Triple Crown: Third Consecutive Acquittal At Trial

Three weeks ago, in Kings County Supreme Court I gave an opening statement on PSNY v. TD (initials used as the client was fully acquitted and the matter is now fully sealed). The charges were Attempted Murder 2, Assault 1 and Criminal Possession of a Weapon in the Second Degree. Client was looking at 5-25 years incarceration in the event of a conviction, followed by several years of post-release supervision.

The longer I try cases, the shorter and less specific my opening statements become. I never want to promise something that I can’t deliver on at the conclusion of the case. If there is one thing I’ve learned, juries remember and juries pay attention. I opened on the prosecutors’ burden of proof, reasonable doubt and the client’s presumption of innocence. The prosecutor, onto other hand, did the typical, detailed opening which included banging on the table to demonstrate how three shots that our client allegedly fired rung out.

After my opening, I got a few baffled texts from the prosecutors who were there to watch my opening asking “Fast, what’s the defense here?” My response across the board was – “I don’t know yet.” Having tried 25+ cases to verdict, I will be the first person to tell you that trials are unpredictable. Something really wild, unexpected and crazy always happens. Opening on a certain defense theory may not pan out, because depending on the trial testimony, you may need to shift gears and argue something else in your summation. Underpromise and over-deliver.

Unbeknownst to me, the main eyewitness to the crime refused to willingly come to court to testify. The DA’s Office had to get a material witness order to bring him to court, which is essentially an arrest warrant. Two separate teams of our investigators were unable to speak to this eyewitness, but I didn’t know the prosecutors were getting the same treatment. While he did not want to be there, the eyewitness testified substantively, while keeping his winter coat on. Eyewitness testified that Client shot his next door neighbor, over a money dispute, all while the eyewitness was washing the car right in front of the house and saw the whole thing.

Cross examination was rough. The eyewitness didn’t like my client and by extension, liked me even less. He was combative, hostile but overall, not horrible for the prosecution.

On summation, I argued that there were MANY issues with the case. Mainly, that the eyewitness’ testimony was not supported by any other witness, forensic evidence, physical evidence and perhaps more tellingly . . . there was an 8 minute delay in calling

911 after this shooting happened. No ballistics were recovered corroborating the three shots that the Client allegedly fired, with the exception of the bullet lodged inside the neighbor. Additionally, the neighbor who got shot has been telling the police from the very beginning, he had no idea what happened or who shot him.

I did a summation PowerPoint for the first time in Kings Supreme. If you have ever done a trial or a hearing with a PowerPoint in that building, you know it’s similar to being in a movie theatre. It’s very dark, almost pitch black and the only source of light are the slides or the videos that you show the jury. The last slide that I showed was a still of a video from the body worn camera of one of the police officers that showed the outside of the house where the eyewitness said he was washing his car.

Except, there was no car in front of the enclosed yard where the eyewitness said the shooting happened and where he was washing his car. A motorcycle was in that very spot. The two cars that were outside were maybe 12-15 feet away from the yard entrance and if the eyewitness was truly washing the car, there is no way he could see what he said he saw because the yard was enclosed by beautiful, green hedges that were about 10 feet tall.

Jury acquitted the client 4 hours later, after asking for some read backs and for some exhibits. I cried at the verdict, not because of the client, not because I won, not because I could finally get some rest after doing this trial marathon for 2+ weeks. It was because of an 11-year old boy, raised by my client, a single father, who was no longer going into foster care if his sole parent and caretaker got incarcerated and sentenced to 5 to 25 years. That was my contribution of good to the universe.

What happened with the neighbor and who did the shooting? I’ll never know for sure, but jury found that the prosecutor didn’t carry their burden in convincing them that it was my client. Whatever the defense was, it was successful. In a county where the prosecutor has a 90% trial conviction rate, getting a full acquittal is a hell of a feeling. I sure love Brooklyn juries.