AFTER CHICAGO JUSTICE, I NEED THE FIFTH
Things weren’t looking good. Not for Assistant State’s Attorney Peter Stone. And not for me. Not for Stone, because he was the star of Dick Wolf’s new TV show, Chicago Justice and things never look good for prosecuting attorneys in the first three acts of a Dick Wolf. Not for me, because I was watching Dick Wolf’s new TV show, Chicago Justice.
Stone was prosecuting Dylan Oates for arson and murder. Oates had set fire to a factory being used for a rave, resulting in dozens of injuries and 39 deaths. Oates was a smarmy, spoiled millennial whose condescending sneer alone should have made the jury want to convict him. But the case against Oates was coming in badly thanks to Oates’s high-priced and equally-smarmy defense attorney, Albert Forest. Stone decided he needed to establish a motive to secure a conviction.
Then fate dropped a motive in Stone’s lap. Forest’s response to Stone’s discovery request contained discovery and news articles about the factory. One article claimed pedophiles used the factory’s raves to attract under-aged teens. So, if Oates had been an abused child, then he had a motive; the article triggered memories, so Oates “lost it” and set the fire.
Stone’s boss, State’s Attorney Mark Jefferies, feared this evidence could hand Oates a sympathy defense. Nah. In my experience, juries aren’t simpatico to sympathy defenses. Juries don’t let criminals off because they feel sorry for them, because juries don’t feel sorry for them. Especially criminals who torch a rave, wedge the doors shut so no one could get out, and kill 39 people. Not a case that’s high up on the “Aww-poor-baby” scale.
Jefferies ignored another problem with the motive, there was absolutely no evidence Oates had been sexually abused as a child. Without that, how would Stone connect the purported motive to Oates? That question was rhetorical, by the way, without that proof, there is no, “Here’s how.”
Stone called the reporter who wrote the article. Forest didn’t cross-examine and Stone realized he’d been played like a… No, not a Stradivarius , I don’t want to give either Forest or Stone that much credit. Like a dime store ocarina.
Forest sent the article to Stone accidentally on purpose. He wanted Stone to introduce the article. It laid the foundation for Forest’s sympathy defense without him calling Oates as a witness; thereby waiving subjecting Oates to cross-examination.
Stone knew Forest was a typical Dick Wolf shyster. Why would Stone have trusted anything that Forest “accidentally” dropped into his lap? Only one reason, Stone was an idiot.
But Forest was an idiot, too. His strategy depended on Stone calling the reporter even though using it would have been an unethical misappropriation of Forest’s work product and even though Stone had no proof Oates had been sexually abused. Either reason was enough for Stone not to use the article by itself. Stone had both. So Forest’s strategy depended on Stone being an idiot. Moreover, it was also utterly unnecessary.
After Stone had planted the seed of the sympathy defense, Forest needed to establish the possibility that Oates had been sexually abused as a child. He called Oates’s mother. She testified that when Oates was 5, her brother took Oates fishing and did something to him. After Oates came back, he had changed. He was no longer her sweet boy. She carefully suggested that Oates had been sexually abused without ever actually saying it. Forest didn’t call any other witnesses.
Forest’s defense required two witnesses; the reporter and Oates’s mother. Forest could have established his defense without calling Oates or subjecting him to cross-examination. Forest didn’t need to get Stone to call the reporter with a dirty trick that shouldn’t have worked in the first place. So why did he use his dirty trick? How else could he establish he was a typical Dick Wolf shyster defense attorney, unless he showed he wasn’t shy-ster about using a dirty trick?
By now the show had reached the 40-minute mark. The Dick Wolf play book said it was time for the prosecutor to have a sudden, last-minute epiphany and come up with a strategy that would save the day. Chicago Justice didn’t disappoint; except that the last-minute strategy was so preposterous the fact that the show actually used it was disappointing.
When Forest tried to rest the defense case, Stone said he had the right to cross-examine Oates. Forest argued the Fifth Amendment prevented Stone from forcing Oates to testify against himself. Stone pointed out that on two different occasions during his mother’s testimony, Oates yelled, “You’re lying!” Stone argued, “[Oates] spoke. The jury heard him. That’s testimony. He waived his rights against self-incrimination.” And the judge bought it. She actually ruled, “I’ll probably be reversed on appeal, but I’m going to let you cross-examine him.”
Can I say bullshit here on ComicMix? I don’t think “bullshirt” will quite cut it.
When a defendant testifies, the defendant waives the right against self-incrimination and can be cross-examined. The defendant can’t answer all the questions the defendant wants to answer on direct examination then forbid cross-examination on the questions the defendant doesn’t want to answer by arguing it would violate the right against self-incrimination. So, yes, if Oates had testified, Stone would have been allowed to cross-examine him.
Thing is, Oates didn’t testify.
Testimony occurs when a person is in the witness stand and answers questions under oath. What do judges in TV shows and movies call it when a spectator who is not under oath yells something in court? Right, an outburst. Hell, Oates’s judge even warned Oates about making further outbursts. Oates didn’t testify so he didn’t waive his Fifth Amendment rights.
If Oates had called a prosecution witness a liar, maybe the judge might have called that testimony and allowed cross-examination. After all, the prosecution could argue that it had the right to repair the damage the defendant’s outburst had done to its witness. But I’ve never even seen that happen. Juries don’t give a defendant’s outbursts any credibility. It wasn’t expecting the defendant’s to say, “Yup, that’s how it happened. I’m guilty,” in the first place, so it ignores any shouts of, “You’re lying!” And we didn’t even have that strong an argument for cross-examination.
Oates called a defense witness – a witness whose testimony was supposed to help him – a liar. How was Stone going to argue he had a right to repair the damage, when the defendant’s outburst hurt the defense case not the prosecution’s case?
Last week I said that I didn’t know any judge who would allow a defense attorney to ask why a confession that had been suppressed wasn’t introduced. Well, I’ve met a few more judges since then and I don’t know any that would call a defendant’s outburst testimony and allow him to be cross-examined on it.
I especially don’t know of any judge who would make this ruling after first stating, “I’ll probably be reversed on appeal.” Judges hate being reversed, hate it more than Yosemite Sam hates rabbits.
Being reversed make judges look bad. And causing a trial to be reversed then retried wastes taxpayer’s money; a good way not to be reelected. Judges try not to do things they think might get them reversed and they definitely don’t do things what will “probably” get them reversed.
So, did Stone’s cross-examination trip up Oates so he said or did something that caused the jury to convict him? Or did Stone lose the case? Ah, that would be telling. You wouldn’t want me to be a spoiler, would you?
Still, this was the first episode of Dick Wolf’s new series about a crusading prosecuting attorney. It had already made its star look like an idiot because he fell for a dirty trick. Do you think the show wanted to start out by making its hero look like he was incompetent and a loser?