Instead of a dry, boring article, the following is an excerpt from a recent interview with Attorney Leckerman on the subject.
Can There be Too much Defense in a Case?
Interviewer Have you ever fought too hard, where the court will say, “Enough. Stop. No,” and they don’t go in your favor? It sounds like just when you fought so hard, they said, “Oh no.” They just gave up. I mean has this ever backfired or no?
Kevin: That’s a good question, because I’ve learned from experience that you just don’t know what will ring true with the jury or with the judge. Even though you think you may be beating a dead horse with all of this really good cross-examination, these good points may not be making the impression that you want. So, my feeling is never stop.
Even if the judge is rolling his or her eyes and seems a little bit frustrated when your continuing with the case, you can’t rely on the fact that this judge is going to do the right thing. Unless a judge tells you, “Hey, stop. I’ve heard enough. You won,” I never assume that I actually won the case.
For example, I had another case where, again, it was an issue of getting a court order for information I needed concerning the breath test results. This information that I asked for was well beyond what attorneys normally ask for. The judge granted the requests. The State was unable to provide those requests within a certain period of time and they threw out the breath test results.
Now, this was a situation where the client had a flat tire on the New Jersey Turnpike. It was about a mile away from the nearest rest stop. He unwisely tried to make it there and, in the meantime, his rims started to shoot sparks, which caused his truck to catch on fire. He had to pull over on the side of the road. His car was engulfed in flames that were literally 20 feet high.
Fortunately, we have some videotape. It was a New Jersey state police case and they have videotape in their vehicles. The videotape showed the flames rising well up into the night off his vehicle. His car was exploding at times, as well. The police officers were taking about 100 feet to go around it out of caution for their safety. Amazingly, the troopers then have my client perform field sobriety tests about 20 feet away from the car.
Interviewer That seems unreasonable.
Kevin: All of his personal belongings were in this car burning up. His vehicle was torched. He was clearly distraught about the entire situation. We can hear him talking about all his personal items that were being destroyed. His computer was in the car. His briefcase was in the car and he was saying, “Listen. I can’t do this.” They said, “Okay. Why don’t you turn around and we’ll take you back another 15 feet away from the car. Don’t look at it while you do the test.”
We knew, right off the bat, that this was a ridiculous situation for anybody to have to do field sobriety tests. Now, I didn’t expect that the judge was going to acquit my client, just because these conditions were horrible ones field sobriety tests.
As part of my initial intake with clients, I ask them as much information as possible concerning any physical issues they may have with balance or equilibrium. Strangely enough, this particular client had an inner ear problem that he developed years ago, which caused him to have equilibrium problems. In other words, he had balance issues. The tests that the officers gave were balance tests and he told the officer, “I have some balance problems.” The trooper decided to make him undergo the tests anyway.
We were able to get all of his medical documentation and presented it in the case. Now, I thought that the situation concerning the car catching on fire and blowing up, essentially, was enough to sway a judge, but I didn’t rest there. I wanted to present as much information as possible.
I wanted to beat that dead horse and, eventually, the judge pointed to all of those issues in coming to her decision, as well as some of the credibility issues of the trooper. Fortunately, I was able to get some really good contradictory information from the trooper during cross-examination as well. This client was found not guilty.
I never think that one simple strategy is going to work. I want to . . .
Interviewer You want to burn that case to the ground.
Kevin: I do. I absolutely do.
Interviewer Good. You should’ve set the indictment on fire in front of the police.
Kevin: It was incredible that they were prosecuting it. I sometimes don’t understand what goes through the prosecutors’ minds when they decide to go forward with cases like this.
Interviewer That was a great case. Tell me another one.