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Monday, April 27, 2009

Snowden revisited

I've noted before that my life in court often reminds me of the "Snowden" reference in "Catch-22". This week provided another example.

I did a prelim for another gang shooting case. As in the one I did the week before, there were 3 defendants. Like the others, they too have nicknames, gang monikers the cops call them. I don't know how these kids get these names. Some of them are meant to make them feel tough - like "Diablo" or "Evil". Others are more descriptive - "Gordo" for instance. I once had a client named "Mousy" whose protruding ears made him look as if he was wearing a Mickey Mouse hat.

We'll call these 3 "Antsy" "Bitsy" and "Cutesy" just for this occasion.

Witness 1 gets on the stand. He was friends with the 3 defendants. He testifies that he drove them to a flyer party one night. Walking from the car, he saw a gun in Cutesy's waistband. At the gate, an argument ensued when searches were requested. Cutesy gave the gun to Bitsy who fired shots into the air, then gave the gun to Antsy who fired straighter, killing a young man standing behind the gate. (This was new evidence, since Witness 1 had neglected to mention Cutesy's presence when interviewed by police. He explained this easily: "I forgot".)

Witness 2 was behind the gate. He testified that Cutesy took the gun from his waistband, fired the shots in the air, and then shot his friend. He didn't recognize the other 2 defendants. (This came as a surprise to the DA and detective as well as all the defense lawyers, not to mention Antsy & Cutesy, because Witness 2 had never identified Cutesy before court.)

Witness 3 was also behind the gate. He saw Antsy shoot the victim (which was consistent with his previous statements).

During a recess, I smirked to the DA that her witnesses were not all that reliable, considering that they contradicted each other and their previous statements. She seemed curiously unconcerned. "It's a gang case," she giggled, "It doesn't matter who did the shooting. They're all guilty and they'll all get the same life without parole sentence."

Of course, she was right. The old rules about discrepancies in eyewitness testimony diminishing the strength of a case are out the window in gang cases for two powerful reasons. First, jurors are so prejudiced about gangs (for substantial societal reasons, I admit) and are likely to overlook little problems like lack of reliable evidence. Second, the sentencing scheme has been toughened in gang cases so that issues like who did the shooting make little difference in the length of time to be served.

So, the defense lawyer's skills and knowledge of the law and traditional rules of evidence are futile. Like Yossarian, I can band-aid the nicks and cuts while my client bleeds to death.

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