Wednesday, September 24, 2008

O.J. + Witnesses on the Rocks = Recipe for Reasonable Doubt?

by Katherine Scardino

One of the neatest things about being a defense attorney is cross examination. The defense lawyer gets to do almost anything in cross and there is always a surprise somewhere. You can get in the witness’s face; you can confront him with telling a different story prior to his testimony in trial. You know the famous question: “Were you lying then, or are you lying now? . . .”

I can’t imagine anyone who has been to law school not wanting to be a defense lawyer—just to be able to cross examine lying cops or lying witnesses. The most fun of cross examination is the witness who just is not sure what he wants to say—i.e., "Who are you really testifying for, sir? . . ."

I was reminded of this while watching the O.J. Simpson trial unfold in Las Vegas. O.J.’s co-defendant Charles Ehrlich was back on the witness stand yesterday to face cross-examination from defense attorney Yale Galanter about exactly what O.J. knew about the use of guns.

I would have loved to have been the lawyer to cross Ehrlich (mugshot left). The issue of what O.J. knew about the guns is critical to his case, since pulling a gun while committing a crime enhances the amount of time a defendant may have to serve. In response to Galanter’s question as to whether it was the understanding that nothing illegal was going to occur, Ehrlich said, “Correct.”

Galanter then asked, “This was nothing but a recovery of stolen property, correct?”

"Correct," Ehrlich said.

But there was one hitch. On Monday, Ehrlich testified in response to questioning by the prosecutor that he saw two people with guns during the alleged armed robbery and kidnapping at the Palace Station Casino Hotel. Ehrlich said that one of the people waved around a black gun. Supposedly, the person who was brandishing this black gun was another co-defendant, Michael McClinton, who has already taken a plea deal from the State.

Ehrlich also testified that he heard someone shouting “Put the gun away” and he thought this person doing the shouting was Simpson. That would have meant that Simpson knew that during this offense, there was a weapon out and being used. Ehrlich did not say anything about whether Simpson knew before the confrontation that a gun was in McClinton’s pocket.

So after cross examination by Galanter, this witness’s testimony became almost irrelevant for the State. Now, the jury has two versions to consider—one good for Simpson and one not so good for Simpson.

Monday, the jury heard testimony from another State witness, Thomas Riccio, who admitted that he had received $210,000 from the media deals he had made after secretly recording the incident. Riccio supported O.J.’s contention that Simpson had been insistent that the purpose of this incident was only to recover personal items that had previously been stolen from him. He further stated that Simpson was not aware of the use of any guns. But just the fact that he recorded the eight-minute incident—and that he profited substantially by his recording—is enough, at least for me, to be suspicious as to his motives and intent in putting together the whole shenanigan.

So . . . the bottom line so far is that we have a spider web of stories—all intertwined, all similar, but not quite. Does that mean “reasonable doubt” to the jury? It should, but will it? Let’s keep watching. . . .

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