the conclusion of the case that the lawyer said in his opening statement he was going to prove something and he failed to do so. It hurts his credibility in the eyes of the jury and can adversely affect their perception of his entire case.

p. 396: An alternative to the “why” question.

An alternative to the “why” question is to save for final argument the implications of the witness’s testimony, but by that late point in the trial, the witness’s reason for his conduct is a matter for competing speculation by the lawyers, not court record. Moreover, the opportunity to make the witness “look like a liar” before the jury’s eyes when he is trapped has been lost.

p. 435: Schroeder’s line of questions would be calling for hearsay.

When used in a legal sense, “hearsay” has a very specific meaning. Hearsay is a statement made outside of court (i.e., not from the witness stand at the present proceeding) that is offered into evidence to prove not merely that the statement was made, but that it is
true
. If, for example, a witness intended to testify that “Ray told me he saw Michael kill his wife,” Ray’s statement would be inadmissible hearsay if offered to prove that Michael killed his wife. On the other hand, if a witness testifies at a competency hearing over Grandpa’s will that “Grandpa told me the sky was falling,” Grandpa’s statement would
not
be hearsay, since it would be offered not to prove that the sky was falling, but to prove that the old man had made the statement.

Almost all hearsay consists of oral or written statements, but even conduct, when intended as a substitute for words (e.g., nodding one’s head in answer to a question, or identifying a person by pointing), is a hearsay “statement.”

It is commonly stated that it is hearsay when a witness relates what someone else said, but an out-of-court statement by the witness himself can also be hearsay. An out-of-court writing by a witness, for example, can be hearsay, and if certain requirements are not met under an exception to the hearsay rule called “past recollection recorded,” the writing will not be admissible.

The hearsay “exceptions” apply to situations in which the out-of-court statements carry a likelihood of trustworthiness, such as deathbed declarations and self-incriminating statements of a defendant (people normally do not incriminate themselves falsely). There are, in fact, so many legal exceptions to the hearsay rule (twenty-two, to be exact) that a number of legal scholars feel the tide is running in the direction of eventually abolishing the rule, and like most European countries, allowing hearsay in, to be given whatever weight the jury feels it is entitled to.

Although some of Mac’s out-of-court statements to Shoemaker would not be hearsay (e.g., “I guess they’ve made a truce” was not offered to prove that there was, in fact, a truce), the key statements “There is a dinghy coming over to the boat” and “Let me go up topside and see what’s happening”
were
offered to prove that these statements were true; that is, that Buck and Jennifer came to the
Sea Wind
on the evening of August 28, 1974. Although it is unlikely that the spontaneous-declaration exception to the hearsay rule would apply (the precipitating event wasn’t so
startling
as to produce an
excited utterance
under stress), the key statements may have been admissible over my objection under the “present sense impression” exception to the hearsay rule—Mac’s statements describing what was taking place were contemporaneous with the events he was describing.

p. 441: Prosecution’s disbelief that the hole in the
Sea Wind’s
hull was caused by a swordfish.

The prosecution attempt to imply throughout most of Jennifer Jenkins’s trial, as well as at the Walker trial, that the hole was probably caused by a bullet was curious. On October 30, 1974, the day after Jennifer’s arrest and Buck’s escape in the Ala Wai harbor, FBI crime lab experts combed the interior and exterior surfaces of the
Sea Wind
for traces of blood, bullet holes, or any other evidence that a crime had been committed. Nothing was found, but no reference to the search for physical evidence appeared in any of the FBI documents on the case furnished to the defense by the U.S. Attorney’s office. This information first surfaced in a telephone conversation with Calvin Shishido on November 28, 1988. “The
Sea Wind
was clean,” Shishido said.

p. 476: The need to argue innocence as well as reasonable doubt.

A defense attorney has a serious dilemma when he
only
argues to the jury that the prosecution has not met its legal burden of proving guilt beyond a reasonable doubt. The baggage of such an argument can be that he has thereby, by implication, conceded his client is
not
innocent. In other words, if his client had absolutely nothing to do with the crime, and is completely innocent, it sounds almost inappropriate to only argue that
his guilt
has not been proved beyond a reasonable doubt. Though there is no
legal
implication of guilt in a reasonable doubt argument, as a practical matter it tends to go in that direction, though by analogy, not as conspicuously as a plea of not guilty by reason of insanity. While there is likewise no legal concession of guilt in the insanity plea, that is the precise effect of such a plea. Again, if a defendant had absolutely nothing to do with the commission of a crime, a plea of not guilty by reason of insanity is completely inappropriate. The plea in effect tells the jury, “I’m guilty, but give me a break because I’m crazy.”

Suffice it to say that it is advisable, and in fact nearly always essential, for defense counsel to argue his client’s innocence. Not only does a jury have to vote not guilty if they believe the defendant is innocent, but a synergism is involved. Even if they don’t ultimately conclude he is innocent, the evidence which is presented to prove innocence will normally also go in the direction of helping to establish reasonable doubt. The approach almost necessarily has to be broken down into two levels. At the first level, counsel can argue that the evidence proves, or at least points to, his client’s innocence. Defense counsel can then go on to the second level and argue that the prosecution’s case against his client was so weak that even if one or more jurors nonetheless believe that he did commit the crime, they certainly should not believe in his guilt beyond a reasonable doubt. And therefore, under the law, they
still
are duty-bound to return a verdict of not guilty.

p. 481: Problems with character defense.

There was a more subtle problem I had. The premise of the character defense is the oft-repeated notion that “people don’t change.” And originally, the language I had prepared for my summation used these words. But I knew that Enoki, if alert, could argue in his rebuttal that people do change, and cite as one example the also oft-repeated political aphorism that “power corrupts.” He could use other, more down-to-earth examples, such as people observing that those who were once their friends “don’t know them anymore” once they rise far above them (for instance, a co-worker who becomes a supervisor or president of the company). I had an answer to this, but unless I raised the issue myself, it was one I wouldn’t have a chance to use (since after my argument that people don’t change, I would not have the opportunity to respond to his rebuttal), to wit: perhaps power doesn’t corrupt or change; perhaps it only
reveals
. For instance, the “friend” who becomes the company president and doesn’t know his former friends anymore maybe never really was a friend, i.e., people, after all, don’t really change. Changed circumstances merely reveal what was latently always there. But since this argument, obviously, could also be used against Jennifer (that is, the claim could be made that the circumstances on Palmyra brought out the latent worst in Jennifer), I decided to take the “people don’t change” language out of my summation and leave in language that people don’t act out of character. Of course, this
presupposes
that one’s character doesn’t change, but the “change” issue is disguised and I gambled that Enoki wouldn’t be alerted to it.

pp. 503–504: My “prosecution” of Buck Walker.

Regarding my intention to prosecute Walker at Jennifer’s trial, not only did I immediately suspect that I would have trouble doing this, but in discussions with Elliot Enoki, he expressly told me he would oppose any such effort of mine. This is why I thoroughly researched the legal defense of “Commission of Crime by Third Person.” Curiously, most “third-person” cases are around the turn of the century, many in the mid-nineteenth century in the South. The basic rule is that such third-person evidence is inadmissible on the public policy ground of undue consumption of time—a trial could go on indefinitely if the defendant could accuse one third party after another. However, where it can be shown not only that a third party had a motive (motive alone isn’t enough) to commit the crime, but that there is “substantive evidence” connecting him to it, most cases hold that such evidence is admissible. Although Enoki had promised a fight, surprisingly, when the trial started, I was able to get in virtually everything I wanted to without objection. Frequently, Enoki himself offered the evidence, such as Buck’s obvious lie that he won the
Sea Wind
gambling. It was as if Enoki, in the absence of my bringing the issue to his attention each time it came up, lost sight of it.