High profile cases have been proving me wrong lately.  Kind of. 

One of my big gripes with film and television crime shows is their common depiction of a criminal suspect or defendant talking to police while his lawyer sits idly by.  This is a common complaint of mine because criminal defense lawyers almost NEVER let their clients speak to police, and for good reason.  Criminal lawyers know that the best evidence against someone is often their own words. 

No matter how clever someone thinks they are, there is almost never anything they can say to help themselves once  the police have targeted them as a suspect, and certainly not once hthey have been charged. 

That said, Jerry Sandusky, a former Penn State football coach, who has been charged with 40 counts of molestation against 8 boys, spoke to sports reporter Bob Costas, this week.  During the interview, Sandusky admitted almost all of the allegations against him short of the ultimate sexual acts.  Most reports of the interview concluded that it did not help him at all, at least in the court of public opinion. 

Chances are good that if Sandusky goes  to trial, the prosecution will play the tape of his interview to the jury.  The jury will likely see Sandusky's words in a bad light as well, and it will come back to bite him. 

This is exactly what happened recently during the involuntary manslaughter trial against Michael Jackson's doctor, Conrad Murray.  I used that case as an example of why suspects should not, and usually do not once they have a lawyer, speak to police.  Speaking to a reporter is not any different.

Sandusky's lawyer has gotten a lot of flack as a result of letting Sandusky do the interview.  Of course, if a client insists on talking, there's really only so much a lawyer can do.  And who knows how things played out between Sandusky and his attorney.  At the end of the day, however, this case stands as yet another example of why suspects and defendants should not talk, and, more importantly, why criminal defense attorneys almost never let that happen.

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The recent news about Jerry Sandusky, a Penn State football coach accused of molesting at least eight boys over a period of years, parallels stories from the 1990s of child molestation within the Catholic Church. 

In both cases, there was a man (or several men in the Catholic Church) accused of repeatedly molesting and even raping young children.  In both cases, reports of the molestation reached the man's superiors. 

In both cases, the superiors took minor measures, apparently to try to make sure no further acts of molestation occurred in their places of business.  At Penn State, the coaches and other superiors of Jerry Sandusky told him not to bring any more young boys to the college, where many of the attacks allegedly took place.  In the Catholic Church, priests who had molested young children were often transferred to other parishes. 

In both cases, none of the men who supervised the accused molesters contacted the police.  None of the men in charge acted to protect the children who had been abused.  The men in charge covered up for the accused molester, sweeped the problem under the rug, and went about their business, as if nothing had happened.  As if a child had not been sexually abused and likely scarred for the rest of his life.  As if more children would not be harmed because of their failures.

In both cases, the alleged sexual abuse was allowed to go on for many years.  In both cases, the failure of any one of the men in charge to contact the police, insulated the molester from any real consequences, and allowed more victims to be abused.  At least in the case of Penn State, two of the men who failed to step up and do the right thing have been charged for their failures. 

I'm not sure what this culture of silence and protecting abusive men at the expense of children is about.  I have to wonder if a woman had been involved somewhere along the way, whether it would have taken so long for these abuses to come out.

Jerry Sandusky, the Penn State coach accused of molesting at least eight young boys is getting off scott-free, at least for now.  Sandusky was indicted on November 4, 2011 of 40 counts related to child molestation.  

Sandusky retired from his Penn State coaching job in 1999 and retired from The Second Mile charity last year.  He has been receiving a pension of almost $60,000 per year since 1999.  That will not be affected by his criminal charges.

When Sandusky first appeared in court, the prosecution asked for $500,000 bail and electronic monitoring.  Bail is intended to ensure a criminal defendant appears in court to face the charges.  Generally, the more serious the charges, the higher the bail.  Also, if a defendant has the resources to pay, he will usually be assessed higher bail.  That will ensure he comes to court instead of fleeing.

Sandusky's bail was set at $100,000, unsecured.  He was not required to be electronically monitored.  The bail amount is lower than the prosecution requested, and is quite low considering the crimes he is accused of and his resources.  Even more surprising is the fact that his bail is unsecured. 

Normally when bail is set, the defendant has to put up the amount of the bail for the court to hold.  Or they may give a bail bondsman 10% of the bail amount, and the bail bondsman ensures the court will receive the rest if the defendant does not show up.  If the defendant does not show up in court, he forfeits all the money he posted. 

When bail is unsecured, however, the defendant does not need to front any money.  He basically promises to pay the bail amount if he does not appear.  However, the defendant is already required to appear, so  it does not seem that an unsecured promise to pay would do much more to ensure a defendant's appearance.

The defendant is already required to appear by law, and a judge can issue an arrest warrant if he fails to appear.  An additional promise to pay an unsecured bail amount does not seem like any more of an incentive to appear. 

Sandusky can therefore continue to live at home, go about his daily life, continue receiving his pension, and need not pay a penny in bail as long as he appears.  That is highly unusual for someone accused of such serious crimes.

It is no wonder that people are crying foul now that they have learned that the judge who set Sandusky's bail has donated money to and volunteered for his charity, The Second Mile.  Judges have a duty to recuse themselves from a case if there is even the appearance of an impropriety.  

If Judge Leslie Dutchcot did volunteer for or donate money to The Second Mile charity, she should recuse herself from Sandusky's case.  This is particularly so since Sandusky got access to his victims through The Second Mile charity, according to the indictment.

Closing arguments are set today in the trial of Michael Jackson's doctor, Conrad Murray.  This is the point where each side will pull together all the evidence the jury has heard, and explain why the evidence points to guilt or not.

Closing arguments are often the most exciting part of a trial because this is the only time that the lawyers are permitted to "argue."  They must confine their arguments to the evidence that was admitted at trial, or reasonable inferences that can be made from that evidence.  The lawyers must also tailor their arguments to the law that the jury is instructed to apply.

Procedurally, the prosecution goes first.  This is because the prosecution has the burden of proof.  The prosecution must prove the defendant guilty beyond a reasonable doubt.  During closing argument, the prosecutor will explain how the evidence proves the defendant guilty.

The defense then argues why the evidence does not prove the defendant's guilt beyond a reasonable doubt.  The defense attorney may even argue that the evidence demonstrates innocence, although such argument is rare.  Usually, the defense strategy is to poke holes in the prosecution's case, bit by bit, to show there is a reasonable doubt about guilt.

Finally, the prosecution is permitted a rebuttal argument to respond to the defense.  Again, because the prosecution has the burden of proof, they are permitted the last word.

In the end, however, the jury's decision must be based on the evidence and the law.  The attorneys' statements and arguments are not evidence.  They are merely provided as an attempt to guide the jury in its decision.

Several experts have testified for both sides in the manslaughter trial of Michael Jackson's doctor, Conrad Murray.  There are two basic, and competing, goals when an attorney cross-examines an expert witness.

Generally, the side presenting the expert will have spent considerable time laying a foundation for the expert witness's expertise:  their credentials, education, publications, and experience in the field about which they are testifying. 

The opposing side may try to attack the expert's credentials.  Maybe they have book knowledge, but little real-world experience.  Perhaps their studies have been on a related subject but not directly about the matter in dispute at trial.  Regardless, to the extent possible, the opposing attorney will try to minimize the expert's impact by challenging his or her expertise.

Before doing that, however, the opposing counsel should try to use the expert to advance his or her own case.  For example, if a defense expert can offer anything in support of the prosecution's case, the prosecutor should try to get that information before the jury.  It is very powerful evidence for a witness engaged and called by the other side to give favorable testimony for your case. 

Eliciting any favorable testimony should be done before attacking the expert's testimony because the impact of the expert's testimony will be lessened after he or she has been discredited (hopefully).

The prosecution is expected to rest today in the trial of Michael Jackson's doctor.  What does it mean when the prosecution "rests?"  It basically means the prosecution has finished presenting the evidence it has to try to prove the defendant guilty.  It has finishind its case-in-chief.  The defense then has the opportunity to put on evidence if it so chooses. 

Unlike the prosecution, the defense in a criminal trial need not put on any case at all.  This is because the prosecution has the burden of proof.  To convict someone, the prosecution must prove the defendant is guilty beyond a reasonable doubt.  Here, the prosecution must prove, beyond a reasonable doubt, that Dr. Murray committed involuntary manslaughter against Michael Jackson.  (See prior posts here and here for more about the involuntary manslaughter charges.) 

Once the prosecution has presented all the evidence it believes proves the defendant guilty, it rests its case.  The defense then has the option of putting on its own case.  However, the defendant need not do anything.  He may simply attempt to poke holes in the prosecution's case, and argue to the jury that the prosecution did not meet its burden of proof. 

If the jury has a reasonble doubt, whether based on weaknesses in the prosecution's case or the strength of the defense evidence or both, it must acquit.  Although they need not do so, Dr. Conrad Murray's defense attorneys have indicated they intend to call witnesses in his defense.  If Dr. Murray chose to testify, that would also happen during the defense case. 

This week in the manslaughter trial against Michael Jackson's doctor, the prosecution showed a photo of Michael Jackson's dead naked body.  News reports were that it was a shocking moment in court, with audible gasps and at least one spectator leaving the room.  Why was the prosecution allowed to admit the photo?

In a homicide case, the prosecution must prove that the victim is dead and that the defendant is responsible for that death.  Photos or sketches or diagrams are often introduced.  They are generally relevant to show the person is dead, and sometimes to show how they died or did not die.

Unless there is some reason to exclude, evidence that is relevant to an issue in the case is generally admissible.  Evidence is relevant if it has some tendency to prove the defendant committed the charged crime.

Even relevant evidence can be excluded, however, if it is unduly prejudicial, repetitive, confusing, or will take a long time.  Often, crime scene photos or dead body photos will be excluded as unduly prejudicial.  In other words, any value the evidence may have of proving a fact is substantially outweighed by prejudice to the defendant.

If a crime scene photo is especially gruesome, it may be excluded.  The concern is that the jury would be so upset by the photo that they would judge the defendant guilty based on emotion rather than evidence.  It is up to the judge to determine whether a photo will be admitted in a particular case.

Dr. Conrad Murray spoke to the police a couple days after Michael Jackson died.  Those statements were recorded, and the recording was played for the jury in his manslaughter trial today.  Why were such out-of-court statements admissible?

Generally, a statement made to another person outside of court, is inadmissible as hearsay.  The idea is that what someone told someone else at some other time is not subject to cross-examination, and is therefore unreliable.  There are, however, many exceptions to the hearsay rule.

One exception is called a "party admission" or an "admission by a party-opponent."  When a party to a court proceeding, a criminal defendant in this case, makes a statement to someone outside of court, those statements are allowed to be used against him in court.  This is because the person who made the statement - the defendant here - can testify to explain or deny the statement. 

It is important to note that only the prosecution can introduce a defendant's prior statements under this exception.  A defendant may not introduce his own out-of-court statements.  This is to prevent the defendant from presenting his story to the jury without undergoing cross-examination. 

To ensure the jury has a clear picture of what was said, however, the defendant may instroduce part of the statement if the prosecution presented only part of the statement.  This is called the rule of completeness.

Miranda and the Fifth Amendment right not to incriminate oneself may play a role as well where the statements sought to be introduced are a defendant's statements to the police.  But that is a different topic for another day.  See my prior related post about why someone suspected of a crime should almost never talk to the police.

American college student Amanda Knox was tried and convicted of murdering her roommate and British exchange student, Meredith Kercher.  Knox and Kercher were both studying in Perugia, Italy.  Knox and her boyfriend, Raffaele Sollecito, who was also convicted of the murder, have appealed their convictions.  The appeal is now being considered.

The Knox case highlights a few of the differences between the Italian appeal process and the American apellate system. 

First, in Italy, the parties are allowed to present new evidence to the court on appeal.  In Amanda Knox's case, experts testified about flaws in the DNA evidence.  In America, an appeal strictly reviews what happened in the trial court.  No new evidence is permitted.  If new evidence in the case is uncovered, it may be brought in a writ of habeas corpus.

Second, the defendants in an Italian appeal are permitted to make statements.  Knox proclaimed her innocence and pled with the jurors for her freedom today.  Such statements are unheard of in an American appeal, or even at trial. 

On appeal in America, the attorneys for each side present legal arguments primarily in written briefs.  The attorneys may then give oral arguments to the court, but even that is sometimes optional.  Just as there is no new evidence permitted, no witnesses or statements may be heard.  Even in an American trial, a defendant may not make a statement unless he or she testifies, as any other witness, and submits to cross-examination by the other side.

Finally, an Italian appeal is decided by eight "jurors."  The jurors consist of six members of the public and two judges, including the judge who presided over the appeal.  In America, an appeal is decided solely by judges.  There are no jurors involved.  There is usually a panel of three judges in the intermediate appellate court.  There may be as many as seven or nine judges in the highest court.  The California Supreme Court has seven justices, for example, and the United States Supreme Court has nine.

In short, an Italian appeal is more like a second trial, whereas an American appeal is a strict review of the original trial.

Earlier this week on Dr. Drew's CNN show, Nancy Grace said Michael Jackson's doctor, Conrad Murray, should have been charged with "murder one."  Murder one is, of course, a short-hand term for first-degree murder.  Grace went on to explain that murder one did not require an intent to kill, only an intent to do the act that resulted in death.  She stated, "It's very confusing, but murder one requires intent to commit the act – not to kill."  Nancy Grace was wrong.

In California, first-degree murder, or murder one, requires the prosecution to prove and the jury to find, that the defendant acted "willfully, deliberately, and with premeditation."  The key word here is "willfully."  Willfully in this context is explicitly defined as an intent to kill. 

Jurors considering a first-degree murder charge are instructed, "The defendant acted willfully if he intended to kill."  Thus, to convict someone of first-degree murder absolutely requires an intent to kill.

Nancy Grace may have been thinking of the requirements for second-degree murder.  Second-degree murder in California can be found with either an intent to kill or intentionally doing an act with a conscious disregard for human life.  This is a state of mind called implied malice, which I discussed a couple days ago. 

Although my opinion on the propriety of charging Dr. Murray with murder differs from Nancy Grace's, I am more concerned with making sure people know the truth about our laws.