Tuesday, June 22, 2010

Seeing Is Disbelieving

I had a jury trial set for yesterday. It didn't go. One of the State's witnesses had a last minute scheduling conflict. So, we kicked the case. No, we didn't all get our files and kick them out of frustration. We rescheduled the trial. In my world, we call that kicking (to a future date).

I have had this case since the first of the year. It's a pretty serious matter. Two young men were shot several times each on the south side last August. I am pretty darn sure I have an innocent client.

In February I went to the location of the shooting to have a look around. It was very cold and snowy that day so I didn't look around much. But last Thursday as my trial preparation was gearing up, I went back to look again.

Over the course of the previous couple of days, I reviewed the statements the purported eyewitnesses gave police. And like every time I read a police report, I attempted to visualize the story the witness was telling.

In my line of work, I come across impossible stories regularly. When those stories are attempting to put one of my clients away for life, I have to attack it by all available means. Going to the crime scene is an invaluable tool in this endeavor.

I think it's possible to read a witness statement of an incident a thousand times, but never truly understand it until it's digested in the background where it happened. In this case, this was certainly true.

I don't want to discuss particulars about the current case since it still has to go to trial. But going to where it all happened and comparing statements has given me a lot to work with on cross-examination.

However, last year I was hired on another shooting case. I viewed the crime scene photos dozens of times.

In that case the shooter walked through a muddy gangway on the side of a house. All of the expended bullet shells were found near the entrance to that gangway (that's what we call the space between houses in Chicago...a gangway or if you're from the streets a "cut").

The State's witnesses were on the porch of an adjacent house. In their statements they claimed they could see the face of the shooter as soon as he came out of the gangway. Though I questioned their stories, looking the pictures didn't offer me anything to support my hunch.

Then I went to the crime scene and stood on that porch and looked over to where the shooter stood. What did I see? Nothing but a tree that extends five feet to the front of the property. When I went and stood behind it, it covered me from mid chest all the way up. But I could see the porch well enough to shoot at it.

But how did I know this was where the shooter stood? He could have jumped out into the yard exposing himself, right? Crime scene photos showed bullet strikes on the side of the porch. The boy that was shot was hit while on the porch.

I went and stood next to the porch and saw the bullet strikes. Knowing the bullets tend to travel in straight lines, I turned around 180 degrees from where the bullet hit and looked. What did I see? That tree again.

While the witnesses might have been able to see a body back there, they couldn't have seen the face of the shooter. And especially not be able to see his baseball hat and remember what it had written on it.

Whenever I go to a crime scene, I always take my trusty camera. In some instances, I end up taking pictures that are similar in scope and angle to those the evidence technicians took. But guided by my theory of the case, I always photograph additional things and cover more angles.

In a few cases, I have been able to stand where a witness claims he was.  And once there it was obvious the statement wasn't accurate. It has been very obvious.

I bet that no prosecutors visit crime scenes. I don't think detectives do it either. I don't know how anyone can litigate a serious crime without having stood in the crime scene. It's amazing at how easier the case is to understand once your eyes are pulled into the investigation.

But, I am a visual person, so take it for what it's worth.




  1. Hi Marcus,
    Very interesting analysis. Despite the lay witnesses statement of being able to see the shooter, and the common sense analysis being that their was an object obstructing the view, couldn't one infer that she is lying? I mean its common sense right? If I am standing behind a tree w/my face covered but all you see are my arms and maybe muzzle flashes how could you pinpoint to an exact T that this person was the shooter? Oh boy I imagine you are going to have a field day w/this witness....

    However would a judge be willing to grant a motion to dismiss an indictment if this lay witness perjured before a grand jury?

  2. One of the subtle points of that post was that when you go to the crime scene, sometimes it becomes clear a witness was lying. And I doubt a judge would grant a motion to dismiss an indictment as you suggested. It's very hard to prove perjury. And most laypeople don't testify before the grand jury. It's normally detectives, but there are exceptions.


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