4th trial a charm for the criminal defense lawyer in this murder case?

I appeared on Fox New’s Happening Now show with Heather Childers and co-guest Lis Wiehl, Esq. We discussed the fascinating murder case of Cal Harris, a man accused of killing his wife in 2001. This murder case is going to trial for the 4th time.

The body of the deceased wife and the murder weapon have never been found (crucial pieces of evidence the prosecutor is missing).

In a nutshell, the murder case has been tried to a jury 3 times already. 2 trials resulted in convictions that were later overturned on appeal. The 3rd trial resulted in a “hung jury” which means they could not unanimously decided that the defendant was guilty of murder beyond a reasonable doubt.

Since the time of these previous murder trials, new evidence gathered by the criminal defense lawyer suggests that another person may have committed the murder. Evidence found several miles away at the home of another person who was with the victim on that day, discovered in a fire pit, articles of clothing and a knife blade, that are said to match the description of the clothing of the victim on the day of her murder were allegedly recovered. As a former head NJ County Prosecutor and now NJ criminal defense lawyer who has tried many murder cases, I know that this is powerful evidence that the husband was not the murderer and is to the criminal defense lawyer’s advantage.

Moreover, a new witness indicates that the wife was having an argument with another person around the time of the murder at the driveway of her house. Hence, the prosecution’s case has become even weaker, and the criminal defense lawyer’s case has grown exponentially stronger.

Despite these new developments, the criminal defense lawyer has elected to waive the client’s  right to a jury trial in this murder case, electing to have the murder case decided by a singular judge. This is commonly referred to as a “bench trial.”

Lis and I somewhat disagree on this criminal defense lawyer’s tactic. I feel that it is a bad move for any criminal defense lawyer in virtually any criminal case (especially a murder case) to waive a jury trial where all 12 jurors must agree upon a guilty verdict, which as a former prosecutor I know firsthand, can be challenging.

In this interview with Fox News host Heather Childers, it was my contention that trials by definition get worse for the prosecution- – especially after 15 years and 3 unsuccessful murder trials have lapsed.  And, with the new and compelling evidence, to me it makes no sense to allow a single judge to make the guilt call. Judges in New York are elected. Despite what we would hope, judges are in my opinion capable of being influenced by public opinion of the very public that keeps them in office at election time. As a New Jersey criminal defense lawyer, I would never have waived a jury trial in this murder case.

So too, as a former head NJ County Prosecutor who has tried many high profile criminal murder cases, I am at a loss as to why a criminal defense lawyer would waive a jury trial of 12 people, especially after new evidence even further confirms the defendant may not have committed the crime. In this setting the jury is the criminal defense lawyer’s best tool to ensure that the client will not be convicted. With a judge on a highly circumstantial and ever growing weaker case for the prosecution- -who knows what any one person/judge will do.

This brings us to another issue we discussed, that being, this murder case being a rush to judgement. The prosecution’s case is entirely circumstantial. Now, in New Jersey- – as in most states– a case may be built entirely upon circumstantial evidence alone. But, the judge will caution that the jury must be very careful to make sure the evidence is persuasive and premised upon logical inferences. As such, in truth the prosecution always wants direct evidence in a murder case, such as, an eye witness, a murder weapon, a body, a confession, DNA, electronic data, and a solid motive.

Having investigated, prosecuted, and defended numerous NJ murder cases over my career, I have often seen at the inception of a murder case detectives and investigators look at a possible motive alone, and then make a premature decision that the person with the motive is guilty. Here, like a murder case I discussed on air that I handled, they knew the husband and wife were in a contentious divorce.  So, he rightly becomes a “person of interest.” But as in many murder cases I have handled myself under the exact same motive, it was later determined that someone else committed the murder. In other words, investigators and prosecutors need to be flexible and nimble in their analysis of the facts of a murder case to avoid prematurely making an arrest of a suspect until all other evidence is reviewed and considered.

It will be interesting to see what happens in this murder case now that it is a bench trial only.

© 2016 Robert (Bob) Bianchi, Esq.

Former head NJ County Prosecutor

Criminal Defense Lawyer

Certified Criminal Trial Attorney, NJ Supreme Court

National TV Legal Analyst



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