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DEFENSE SUMMATION--PEOPLE V. JOHN DOE

by James Ostrowski
Copyright 1995 by James Ostrowski

[The names of most of the parties have been changed to protect their privacy.]

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Before I get into the case, let me dispose of some housekeeping. All three charges in the indictment are based on the confession of John. It is our position that the confession is totally unreliable and therefore we will ask you to return a verdict of not guilty on all counts.

Two lesser included offenses are available instead of murder in the second degree. These are technicalities. If you believe that John strangled Mr. Harrison, you should consider those lesser included offenses. Certainly, the videotaped statement contains evidence that John lacked the intent to kill required for second degree murder. Further, if you believe the confession, the most John is guilty of is second degree manslaughter since he caused another to commit suicide.

But please keep in mind it is our position that John didn't strangle anyone that night and therefore we ask you to find him not guilty of both lesser included offenses as well as murder, larceny and criminal possession of a weapon. All the points I am about to make argue that John is not guilty of all five charges against him.

If you find Mr. Doe guilty of any of the crimes alleged, you will be doing so because you believe his confession. Although you heard many witnesses and much evidence, the only direct evidence that Mr. Doe is guilty of anything is his own statement. None of the other witnesses and none of the other evidence corroborates Mr. Doe's claim to have strangled Mr. Harrison with a rope and taken his coat, chain, and rosary. At best, the minimal corroborating evidence presented suggests that Mr. Doe was familiar with some aspects of this case, either because he spoke with persons who were present at the scene, heard third-hand reports, or was actually present at the scene at some point.

Quite frankly, there is a reasonable doubt that Doe was even present at the scene. Given the fact that the beating was seen by several witnesses; the body laid in place for several hours before being discovered; a crowd of neighbors and reporters had gathered to watch the scene the next morning; the murder was widely reported in the press; the murder was a cause celebre in the gay community; and the police aroused curiosity about the murder by extensively canvassing the neighborhood, it is certainly a reasonable possibility that Doe learned certain facts about the murder from other people. The worst you can say about Doe from the evidence is that he may have been there, but there is a reasonable doubt even about that.

But, Ladies and Gentlemen, Mr. Doe is not being charged with being there. He is being charged with strangling a man with a rope and stealing his property. There is absolutely no corroboration of those facts. There is only the statement of Mr. Doe.

Was he confessing to a crime he had committed or was he trying to confess to an imaginary crime either to please his interrogators or to strike back at the counselors who had abandoned him or to get himself re-institutionalized somehow or get people to pay attention to him again.

How can we tell the difference between a true confession and a phony one?

A true confession has a certain characteristic--it's true and therefore, except for minor discrepancies, it will coincide with all the other evidence and all the other witnesses. A true confession helps make sense of all the other evidence. It answers questions; it doesn't raise new ones.

A phony confession also has certain characteristics:

If you take a careful look at his confession, you will find that it has all six elements of a phony confession.

False statements:

The following points I would put into the category of probably false:

Contrived statements. When I say contrived, what I mean is that a genius like Hemingway or Twain can write fiction that sounds real to us, like it could really happen. When the rest of try to make things up, well you see the results in second rate movies all the time: you sit there watching, knowing that people don't really do things like that and don't really say things like that. It's contrived.

1. The very fact that John is at Whitney and Carolina precisely at the same time his ex-lover is being beaten to death is contrived. It would make sense to have come to the scene with Harrison, but he didn't. And it would make sense to have come upon a complete stranger who had just been mugged, but he didn't. He just happens to come upon his close friend, recently beaten to a pulp, needing a friend to finish him off. And oh yeah, he saw him four hours ago.

2. He says he is standing behind the alleyway with them. How did that happen? Oh right, it's Tony and Tim, his roommates. But he wasn't with them to start with. So he not only happened upon his old friend Kevin who it just so happens is being beaten to death by his roommates Tony and Tim. What a coincidence! Maybe in a one-horse town, but not in a city of 350,000 people.

3. By the way, you may be thinking that while John knows Kevin and John knows Tony and Tim, at least John isn't claiming that Tony and Tim knew Kevin too. Not so. In the earlier statement that John never repudiated, he said the following:

"I heard one of the guys ask Kevin for money. Kevin owed a lot of money for drugs." The clear implication is that Kevin owed these men money from a previous drug transaction. Isn't that special. Everybody knows everybody else.

3. The rope in the trash dumpster. I don't know how many times I read that before I realized that the odds of there being a rope in the residential trash of that apartment building were pretty slim. Then the odds that someone could find a rope in a dark alley inside a dark shed without making so much noise that the whole neighborhood wakes up are quite small. That's contrived.

4. He gave Kevin's coat to his ex-lover, Greg Nowak. That would have been very sweet if he had actually done it.

5. I gave them the earring so they wouldn't kill me. That isn't contrived; it's bizarre!

6. All the dialogue at the scene is contrived. Let me just give you one example: Kevin allegedly says: "It hurts. Stop. Stop. Kill me Goddammit, kill me." More bizarre stuff.

7. The entire mercy killing scenario is contrived. What John apparently didn't know is that Kevin was feeling better, both physically and emotionally.

Some truth. Like any phony confession, this one has some truth in it.

1. Two black males were the assailants.

2. Kevin was badly beaten and bleeding from the mouth

3. John obviously knew that Kevin wore a brown suede jacket.

4. The rosary and chain were found in the street. None of these facts prove anything other than John had some knowledge about the incident.

To summarize, John's confession doesn't explain and make sense of all the other evidence. It doesn't answer questions, it raises them. It doesn't have the characteristics of a true confession.

In contrast, John's confession contradicts the physical evidence; contradicts the other witnesses; contains numerous uncertainties; has many contradictions; is contrived and has a few references to the truth. Which means that John's confession is a phony confession.

This conclusion is supported by the testimony of the man I think is the most important witness at this trial--Dr. [pause] Loghmanee. In a case with no eyewitness, based on a confession by an unreliable man with a long psychiatric history, the best evidence is the physical and medical evidence presented by Dr. Loghmanee.

What did Dr. Loghmanee tell us? First, with respect to the alleged rope? In cases of suspected ligature strangulation, it is standard procedure to look for trace evidence. Dr. Loghmanee looked for and found no evidence of rope fibers. He described the ligature abrasion as "thin" and said a "real thick rope" would not cause such an abrasion. He did say that a "thin" rope could cause it, but a "thin rope" is a contradiction in terms. Webster's defines "rope" as "a thick, strong cord, made of intertwisted strands of fiber." A thin rope is a cord and a thin cord is a string. Those are the plain meanings of these words as used in everyday life. All you have to do is look at this Exhibit to know that this abrasion was not caused by a rope. Much more likely is that it was caused by a thin chain such as Exhibit "C" or the gold chain Mr. Ryan said Mr. Harrison had been wearing.

Dr. Loghmanee also said there were "three parallel and crossing lines" in another part of the neck. He said these three lines were consistent with multiple ligatures. Isn't it interesting that Mr. Harrison just happened to be wearing three chains on his neck--the rosary, the silver chain in evidence, and the gold chain that Mr. Ryan said he was wearing. What makes more sense, that these neck injuries were caused by the thugs pulling on these chains during the beating or John Doe strangling Mr. Harrison three times in three different places? John's phoney confession says he strangled him with a rope for one minute--where do you get three lines out of that statement?

Now, assuming that Mr. Harrison was strangled, was he strangled by a ligature at all? Dr. Loghmanee said that a broken hyoid bone is more frequent in manual strangulation than in ligature strangulation. Similarly, he agreed that damage to the internal neck structures is likely to be more severe in a manual strangulation than in a ligature strangulation.

Now, was Mr. Harrison strangled at all? Mr. [Prosecutor] scoffed at this suggestion, but Dr. Loghmanee didn't. He said it was possible given the facts that he was not strangled to death. That's because the various signs of strangulation: injury to the hyoid bone, strap muscles and neck abrasion could have been caused by pulling on the neck by yanking the three chains during a beating by two men. Remember, John said nothing about the third chain, the gold one, so obviously, the assailants are the ones who yanked that chain off.

Let me suggest to you that, consistent with Dr. Loghmanee's testimony, the injuries to Mr. Harrison could have been caused by his assailants pulling on his chains with great force to restrain him while they were beating him or pulling on the chains to yank them off his neck to steal them. I suggest that scenario is at least as likely as the John strangling him with a rope which the doctor stated he could not confirm with a reasonable degree of medical certainty. I ask you then, can you convict a man of strangulation when there is a reasonable possibility that his alleged victim was not strangled? [Pause.]

As for the alleged conversation that Mr. Harrison carried on with John: Dr. Loghmanee stated that Mr. Harrison had received a blow to the head that caused a subarachnoid hemorrhage in the brain which can cause unconsciousness. He also stated in his own words that Mr. Harrison was bleeding "remarkably", which bleeding would increase the likelihood that Mr. Harrison was rendered unconscious. Add to that that his mouth full of blood, not to mention the pain and shock of being beaten, and it is highly unlikely that Mr. Harrison was able to speak.

By the way, another good reason to believe Harrison was rendered unconscious by the beating is aspiration of blood. He had blood deep into the recessed of his lungs. Dr. Loghmanee said the blood got there because he was trying to breathe but blood was in his trachea and being forced down to his lungs instead of air. Question: if he was still conscious, why didn't he just spit out the blood as common sense dictates. Answer: he probably was not conscious and therefore he never had the imaginary conversation with John.

Regarding the issue of whether Mr. Harrison was in imminent danger of death from AIDS, Dr. Loghmanee said and I quote: "I did not find microscopic evidence of AIDS in this case."

Dr. Loghmanee's testimony, taken as a whole, confirms that John's confession is phony. Whatever John knew about the murder, he did not know the results of the autopsy; and there was no way he could have anticipated Dr. Loghmanee's testimony in court fifteen months after the confession. Since John's confession was phony, it was inevitable that he would contradict the medical evidence in the several ways I have outlined.

WHY THE PHONY CONFESSION

I have argued that, taking the confession itself, and analyzing it, and comparing it to the other evidence in the case, leads to the conclusion the conclusion that it is a phony confession. And if it is a phony confession, it doesn't matter why the man did it. But why he lied is an interesting question and one you certainly have the right to ask.

We answered that question. He lied because that's the way John deals with problems. He was cut off from his lifeline to reality--Intensive Case Management, without which he was incapable of functioning independently. He winds up living with a couple of guys named Tony and Tim, who he thinks so little of that he accused them of murder. Then he winds up with Mickey and Juan--one is one welfare; one gets social security for alcoholism. By the day after Christmas, John had certainly reached the end of the line in his 18 day experiment in independent living.

What does he do--he goes back to his life-long pattern of telling tall tales to draw attention to himself and get back in contact with people who can help him. Dr. Joseph called it "pervasive maladaptive pattern." He first says he was a witness to a homicide; then when the police learn he lied about one of the basic facts of the crime, he panics, and takes the plunge off the diving board, impulsively, as Dr. Joseph said he could be--yeah, I did it, I strangled him.

Keep in mind that the lie that prompted his confession wasn't the type of lie designed to persuade the police he wasn't involved with the crime. It was a lie that suggested he was more involved than he actually was. What was the purpose of that lie? It had no rational purpose other than to convince the police that he actually was a witness. He must have known that Harrison was attacked on the sidewalk and that he ended up in the alley, but he obviously didn't know that the assailants carried him back there. So he lies and claims that he carried him.

So he confesses. And so poorly did this borderline retarded man appreciate the consequences of what he had just done that it is clear from the videotape that he doesn't even think he confessed to any crime at all: "It's not that I finished him off. If I would have finished him off, then I probably would have gotten a manslaughter charge."

DON'T CONVICT JOHN BECAUSE HE IS MENTALLY ILL

If you decide that John is not guilty of this crime, but are tempted to convict him anyway because you are concerned about his mental illness and strange behavior, that would be a rank injustice and I trust you will not violate your oath and take such a course of action. That would be turning the insanity defense on its head. Instead of finding someone not guilty by reason of insanity, you would be finding them guilty by reason of insanity. But John is not guilty because he is not guilty. He is not guilty because the People have failed to prove he is guilty. He is not guilty because the evidence taken as a whole indicates that he is not guilty.

The courts and the metal health authorities have full power to deal with people who are a danger to themselves or others by reason of mental illness and therefore I trust you will confine yourself to the narrow issue that you face.

Let me close by reminding you that three witnesses who know John well testified at this trial: Dr. Joseph said he makes up stories to draw attention to himself because he lacks the abilities you and I have of relating to people in normal ways. Ron Leski came to court because he believes John is innocent and he was willing to withstand an extremely embarrassing cross-examination for the Mr. [Prosecutor] so that he could come to court and tell you what he knows to be the truth.

Finally Susan Finelli, John's former landlady, testified for the prosecution. This is what she said to the best of my recollection. She said John had suddenly died his hair black and started to wear glasses because--as he suddenly blurted out to her one day--people were looking for him because he killed someone. This was classic John Doe. To avoid arousing suspicion, he dies his orange hair black and tells his landlady he killed someone. Way to keep a low profile, John. Ms. Finelli, knowing John quite well, wisely told you: "I didn't believe him; that's just John."

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THE VERDICT--In May, 1994, an Erie County Court jury deliberated for about seven hours before reaching a verdict of not guilty.