Looking for “white spaces” in the prosecution’s case

Jamison KoehlerDUI and Driving Offenses, Trial Advocacy

As a junior public defender in Philadelphia, I was always impressed when watching an experienced criminal defense lawyer conduct a cross-examination.

I am thinking of Brian McMonagle, who at one point represented Bill Cosby.

Or Scott DiClaudio, who is now a controversial judge in Philadelphia.

Or Jamie Funt who, as far as I can tell, is still practicing criminal defense in the city of brotherly love. 

I would look at the police report they were working with and think, my goodness, the government’s case appears to be airtight. 

And yet they were always able to find some crack to exploit.  They were also able to make this crack the central focus on the hearing.  It was suddenly as if nothing else was significant. 

Moreover, whenever I was representing a client in a multi-defendant case, I always wanted to do my cross-examination first. 

Given my inexperience, I was concerned that all the good questions would have been taken by the time my turn came around.  And I would be left looking like an idiot with no questions to ask.

I do not feel that way anymore. 

In fact, I now like to do my cross-examination last in any multi-defendant case. 

First, this gives me the opportunity to clean up any problems that may have come up during my colleagues’ cross. 

More importantly, armed with more information from having listened to my colleagues, I am now able to conduct a far more detailed and nuanced cross-examination:  The easy questions have been asked.  Now come the good ones.

It is too easy to let prosecutors frame the debate, focusing the judge or jury’s attention on the things that make their case. 

The natural inclination is to re-hash the facts that came out during the government’s case-in-chief in a clumsy attempt to raise doubts about them.  For example, if you are Cristina Gutierrez, Adnan Syed’s lawyer in the case made famous by the Serial podcast, you repeat the exact same facts but with a sarcastic tone – as if tone alone will bring the jury to your way of thinking.

Instead, what I have learned from the experienced lawyers is, for everything the government introduces, you focus on what the government is NOT saying.

This is, as Maryland defense lawyer Lenny Stamm puts it, focusing on the “white spaces” in either the police report or in the government’s case more generally.

For example, for everything that is included in the police report in a DUI case (odor of alcohol, red eyes), there are a million things that are not there.  My client produced his driver license?  He had no trouble getting out of the car?  His speech was clear?

On and on until you wear out the court’s patience.   

And if the officer tries to claim that, for example, your client’s speech was in fact slurred, now you can question the officer’s thoroughness in preparing the police report.  This is a pretty significant piece of evidence in a DUI case?  And you didn’t think it worthy of inclusion? 

The late offering of such evidence also undermines the officer’s credibility:  It is only now that you are telling us this? 

More recently, I had a gun case in which officers claimed they could see the L-shaped outline of a handgun tucked into the waist area of my client. 

Yet the officers’ actions as captured on the body worn camera files were completely inconsistent with such an observation. 

For example, neither officer uttered the code word (“1-800”) that is typically used to alert other officers to the presence of a firearm.  You did not see fit to alert you fellow officer to potential danger? 

Nor did either officer call for back-up or mention the presence of the firearm when they returned to the police car to follow my client. 

The crowning glory, of course, was when one of the officers expressed surprise when the firearm was actually recovered. 

Thank goodness for body worn cameras. 

In the old days, without an independent source of information on what transpired, we had to take the officers’ word for everything.  In that case, maybe you were left – like Cristina Gutierrez — to repeat everything the officers just testified to, but this time with a sarcastic tone.