Samuel Goldberg has been a Massachusetts criminal defense attorney for 20 years. Prior to that, he was a New York state prosecutor. He has published various articles regarding the practice of criminal law and frequently provides legal analysis on radio and television, appearing on outlets such as the Fox News Channel, Court TV, MSNBC and The BBC Network. To speak to Sam about a criminal matter call (617) 492 3000.

ATTORNEY SAM’S TAKE ON MATTAPAN MURDER, WITNESSES AND CLOSING ARUMENTS (Part Four)

So…as the attorneys, parties, judge and jury rest up this weekend and get ready to final arguments, charge from the judge and jury deliberations, the Boston Criminal Lawyer Blog finishes this four-part discussion about this case in terms of credibility. Primarily, the credibility of a witness like Kimani Washington (hereinafter, the “Witness”)

In my last posting, we discussed how witnesses such as this one can force the prosecution to turn its own arguments on its head. For example, arguments that a prosecutor would scoff while arguing that a testifying defendant has a motive to lie will need to be changed in order to argue that the Witness, who also has a motive to lie is worthy of belief.

Of course, in the Mattapan case, this may not catch the prosecutor in such a conundrum. It would appear that neither defendant is going to testify. If a defendant does not testify, that defendant does not put his credibility in question.

“Why wouldn’t the defendants testify?”

That is the subject for another day. However, if they do not testify, the jury will be told that it cannot hold the silence against the defendant.

“So, doesn’t that mean that only one side of the story will be told?”

Not necessarily. Cross-examination is a critical tool for a defense attorney. This is particularly true if that attorney has experience and training in how to use it.

Through cross-examination, the defense can often get its point across to the jury without even having to put a witness of its own on the stand.

Sometimes, this is done in a clear, nontransparent manner. Other times, however, the reason for certain questions are not fully revealed until closing argument.

For example, during the cross examination of the Witness, much was made of his having a “bad temper”. Part of the reason for this point is clear. It tends to put the Witness in a bad light and it also paints him as someone you might expect to see shooting someone. However, there is another reason you might hear explained during final argument.

To the extent that the Witness kept his cool during the confrontational cross-examinations, there is an argument that the Witness was not being as straight-forward in word and in temper as the Commonwealth might suggest.

“What do you mean?”

Well, of course nobody would expect the Witness to pull out a gun and shoot the defense attorneys down. However, someone of such a temper would be expected to argue and be verbally combattive when literally being called a liar.

The reason the Witness did not behave true to form, according to the defense, might be because of all the training the Commonwealth gave him about testifying. He also knew that he had a job to do on that stand and, if he did not do it, he was looking at severe penalties.

Therefore, the argument goes, the Witness was dishonest not only in what he said, but also the manner in which he said it.

“What other arguments might we hear at closing?”

During the final arguments of this murder trial, I believe you will hear much time given by the prosecutor to the living victim as well as the dead ones. This is for a number of the reasons. One of those reasons is sympathy. What happened to those victims, according to the witnesses, is horrible. The fact that one of the victims was a small child makes the shootings even uglier.

It is these images that the prosecution will want the jury to take with them into deliberations.

Meanwhile, the defense will do all it can to pin the hopes of the Commonwealth onto the Witness. This is because the Witness is easy to attack. As discussed in my last blog, the Witness is a “rat”. He is an admitted criminal. He made a deal with the Commonwealth to avoid potentially the rest of his life in prison.

One line of argument should be the seeming inconsistency between what the Witness said and what other evidence seems to suggest. For example, The Witness says he left the scene of the shooting before said shooting even began. What was found at his home, as discussed earlier, would suggest otherwise. The Witness does not indicate his brother was at the shooting. Again, the gun found would suggest otherwise. Finally, the Witness says that these defendants were the ones who were left at the scene with the soon-to-be victims. Another witness indicates that another male was there, other than the defendants.

The Witness’ job at the trial was clear, and the jury should be reminded of that. He was to testify to the same story he had told law enforcement when his deal was made. Any change could result in his not only being prosecuted for the murders, but also intimidation of a witness and other related charges.

“Sam, if the jury comes back with acquittals, doesn’t that mean that they reject the Witness’ testimony?”

Pretty much.

“So, would the Commonwealth prosecute him for perjury?”

No. An acquittal would be seen as a mistake made by the jury. A prosecution of the Witness under these circumstances would mean that the Commonwealth had been duped. That is not about happen.

“If the Commonwealth wanted to prosecute the Witness for the murders after this trial, wouldn’t it be barred because it would be ‘double jeopardy’?”

No. The Witness’ liberty was not in jeopardy and in the jury’s hands during this trial. He was merely a witness. Therefore, that would not be a basis to prevent such a prosecution.

“In what order are the closing arguments?”

The prosecution goes last. Because it has the burden of proof, the prosecution gets the final word at closing arguments and the first word during opening statements.

Not counting the judge’s instructions, of course.

“So, if the prosecutor argues last, what will he say to offset the defense attorneys’ arguments?”

Well, expect many excuses as I mentioned early on in this four-part posting. However, the most effective tool in this particular closing?

Repetition of the images of dead victims, wheelchair bound victim and, especially, dead child, dead child, dead child and dead child.

Don’t worry, though. The judge will tell the jurors not to be influenced by sympathy.

Uh-huh.

On Monday, we finally move onto another trial taking place, albeit not in the Commonwealth. The issues are close enough to home, though.

Have a great, safe and law-abiding rest of the weekend!

Posted in:
Updated:

Comments are closed.

Contact Information