SUMMATION IN MANSLAUGHTER CASE

[Copyright 1995--by James Ostrowski--all rights reserved]

SUMMARY OF FACTS--Smith was stabbed in his apartment by Jones. Jones claimed the stabbing was in self-defense. Smith's roommate, Clark, the only other eyewitness, told the jury that the stabbing was unprovoked. At the first trial in 1992, Jones was acquitted of murder and convicted of manslaughter. An appellate court based on a procedural error in the first trial, ordered a new trial.

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

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Ladies and Gentlemen, you have a very difficult job to do and I don't envy you. You have to decide this case, which is something that Justice _________ does not have to do and I don't have to do and Ms. ____________ does not have to do. And either way you decide it, you will have some doubts. If you decide that Mr. Johnson is guilty, you will have some doubts about whether you did the right thing. And if you decide that he is not guilty, you will wonder whether that was the right decision. I wouldn't want to be on a jury because I wouldn't want to make that choice.

But let me suggest to you that the way our system is laid out and the way it has developed over hundreds of years does provide you with a road map to reach a just decision. In other words, our justice system does not put you in that jury room with no tools to work with. It does give you some very good tools because it realized that you have a very big job to do and you shouldn't have to do it all by yourselves.

What are those tools? First, Mr. Jones is presumed to be innocent. The prosecution must come in here and rebut that presumption with credible evidence. The prosecution has the burden of proof. The prosecution and the police started this case by filing charges against Mr. Jones. Since they started it, it is their job to finish it and if they don't, it is your job to return a verdict of not guilty. It is a very simple and common sensical rule of justice. Those who accuse must prove or lose. the presumption of innocence and the burden of proof are tools you should and can use up in that jury room.

What is the burden of proof on the prosecution? They must remove all reasonable doubt from your minds about Mr. Jones' guilt. If a single reasonable doubt remains, the law asks you, in fact requires you, to return verdict of not guilty. The reasonable doubt rule is probably the most important tool the law allows you to take into that jury room. If you use that tool, you will return a just verdict.

But the justice system isn't all abstract principles, noble though they are. The system asks you to bring some of your own tools into that jury room. Your common sense. Your knowledge about how this world works and how the people in it behave. I promise you that if you will only bring your own tool of common sense into that jury room, and use that common sense along with the tools of burden of proof and reasonable doubt, you will return a verdict you can live with the rest of your lives.

Let's talk a little common sense. Common sense says that there are two reasons why a person might panic and hide when the police come to arrest him. One, he's guilty and doesn't want to go to jail. Two, he's innocent and doesn't want to go to jail. Think about it. Is there anything worse than being arrested and jailed merely for acting in self defense?

Common sense says that nothing Martin Jones could have said to the police that night was going to result in his not being charged with a crime. Heck, they arrested him before they even spoke to him, without checking into the background of Mr. Smith, with a bloodless knife in plain view, and all on the word of an intoxicated man running a shooting gallery for drug users. Martin Jones, a man with a prior record as you have heard, never had a chance with the police. But he knew he would have a chance before an impartial jury to have his side of the story heard. I know the district attorney is going to make a lot out of the trial that took place when Mr. Jones went to the police station that night, hand- cuffed and arrested on the word of an intoxicated man. We, on the other hand, want to make a lot about this trial, the fair trial with both sides represented by attorneys and run by a judge with no axe to grind. Let's talk about this trial.

THE COUNTS

There are four different counts you have to consider as well the defense of justification. There is manslaughter in the first degree, manslaughter in the second degree, criminally negligent homicide, and criminal possession of a weapon. We ask you to find Mr. Jones not guilty of all counts. We ask you to keep in mind that these four counts do not mean that you can make each side happy by convicting Mr. Jones of one or two counts and convicting him of the others. You should not do that unless the evidence compels you to do that.

As I will discuss in great detail, the People have failed to prove their case, and furthermore, have failed to prove that Mr. Jones did not act in self-defense. We therefore will ask for an acquittal on all counts. Now with respect to the weapon charge, the defense of justification does not apply, I suppose because the law says you could pick up a knife for an illegal reason and still end up using it in self-defense. I don't think the Court's instructions to you about that is a problem at all. The simple fact is that Mr. Jones did not pick up the knife for an unlawful purpose, so we will ask you to find him not guilty of the charge as well.

Self-defense or justification is a defense to criminally negligent homicide and reckless manslaughter. So it is our position that, since the accidental stabbing happened while Mr. Jones was defending himself, that he should not be found guilty of either negligent or reckless homicide.

The main difference between negligent homicide and reckless manslaughter is that in negligent homicide, there is a failure to perceive a risk of injury, while in reckless manslaughter, the defendant must knowingly act in disregard of a substantial and unjustifiable risk of death. The simple truth is that neither side in this case presented any evidence of reckless manslaughter, so we ask you to disregard that count at the outset.

On the issue of self-defense, a couple quick points. First, Dr. Lee told you that the club in evidence is a deadly weapon that could kill with one blow. Keep that in mind. Second, the People must prove beyond a reasonable doubt that Mr. Jones knew he could retreat in complete safety to himself and others. There is no such evidence in the case. First, you don't turn your back on an armed and dangerous man high on cocaine. Your reward might be a knife in the back.

Second, the testimony is that no one used this back door and there is no evidence in the case from anyone who was there that night that this rear door could even be opened. Finally, retreating to back bedrooms makes no sense any way you look at it and involves a risk that others would be dragged into the fight to their injury. No doubt if Mr. Jones was on the street, and, if he knew that he was faster than Mr. Smith, then maybe he would have to retreat. But he wasn't on the street; he was in a small apartment with one exit to the street he was aware of, with an armed and dangerous man coming at him with deadly intent.

JONES AND SMITH

What do we know about Henry Smith. First, he did not survive this fight. That is a tragedy because every life has value. But consider this. It just as well could be Martin Jones who was killed that day, if he hadn't knocked that knife out his hand. What else do we know about Smith. He was high on cocaine. He had illegal drug paraphernalia in his bedroom which quite obviously he had used to inject cocaine into his veins that day. Whether Martin Jones was guilty of any crimes that day you will decide. But we know for certain that Henry Smith was engaging in criminal activity immediately before this incident occurred. Further, that criminal activity, using cocaine, was a major factor in leading him to attack Mr. Jones without just cause.

We know that Smith had a reputation for violence, vindictiveness, and quarrelsomeness. Captain Braun knew about his pimping. Smith had committed several prior acts of violence that Mr. Jones either saw or heard about.

Smith had threatened Jones on prior occasions and that night as well. He carried a weapon at all times and pulled that weapon on Jones shortly before the fight. It is true that Albert Monroe had a criminal record, but Mr. Smith didn't attack the pope with a butcher knife. He attacked Monroe, and that's why we brought him in. Why would he commit perjury, a serious crime, when his testimony could easily be checked out by the authorities after this trial? No reason.

Did the district attorney rebut this testimony in any way as was her right after the defense rested. Did she bring in any witnesses who said Smith was a real nice peaceful guy who wouldn't hurt a fly, and that he never did any of the things we said he did. She did not and that's because she could not.

We also know that Martin Jones had been attacked by a knife before. Think about what affect that would have on a man facing yet another knife years later. Do you ever forget? He was in combat and had been seriously wounded in Viet Nam. These traumatic experiences stay with you forever. All these facts bolster Mr. Jones' testimony that he reasonably believed his life was in danger.

CLARK'S LIES

Your decision in this trial will come down to one basic question. Can you believe the testimony of Robert Clark beyond any reasonable doubt? This is an eyewitness case; he's the only eyewitness against Mr. Jones; if you cannot believe his testimony, then you should return a verdict of not guilty on all counts.

Can you believe Mr. Clark's testimony? If you would believe him, who would you not believe? What do we know about him? He's a convicted criminal who has lied about his criminal record in this case. He pled guilty to a charge after he was accused of beating his wife. He admitted that he did beat his wife. He ran a flophouse for drug users and hard-core drinkers. Illegal drugs were in plain view in his apartment. He was evicted from that apartment for nonpayment of rent. Martin Jones is no angel, but neither is Robert Clark. Can you believe his testimony?

He had a pint of vodka and two or three 40 ounce beers. That's the equivalent of about nineteen to twenty-two drinks. Most people in their whole lives will never drink that much and if they do they remember it for the rest of their lives. They might not remember what happened because they black out, but if they remember what happened, it's usually that they acted like jackasses. If you haven't been that drunk in your life, yoAu certainly know someone who was, maybe back in high school, the class troublemaker. Somebody in high school drank a pint of vodka or gin, and they probably ended up on the roof of the school or something like that. Can you convict someone of a serious crime based on testimony of that kind of witness?

First of all, let's take that word "testimony." A sworn statement under oath. Mr. Clark doesn't take that word very seriously. He signed the police statement under oath without carefully reading it. But that's just the beginning. Mr. Clark perjured himself so many times in this case, it's difficult to keep track of it.

We contend Mr. Clark has a poor memory for what happened that night, and I'll get to that in a moment, but let's just talk about perjury, shall we, intentionally lying under oath. Let us count the lies.

1. First he said, I may have had a couple of beers that day, not forty ouncers, but smaller. He said on cross it was two or three large forty ouncers.

2. First he said, I had no vodka that day. Then on cross, he said I had a pint.

3. What did you do after Mr. Jones left? I ran out the door and called 911. The truth is, the first thing he did was interfere with the evidence by putting his club back to where he usually keeps it.

4. "I seen blood gushing out of him." Tell them what they want to hear, Mr. Clark. However, the medical examiner said that type of wound bleeds slowly and Mr. Clark never even mentioned that blood when he called 911. Finally, only a small amount of blood ever got on the chair.

5. Jones reached over and grabbed the stick. Here, Mr. Clark turns Mr. Jones into rubber man, the cartoon character on Saturday mornings. He doesn't walk over the seven or eight feet, grab the club and walk back. He just reaches out and grabs it, without falling down. Now that lie was very clever. Mr. Clark probably knew where I was going with that question. If Mr. Jones had walked over to grab the stick, that would have involved turning his back on the man he was fighting. That would make the lie less believable.

6. In 1995, he says he does have a clear recollection of what happened that night. We know that's a lie because in 1992, he said he did not have a clear recollection of what happened that night.

7. He says, I didn't drink that vodka all by myself. Then, he admits that that's the first time in four and a half years that he ever said someone else helped him drink the vodka and he admitted that in 1992 he said under oath that he did drink about a pint of vodka.

8. When I asked him about his criminal record, he said he was convicted of harassment. He said nothing about the more serious charge of criminal trespass until I dragged it out of him.

9. Back in 1991, he perjured himself in a felony hearing in this case and flat-out denied he ever pled guilty to anything.

10. He tells the police that very night, it was a pocket knife, he can't say for sure. Well, it wasn't a pocket knife, it was a steak knife, and it wasn't that he wasn't sure about it, but rather, he never saw the knife, because he didn't see the stabbing.

11. He claims Jones swung the club pretty rapidly like a baseball bat. But Dr. Lee found little or no evidence that Mr. Smith was struck with great force, except for two scars that he could not say were fresh that were on the inside of his right arm in area where he was not being struck.

12. Smith just sat there while Jones for twenty minutes yelled at him, threatened to kill and him and approached him with a knife. A man high on three different drugs that stimulate violence does not act that way, but Clark was telling the police what they wanted to hear. The reason he puts Smith in that chair for the entire time is that when Clark woke up from his drunken stupor, he did in fact see Smith sitting in that chair. When you lie, you take part of the truth as your starting point.

13. Here's one I really like. I was asking him about his statement to the police and he said: "things weren't, I guess weren't really understandable 'cause I was, I was totally confused at that time." Now I thought I heard him say, "totally," but I wasn't sure, so I asked:

Q. I'm sorry, you were?

A. I was almost--

Q. Did you say totally confused?

A. I said I was almost confused.

Q. Almost confused?

A. Yes.

Then I got the official transcript and he lied. He did say that he was "totally confused" that night, but he didn't want you to know it. After all, he is saying what he wants the police to hear. But to lie in open court about you said ten seconds before, shows a real disrespect to the court and to you, the jury.

14. He said he was "clear and sober" at midnight, but both medical experts said he would still be intoxicated with a blood alcohol level of anywhere between 0.06 and 0.14 percent, and all three police officers also said he was under the influence of alcohol; even as late as 2:00 a.m., you could smell booze on his breath according to Det. Stambach. Of course, Dr. Kinney said that one of the effects of alcohol, was to lead a person to underestimate the amount he had been drinking.

So what we have is fourteen probable acts of perjury by Mr. Clark. Keep in mind that you may disregard the entire testimony of a witness if you conclude he lied just once. The theory is, if lied once, he might lie, well, fourteen times or even more.

CLARK'S MISTAKES

Now, let's talk about his mistakes and contradictions. I put these down mostly to his poor memory and intoxication that night. But there's an old saying, liars must have good memories. Mr. Clark's poor memory works hand in hand with his perjury. He has told so many lies in this case that he cannot remember his own lies. He doesn't remember what he lied about, to whom, and when.

Now don't be taken in by that stuff about "I testified five times and I can't remember everything." When you are telling the truth, you don't have to remember what you said to some grand jury three years ago. You just have to remember what happened that night, and you retell it that way, with small and minor variations. Here, the reason why Clark has so many contradictions and failures to remember is that he can't remember his own lies.

I recall the following mistakes.

1. He has absolutely no idea where that club was before the fight started. He told the police that night that it was by the couch where I was and that Jones came over where I was to grab the club. That makes no sense because no man would turn his back on someone he was fighting with and had just stabbed, particularly after throwing his knife away. At this trial, he first says the club was laying between the TV and the furnace. Then, he said it was on the other side of the door away from where Smith was sitting. Then, he denied his very first statement that it was by the couch. Every time you ask Mr. Clark where the club was before the fight started, it moves! Not only does the club move, but it just happened to get closer to Mr. Jones every time so that he doesn't have to turn his back on Mr. Smith to get it. And of course, he didn't have to, because he grabbed it right out of Smith's hands after Smith tried to strike him with it.

Every trial has certain moments of truth, when days of testimony are reduced into a few seconds of revealing drama. One moment of truth in this trial took place when Mr. Clark was on the stand and I asked him to put a mark on the wall map to indicate where the club had been before the incident. It wasn't a trick question because he had already testified about it and had then marked it off on a photo in evidence. When he hesitated, I showed him the photo to help him locate the place on the map. Then he took the photo, and instead of using it to answer my question, he just stared it at like it was something he had never seen before.

Here's what I think happened. He looked at the photo and realized that the club was never there, then panicked and didn't know what to do next. He thought about it for over thirty seconds- -I started looking at my watch after about ten seconds. Then, he decided that a foolish consistency was better than contradicting himself one more time, and he put the mark on the map.

Now, we don't know whether he just doesn't remember or he was just hopelessly entangled in his own lies. But, regardless, does anyone really believe the club was where he said it was? First, he admits that on prior occasions under oath, he said it was on the opposite side of the room in its usual place. He also admitted that he had previously testified that Jones had actually walked by him to grab the club. Well, that baby went out with the bath water because now the club is in the other corner.

2. Mistake number two. Mr. Jones stabbed Mr. Smith from the front in an underhanded straight forward motion. Obviously, Mr. Clark never saw the stabbing and was just making up the simplest story he could. Dr. Lee told you that the wound he saw was inconsistent with Mr. Clark's testimony.

3. How many times was he stabbed. Well, we know he was stabbed just once; the other wound was done by the surgeon. But seven days later, under oath, Mr. Clark said he was stabbed two or three times, and a month after the incident, in front of the grand jury, the number had grown to three or four times. Tell them what they want to hear, Mr. Clark.

4. He said Jones took the knife from his front pocket, but testified back in March of this year, that he took it out of his back pocket. By the way, it makes no sense to take a knife of your front pocket, where it would be pointing at your groin, and where it would be immediately seen when you pulled it out.

5. He mixed up which alcohol treatment center he had gone to in November, 1990. I had to remind him.

6. Although he denied having any memory problems about this incident, back in 1992, he testified that he was having trouble remembering what happened in January, 1991. That's what I call "totally confused." Then, you will recall, he said he was misled at the time. He was misled by the question, "do you have trouble remembering what happened?" Not a trick question.

7. He doesn't recall telling the police that Mr. Jones "approached" Mr. Smith with the knife.

8. He mistakenly told the police that after the stabbing, Mr. Jones said, "I am going to kill you."

9. He mistakenly told you that he believed that night that Mr. Smith had been "stabbed" to death, when in fact, he told the police he had been "beaten" to death.

10. He testified at trial that the two men came in arguing, but he testified seven days after the incident that they had been in the apartment half an hour before the argument started.

11. He's totally confused about who else was in the apartment at the time of the incident. J.B. was not there when the police came, he says on cross, but she miraculously appears at the scene on re-direct examination five minutes later.

12. He contradicts an official court transcript and denies that he lied seven days after the incident about what he told the 911 operator.

13. He told the police hours later that Mr. Smith was stabbed in the abdomen, not the upper chest.

Robert Clark made a bunch of mistakes in his testimony. Why is that important? It is true that every time you retell a story, certain minor details might change, however, the basic story will remain the same if you are telling the truth and if you have a good memory of the event. On the other hand, if you have a poor memory, and/or you are lying, you will make the kinds of mistakes Robert Clark made in this trial.

You will make major mistakes about key issues. Whether Jones grabbed the knife from Smith or picked it up off the floor is a key issue. Clark is totally confused about it. How may times Smith was stabbed is no minor detail. If Clark does not know, and he does not, that suggests he never saw the stabbing. Otherwise, that traumatic event would be stamped upon his mind. I was beaten up by a gang when I was fourteen and I still remember every detail of what happened. I am sure you have had traumatic experiences in your lives that you can recall with great accuracy.

Robert Clark cannot get his lies straight because they are lies. He never saw much of what he claims to have seen because he was either drunk or asleep. Dr. Kinney told you that heavy drinkers can get patchy amnesia, which means that you think you remember events, but you do not. There is no doubt that in January, 1991, Robert Clark was a hard-core alcoholic, had been through treatment three times, kicked out once. He had continued drinking extremely large amounts of alcohol in spite of his treatment. He had a history of alcoholic withdrawal symptoms and complete memory blackouts.

IT DOESN'T MAKE SENSE

Beyond the lies, contradictions, mistakes, and patchy amnesia, Clark's story makes no sense. He offers no rational explanation for why Martin Jones would stab an unarmed man in the presence of an eyewitness, when he could have easily found Smith out on the street if he wanted to stab him. It makes no sense that a man high on cocaine and alcohol would sit in a chair while a man was standing over him for twenty minutes cursing and threatening him. Things like that don't happen in real life.

No one who had threatened to kill someone would stab a man once, then throw the knife away. We all know that people who are injured can still fight a few seconds later. We've seen it in wartime in particular where dying men are still able to fight the enemy. No one would then walk away from their enemy, turn their back on him, and pick up a less lethal weapon, then hit him with so little force that no serious injury is inflicted. Clark's story makes no sense.

To sum up, Clark's testimony consists exclusively of perjury, lies, errors, contradictions, mistakes, and statements that violate common sense. That just leaves one last question about his testimony. What is his motive for perjury?

CLARK'S MOTIVE TO LIE

First, Smith was his friend and business partner. Smith would bring in people to use illegal drugs and Clark would be paid off somehow, in cash or booze, it didn't matter. It was natural for him to testify against Martin Jones, who was only a casual acquaintance.

Second, the uncontradicted testimony is that illegal drugs and illegal drug paraphernalia were found in Mr. Clark's apartment. They appeared to be connected to the stabbing incident, in the sense that the use of illegal drugs so often sparks violence. That it was the police, not James Ostrowski, who first thought the drug equipment was important is proven by the fact that three separate photos of the equipment were taken; the police then had the drugs tested for cocaine and that test was positive.

These are the same drugs the police told you in court were a low priority for them. Not that night, they weren't. And remember, all this happened after the police knew that Mr. Smith was in bad shape. So all that stuff in court about, we didn't care about that drug equipment, only you do, Mr. Defense Lawyer, is a bunch of malarkey, what we might call a rationalization after the fact. No defense lawyer was present that night, Captain Braun, but you were, and by the way Captain Braun, didn't you grill Mr. Clark about those "unimportant" drugs. According to Clark's testimony, the police showed great interest in those drugs. They brought him in, showed him the equipment and the cocaine, asked him who owned the stuff. The police asked him a "bunch of questions about it."

Then, they had it tested for cocaine. Why did they do that? It wasn't to arrest Smith for drug possession. The police told you that in court. It wasn't to arrest Jones on drug charges because it wasn't his stuff. The only other reason for testing that cocaine was to be able to hold a charge of aiding and abetting a drug crime over Mr. Clark's head so that he would tell them what they wanted to hear, that they had a nice simple manslaughter on their hands. Now, let's use some common sense here and don't allow Ms. ____________ to misstate my argument. We're not saying there was a grand conspiracy to get Martin Jones. We're saying a witness with much to lose knew what the police wanted to hear and told them. The police in turn knew they could get Clark in a bit of trouble and they let him know about that too. That's how the world works; things are implied and not spoken.

Did Mr. Clark have any other motive to fabricate his testimony? He is startled out of a drunken stupor by a fight in his living room. He wakes up in time to see Martin Jones strike the man with his club and drop the club to the floor. He walks over to the man who appears to be mortally wounded. No one else is in sight. His club is lying on the floor next to the man. The injured man is bleeding from the mouth. He appears to have been beaten to death with his own club. This man runs a flophouse where illegal drugs are regularly used and were in fact used that night. He himself is visibly intoxicated. He's a black man with a record in the inner city and the police will be here shortly, whether he calls them or not. This a nervous, tense man, that's why he drinks. His nerves are shot from chronic heavy drinking. Seeing the man dying in his own living room and beaten by his own stick, he panics.

What to do? The first thing he does is he disturbs the evidence of the fight by putting his club back to its usual, place next to the couch. In fact, in an unguarded moment, he said he "ran over" and moved the club. Only then does he call 911. In that call, he says nothing about a stabbing, only a beating. Hours later in the police station, he says the man was beaten to death.

Now, Lt. Baranski testified that "everyone" connected to a homicide is a suspect until proven otherwise. And that's the attitude the police brought to 18 Bell St., a scene of illegal drug activity.

Also, remember that Clark testified that he was up in police headquarters about four hours that night and that he was there the next night as well. After all that, the police got about one page of information from him. I believe I asked him what the police told him, and he was unable to tell me anything.

I suggest to you that from all the above facts, you can conclude that Mr. Clark was concerned about taking the rap for a homicide he did not commit. Secondly, he was concerned about being charged with crimes for allowing drugs and drug paraphernalia to be used in his apartment. Both of these fears gave Clark a powerful incentive to tell the police what they wanted to hear, to cooperate with the police any way he could.

Because Robert Clark's testimony is filled with perjury and error, and because he had plenty of good reasons to fabricate his testimony at Martin Jones' expense, we ask you to reject that testimony completely.

MARTIN JONES

There is another eyewitness to this incident, Martin Jones. He had a Fifth Amendment right not to testify, but he waived that right so you could hear his side of the story. He has prior criminal convictions, but unlike Robert Clark, he was honest enough to tell you about those straight out while his own lawyer was questioning him. He had also been drinking that day, but unlike Clark who lied about his drinking right in front of you, Jones was honest enough to tell you about that even though it is not something he is proud of. He wanted you to know the truth. And remember that Det. Lonergan said Jones was sober at about 4:00 a.m., even though he had been drinking after midnight.

He admitted he panicked when the police came to arrest him, but he made no attempt to flee from the police. They knew where to find him, and he knew that they knew. He admitted to you that under the great stress of the moment, he did not tell the police the whole story that night. He did what he did in self-defense, but he felt remorse once he realized that he had fatally wounded Henry Smith.

If you do not believe Robert Clark, then the prosecution has failed to meet its burden of proof. However, this is not a contest between Robert Clark's credibility and Martin Jones'. Since the prosecution has the burden of proof, if you conclude that you have some problems with the testimony of both witnesses, we contend that you should still reach a verdict of not guilty. Even if you disregard the testimony of Mr. Jones, perhaps because of his interest in the lawsuit, you are nevertheless obliged to impose on the prosecution the burden of establishing his guilt beyond a reasonable doubt.

That said, there are plenty of reasons to credit Mr. Jones' testimony, some of which I have already outlined. Beyond those, keep in mind that it not easy to sit in that chair, a few feet from twelve strangers and flat out lie. You saw Robert Clark try and fail. A jury is a human lie detector. First, to fool you, a witness has to be a terrific actor and there are few of those around. Second, as I have stated, you have to have a great memory for everything you ever said to anybody about the case. Next, you have to have access to a computer data base that tells you whether your lies make any sense and whether they contradict any of the testimony of several other witnesses, including experts, or whether it contradicts any of the physical or scientific evidence. Robert Clark did not have that computer and that's why his testimony contradicts the other witnesses, such as the police officers who said he had been drinking, and the medical examiner who rejected his story about the knife wound.

Martin Jones is not actor; he's a Viet Nam combat veteran whose life has not been all it could have been. He doesn't have a perfect memory, but he doesn't need one because he was just telling you what happened. Nor does he have access a giant computer to make sure his testimony doesn't contradict some other piece of evidence. He's not a professional actor or professional liar, but he did face off against a professional prosecutor trained to ferret out lies and liars day after day and year after year. Was Ms. __________, a veteran prosecutor in one of the best DA offices in the country, but was she able to put any dents in Mr. Jones' testimony? I'll let you be the judge of that.

But let me give you some reasons why you should accept that testimony that have nothing to do with Mr. Jones' credibility.

1. His testimony is the only reasonable explanation of why there is no blood on that knife, even after Dr. Simich looked at it under a microscope. There is testimony from Dr. Lee, the only board certified forensic pathologist to testify, that it is possible sometimes that there would be no visible blood on a knife, but he also said that there would in fact quite possibly be blood on a knife that could be detected by a microscope. Here, none was found. Quite frankly, we would have liked to have been able to run other tests on that knife, but the prosecution's agent, Dr. Simich, allowed it to be tested for prints and that test would have destroyed any blood traces. Two points. First, Dr. Simich stated that, after a negative microscopic exam, such tests would have been pointless. Second, since we were unable to run such tests, Mr. Jones should in all fairness get the benefit of the doubt about what the results of those tests would have been.

A few quick points about why there would be no visible blood. First, there would be no visible blood if someone wiped the blade, but that could not have happened here according to Mr. Clark. Second, there should have been blood on the upper sides of the serrated edges, but there was not.

2. Mr. Jones' testimony is consistent with the medical examiner's report on the direction of the knife wound. It went left to right, front to back, and downward, all angles that can only be explained by a struggle in which Mr. Smith was standing up and Mr. Jones has the knife pointing downward and inward.

3. Mr. Jones' testimony that his knife was longer, better explains the depth of the wound than does the four inch knife in evidence. Granted, Dr. Lee said this was an inexact science, but nevertheless, his sketch of the wound strongly suggests it was longer than four inches.

Dr. Lee said that certain factors could have lengthened the wound. But he said that a knife will go into the chest easily, which incidentally is consistent with an accidental stab wound. Great force was not required and thus the chest did not have to pushed in.

Dr. Lee admitted that the best evidence to connect a particular knife with a stab wound was the blunt edge of the knife. We would have liked to have access to such evidence, however, Dr. Lee, did not preserve it. In any event, the prosecution failed to present to you the best evidence for a fact upon which her entire case depends--blunt edge evidence.

4. Only Mr. Jones' testimony is consistent with Dr. Lee's statement that the abrasions on Smith's left hand are consistent with a struggle. Robert Clark would have you believe Smith just sat there passively while Jones attacked. By the way, keep in mind that we brought that out on cross after Dr. Lee had apparently and understandably forgotten that part of his report. And there is no evidence in the case that these abrasions were caused by being hit with the club--Jones said he struck on his right side and Clark as usual was unable to say where he hit him.

These abrasions could have been caused by two events that Clark denies occurred. First, when Jones blocked the knife as Smith held it together with the club. Second, they could have been caused by the struggle after that when they fell into the chair.

4. Only Mr. Jones' testimony makes sense out of the toxicology report that showed that Mr. Smith was under the influence of three different violence-stimulating drugs.

5. Finally, Mr. Jones' testimony is corroborated if Clark's testimony has been discredited, which it has been.

One of my jobs is to anticipate what the prosecutor is going to say since she gets to speak last. First, whenever a defendant takes the stand, the argument you always hear is that he has sat back while waiting for trial, thought about all the evidence and witnesses, and come up with a story that explains everything. Then, the district attorney will ask you to disregard that testimony because it is consistent with all the facts.

That is what Socrates would have called sophistry, an argument that sounds good, but is complete nonsense! There's another explanation for why a defendant's testimony would be consistent with most of the other testimony and physical evidence. It would be consistent with the other evidence if it's true! So please don't fall for that dishonest argument.

Another argument prosecutors always make is that only the defendant has a motive to lie. Well, I've already talked about why Clark is lying. One of reasons why Clark lied is that he didn't want to become a defendant himself. But really all you have to do is think back to the Bible and the ten commandments to realize how big a problem false accusations against people have been in history. The Bible doesn't say, "Thou shall not lie.", it says "Thou shalt not bear false witness against thy neighbor."

Ms. ___________ may attack Mr. Jones' testimony as a lie. There's no way the stabbing could be an accident. Why not? Dr. Lee said it did not require great force for the knife to go into that part of the chest. The wound did not bleed quickly, according to Dr. Lee. Mr. Jones said he fell on Smith while holding the knife in his hand for self-defense. The whole incident probably took no more than ten seconds, keeping in mind that witnesses have a tendency to overstate the number of seconds an altercation took place. But the major reason why Mr. Jones' testimony is credible is that he has no legal motive for saying it was an accident, other than of course his legal obligation to tell the truth. Even if he had stabbed Smith on purpose, since Smith started the fight and held a deadly weapon in his hand when he was stabbed, Mr. Jones would have been legally justified in stabbing him at that point anyway. So the notion that this was some sort of lie cooked up for legal reasons makes no sense.

The same is true of Mr. Jones' testimony that there were two knives involved. If Ms. ______________ is going to argue that this was another lie cooked up for legal reasons, I would ask what is the reason? Two deadly weapons are found at the scene. Mr. Jones knew that since he was there. If he was going to lie, why didn't he just say, Smith attacked with me with a club and I stabbed him, or better yet, Smith attacked me with a knife and I got it away from him and stabbed him in self-defense. The bottom line is, the only reason why Mr. Jones would say there were two knives is because there were two knives. Just because you're innocent doesn't mean you have the right to change your story so you will have an easier time at trial.

And the same is true of his statements to the police. If he was in fact guilty, he had two good options with the police. First, say nothing. Second, tell the police Smith attacked him with a knife and/or a club. He did neither. The statement he did give is perfectly consistent with a man under great stress fearful of being convicted of a crime he never committed.

THE PRINTS

Let's talk about that destroyed partial fingerprint. The police were able to lift a partial print off that knife. However, all they gave the defense was a report which just stated that the results were negative. It was only on the direct examination of Officer Rooney that Mr. Jones and I found out for the first time a partial print had been lifted. However, we have since learned that that print was destroyed and is no longer available to us for testing. Justice _______ is going to instruct you that, because this print was destroyed by the prosecution, you may infer that, had the print been available to us for testing, that the results of those tests would have been favorable to the defense. Based on Mr. Jones' testimony, we believe that any such tests would have shown that the partial print was not his. That fact alone strongly argues for his innocence, since if Clark is to be believed, this knife came straight out of Jones' pocket.

A word about the testimony of Officer Rooney. We don't disagree with his statement that you usually need about eight points of comparison to include a suspect. But quite frankly, he gave no rational reason why you need eight points to exclude a suspect. The Court will instruct you that even though he testified as an expert on fingerprints, you make the final decision about what is true and what is not true. You use your own common sense.

Common sense says that that print belonged to the last person to grip that knife hard as in a knife fight. We claim that was Mr. Smith. Common sense also says that if the three points on the knife print do not match three points on Mr. Jones' print, that would be sufficient to exclude him. Thus, we ask you, in accordance with Justice _________'s instructions and basic American fairness, to infer that such a test would have exculpated Mr. Jones.

CONCLUSION

We are here today because on January 17, 1991, a middle-aged man with a reputation for violence, took a knife and attacked a fellow human being. [Here, I repeated the first sentence of my opening statement.] Mr. Jones survived that attack. Almost five years later, however, Martin Jones continues to pay the price for doing what is the right of every American citizen: defending your life against an attacker. He will continue to pay that price until you the jury find him not guilty of these charges.

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THE VERDICT--On September 18, 1995, an Erie County Supreme Court jury deliberated for one hour and found "Martin Jones" not guilty of all charges. Mr. Jones, incarcerated for over four years, bounded out of the courtroom after thanking his attorneys, James Ostrowski and Salvatore P. Abbate. [an error occurred while processing this directive]