Having the right attorney makes all the difference

A great and successful criminal defense attorney must be a courtroom strategist and tactician. Trial work is about people, and cannot be learned in a book. It is about who the attorney is as a person that will make a huge difference in the outcome of any case.

In the Boston Marathon Bombing trial, many have questioned why the defense attorney in her opening statement admitted her client committed the crime and actually stated what he did was a horrible, senseless tragedy that he will have to deal with for the rest of his life. Some legal “scholars” have asked why there is a need to go through the “guilt phase” of a trial if the defendant is not contesting their guilt. Why not just go to the penalty phase where the jury will make the decision as to whether a life sentence or death is the appropriate punishment. Many lawyers commenting in the media have also wondered about this as well.

The Bianchi Law Group has also provided legal commentary on Fox News to illuminate the reasons the defense attorney has done this. It is a brilliant strategic move and one that shows this defense attorney understands the courtroom and juror psychology very well. Like all things, there are those professionals that have the credentials. However, not all attorneys do well in the final analysis (the jury verdict) because they do not have the common sense or understanding of how important tactical decisions in a courtroom play out. Any person seeking representation should be mindful of hiring an attorney that is not only experienced, but one that has the very special and rare talent of “knowing people” and has a lot of life experience and common sense to bring to the table. The attorney’s relationship with the jury is of paramount importance! This is in addition to having a tremendous amount of court time handling cases and learning the art form of trial work.

In the Boston Marathon Bombing case, the defense attorney has a very specific strategy in mind that must be understood from the outset. It is to save her client’s life – plain and simple. And, even if that seems impossible, it is to keep her client alive for as long as she can, by creating appellate issues that could slow down the execution process for as long as possible. Many times in horrific cases like this one, this is all that can be done.

So, why not just plead guilty in the “guilt phase” as many legal “experts” proffer?

Firstly, the defense attorney did an excellent job in opening statements by admitting from the outset her client is guilty and that his actions caused pain and suffering to so many innocent people. This may sound counterintuitive for a person representing a criminal client to say. But, it is brilliant. To a jury, it sets the first building block in place for the defense – that is credibility. The jurors would have to feel that the attorney (and her client by default) are being honest and forthright and not “sugar coating” what this defendant has done. Credibility to an attorney is key. I have trained thousands of New Jersey Trial Attorneys over the years and it is, without a doubt, my first training point to them. An attorney’s credibility with the jury is primary, crucial, and can never be compromised – ever. So in that case, the defense attorney hit the most important note in the case by establishing that she is pulling no punches and telling it like it is and, as a result, that she is worthy of belief. This sets the stage for the next building block toward her goal of saving her client’s life.

She made clear in the opening statement that while they accept responsibility for the crime, it is also true that the defendant’s brother took this nice and kind boy (her client) and radicalized him to do such a terrible thing. She set the stage in the “guilt phase” right from the outset to humanize a client that has done a very bad and inhumane thing. It does not legally excuse his conduct, but it starts to paint a picture of the “why he did it” piece of the story. She did an excellent job at showing how his older brother manipulated him into doing something that was very wrong. This sets a stage of explaining his actions in the hope that when they get to the “penalty phase” of the trial and have the ability to at least explain his conduct, which the Judge will tell the jurors is key to know when determining the appropriate sentence. All the defense attorney needs is 1 juror out of 12 that believes that life is a more appropriate sentence than death.

Next, and very importantly, the defense lawyer has done very little cross-examination of the victims of this horrific act. She would be a fool to attack those that have suffered so greatly at the hands of her client. Rather, she is continually making legal arguments to the court (outside the presence of the jury) about evidence issues, admission of testimony, and other legal issues (that are too long to list here). Those legal arguments force the court to make some very tricky rulings that are already suspect and provide the possibility of a reversal of conviction down the road. This lawyer is smart and, to me, the judge and prosecution are not as sophisticated and are falling into the defense’s trap by making various rulings that are really not needed, but are limiting the defense’s case. Why do that in a matter where the defendant’s guilt has already been admitted to? I have seen this time and time again, and it shows that the prosecution and judge are not as skilled as the defense attorney.

For example, defense attorneys are given a wide latitude to bring in evidence favorable to their client in all trials, especially cases where death is the possible sentence. By limiting the defense attorney (in areas that are legitimately brought by the defense), they are falling into a situation where an appellate court may later be very concerned that the defendant did not receive a “fair shot.”

Having trained many New Jersey Prosecutors and New Jersey Criminal Defense Attorneys over the years, I discuss this with them often. It is not only about winning a trial, but winning a case that will withstand appellate scrutiny to ensure a matter is not reversed and where the prosecution will have to start all over again. The prosecution and judge have already caused serious appellate issues by limiting the defense attorney from making a vigorous defense that we, as United States citizens, are all entitled to in our criminal justice system.

Lastly, this defense attorney knows juror psychology. Far too little attention is paid to this by many attorneys, which evidences a tremendous lack of insight into the trial process. Jurors are people. They have emotions, biases, fears, concerns, just like we all do. I have found far too many attorneys miss the point that it is not about them. Rather, it is about the jury who in the end makes the final call. As an attorney, you have to realize the importance of making the jury comfortable with the position you are advancing – in this case, not impose the death penalty.

Each day the defendant sits there, he becomes less of a “monster” and more human in the jury’s eyes. It is hard to sentence someone to death. Therefore, the more humanized the attorney makes her client over time in both phases of the trial, the better the chances that the jury will not vote to execute him. This is such a simple fact, yet so overlooked by attorneys. Each day in the “guilt phase,” this attorney is driving the themes and reinforcing the defense she wants to eventually make in the “penalty phase” of the trial. Good move.

In all, this defense strategy is right on. It is forcing the prosecution and judge to make legal mistakes, which have already occurred. The defense attorney hopes to keep adding them up. Thus, if there is a conviction, it is more and more likely a reversal goes from a possibility to a reality.

She is humanizing her client, bringing credibility to her as an attorney in the eyes of the jury, and is setting up the stage upon a conviction in the “guilt phase” to ask for a life sentence in the “penalty phase.” Of course, it may not work, but her strategy and tactical decisions are right on the money.

Having an extremely experienced Criminal Defense Attorney that has courtroom time and common sense, is an invaluable asset to any criminal defense client. Here, the client is well served by this skilled tactician and obviously very good attorney.