Chapter 11 New Trial
Now that I've completed the process of a new trial there are some things that I need to say to eliminate any concerns you may have about enduring a new trial. As the date for my new trial approached I was of the opinion that all that would result from the trial would be a repeat performance of the first one. Once the trial had begun I realized that my fears were unfounded and here's the reason why. Even if you have no new evidence to present at trial it's still a new trial because you have a new jury. You have a completely different set of minds to decide your fate. A new jury always means a new trial. I had never thought of it this way because I assumed that the prosecutor was going to run rampant in the courtroom the second time just like he did in the first trial and that the judge was going to let him. I believed that as long as you had these two clowns running the show there was no choice but to obtain the same outcome as the first trial. Breathe easy and be assured that a new trial really is a new trial. If you are fortunate enough to have David Euchner and Paul Skitzki from the Pima County public defender's office as your attorneys you are in good hands.
The first trial is always what is known as trial by ambush and the reason for this is that even though you are aware of what discovery the prosecutor is going to present, that's still not enough information for you to figure out his strategy before you go to trial. You won't find that out until it is way too late to do anything about it. In my first trial my attorney didn't present one motion in limine or a single case law to the court. The most crucial documents a defense attorney can present the court are motions in limine. The reason for this is that motions in limine restrict what the prosecutor is capable of saying or doing during the trial. The problem is that in the first trial you have no idea what kind of dirty tricks he's going to pull, so there is very little that you can present in the way of motions in limine to reign him in. In the second trial this condition is not true. In the second trial the prosecutor is stuck with his storyline and it will either prove correct or become a boat anchor around his neck. It is your job and the job of your attorney to make sure that it's the latter and not the former and the way you do it is through motions in limine. Motions in limine are argued before trial begins so that everyone has agreed upon how the game is going to be played. Once there is agreement between you and the prosecutor and the court in regard to these motions and the prosecutor decides to ignore them because he isn't doing so well, this gives you a legal basis to object to the actions of the prosecutor or ask for a mistrial. In addition it gives you an outstanding claim on appeal if you happen to lose.
Just as in the first trial the witnesses who will testify will undergo pretrial questioning a second time. Just like in the first trial is important for you to be there and there are numerous strategic reasons why. The biggest reason is because there you are, sitting 3 feet across a table from the person who is trying to send you to the big house for life. For some people it's difficult to lie about a person sitting in front of you, knowing what the potential outcome is going to be. Some people just don't have the stomach for it and will recant their testimony on the spot. If this happens there may not be a second trial. Both your attorneys and the prosecutor will be present at these interviews and in some states it will be deposed testimony under oath. If the one and only witness against you recants his testimony in front of the prosecutor on a sworn deposition, it's game over and the prosecutor will have no choice but to drop the charges against you with prejudice. Unfortunately in Arizona witnesses in a criminal trial are seldom deposed under oath which means the witness can say anything he wants during the interview and then completely changed his story at trial without encountering a charge of perjury. This condition does not permit the gathering of valid and accurate testimony in my opinion and it shouldn't be too difficult to understand why.
In the pretrial phase of your second trial your attorney should conduct a more thorough examination of the forensic evidence that will be used against you than was accomplished in the first trial. It is vitally important that you do this because nobody knows at this point what may reveal itself with a deeper investigation than what took place for the first trial. My extremely conscientious attorneys for my second trial did this for me without even having to be asked. Because we conducted a more thorough investigation the second time around we discovered that the hard drives that were seized from my motorhome had 312 files that had been unforensicallly accessed by the detective in my case, one month after they had been seized and 11 months before the computer forensics had actually been done. This is what is known as spoliation of evidence. Spoliated evidence is inadmissible in a court of law, however in our case we wanted to present this fact to the jury so we filed no motion in limine to preclude the hard drive evidence. In addition to this there was other evidence concerning my accusers use of his e-mail address during periods of time when he testified at the first trial that he was not present in my motorhome. Had the hard drive evidence been precluded we would not have been able to present these facts to the jury.
To testify or not to testify, that is the question. Having undergone two trials it has become apparent to me that if you are going to testify it is vitally important that you testify at the first trial and not at the second one. The reasons why this is so is due primarily to the fact that even though you may have notes to guide you in your second testimony, it is very difficult, even for an honest person, to testify a second time without making small errors or deviations from your testimony in the first trial. In the second trial if you testify a second time the prosecutor is going to jump all over you in regard to these minor errors or deviations in order to impeach your testimony. If you don't testify a second time you don't have to worry about this. In addition to this is the strategic condition you create concerning what you testified to in the first trial. The prosecutor needs to present the statements you made at the first trial in order to refute them and he is not going to be able to do this without revealing to the jury that this is the second trial, if you don't testify a second time. Revealing to a jury that this is the second trial is never a prize winning strategy for a prosecutor because it informs the jury that something went wrong with the first trial and that this is the reason why a second trial is being conducted. This information can have a profound effect on the jury in the arena of reasonable doubt.
As I stated in the chapter about first trials it is vitally important that you make your own audio recording of the trial. Don't count on the state to record the trial for you. Both of the trials I attended in Pima County were not recorded. The equipment is available in some of their courtrooms but not all of them. The reason for this is because there is evidence to support the conclusion that the record of many trials in the state of Arizona is altered. If you do discover a discrepancy between the written transcripts and your recording, if your recording is crisp and clear, leaving no ambiguity there is probably a 60 / 40 chance that the judge will admit your recording as evidence and agree with what you have discovered. It is important to remember that if you don't have a recording of the trial then there is no chance for you to object to what is contained in the record regardless of the fact that you made the recording. Before you begin recording it is always preferable to ask permission first and if you are denied there are ways of handling this problem and getting a recording anyway without getting yourself in trouble. For example if the judge refuses to permit you to record the trial, give the recorder to a family member, have them turn it on before entering the courtroom and stick it in their shirt pocket. They should also sit as close to the front of the courtroom as possible. In this scenario you asked the judge for permission to record and the judge refused to give you permission, but the judge didn’t refuse your family member and as long as the fact your brother, sister or friend doesn’t get discovered there is no problem. If an issue presents itself with regard to the transcripts don’t worry about raising it on appeal. The judge refused to give you permission, he didn’t refuse your brother, sister or friend. Without obtaining permission however it is not likely the recording will be admitted as if the proceedings had been recorded by the court, but at least you will know there is a problem with the record and wont be spending a huge chunk of your life wondering if you have a faulty memory about what was said or what happened in trial.
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