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Commonwealth v. Ung: The Defendant Takes the Stand

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Testimony is now over in the trial of Gerald Ung, the Temple Law student facing charges of attempted murder and aggravated assault stemming from a shooting in January 2010. Ung shot Eddie DiDonato, a former Villanova lacrosse captain and the son of a politically connected partner at the Fox Rothschild law firm.

Throughout the trial, Ung’s counsel, renowned Philadelphia defense lawyer Jack McMahon, has argued that his client acted in self-defense. As he said in his opening statement, “This case is about privileged, drunken bullies, four guys, tough guys, big-muscle guys. It’s unfortunate what happened to this young man [DiDonato], but it was their own fault.”

Today Gerald Ung got to drive this point home, in his own words. In a rare move for a criminal defendant, Ung took the stand, testifying for almost two hours.

How did Ung do? Let’s find out — and play the role of jurors, by voting in a reader poll….

“I just watched Ung testify,” a Philly-based ATL reader told us. “Very compelling witness. Broke down on the stand, and did a very good job responding to the prosecutor. He absolutely lost it when he stepped down.”

News accounts of Ung’s dramatic testimony paint a similar picture. The Philadelphia Daily News described Ung as “composed and concise” during most of his time on the stand — except when he got to describing the incident itself:

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[Ung’s] voice became choked with tears when he spoke about the moment he shot a man six times on a Center City sidewalk in January 2010.

“Back the f— up!” Temple Law student Ung, 29, said he shouted while pointing his legally registered handgun at Eddie DiDonato, 24. DiDonato and three male friends had been arguing with and following Ung and his two friends on Market Street near 4th.

“And he said, ‘Who you gonna shoot?’ ” Ung said, recalling the words of DiDonato, a recent Villanova University graduate.

“I tried to kick him away,” Ung said, tearing up during questioning by his attorney, Jack McMahon.

“Did you shoot him first?” McMahon asked.

“No, I tried to kick him away first,” said Ung, who lost his right boot and his balance when DiDonato grabbed his leg.

This sounds like strong testimony from Ung. In terms of substance, it establishes that (1) he tried to warn DiDonato before shooting (“Back the f**k up!”), and (2) he tried to use a lesser form of force — kicking — to drive DiDonato away.

As for style of delivery, the fact that Ung got choked up is a big plus. It conveys to the jury that, far from being a would-be murderer wielding a deadly weapon, Gerald Ung was just a little Asian law student, facing off against a gang of marauding meatheads. If the jurors find this testimony credible, it should be good for at least an Ung jury (geddit?).

A 911 call — made to the authorities by Ung, not by DiDonato or his friends — corroborates Ung’s testimony:

“He attacked me, I had to shoot him – 4th and Market,” Ung shouted frantically to a 9-1-1 dispatcher whom he called on his cell phone immediately after the shooting.

A tape of the call was played to the jury this morning.

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The prosecution tried to go after Ung during cross, but it sounds like they were about as effective as Eddie DiDonato during the brawl:

Assistant District Attorney Jan McDermott, while cross-examining Ung, asked why he didn’t just cross Market Street to get away from DiDonato and his friends, and why he didn’t call 9-1-1 for help before shooting the unarmed man.

Ung agreed that he could have crossed the street, but said he had no time to call 9-1-1 before the shooting because one of DiDonato friends was too close to him.

Two reactions. First, based on prior testimony, it seems that Ung and his friends were already trying to get away from DiDonato and his bros — but they were being pursued, especially by Thomas Kelly, who lunged at the group twice (as shown in the surveillance video).

Second, hindsight is 20/20. It’s easy for a calm and composed prosecutor to come up with alternative courses of action that Ung should have pursued. But all of these events unfolded in a matter of minutes, if not seconds, very late at night, after both groups had been drinking.

Should a young man be convicted of attempted murder, and sent away to prison, for trying to defend himself and his friends? Especially after he tried less extreme options — telling the lacrosse goons to back off, kicking DiDonato — and they didn’t work?

The Philadelphia Inquirer’s account of the cross-examination explores this issue of alternatives in more detail:

McDermott, in questioning Ung, kept returning to the fact that, during the 70-second walk between Third and Fourth, Ung kept up the expletive-punctuated banter with DiDonato’s group and never once tried to run, cross the street or call police on his cell phone.

“You had options, didn’t you?” McDermott asked.

Ung maintained that the incident happened so fast that he never thought of his options, just as he could not remember how many times he fired.

“It was like being in a movie, I was dazed,” Ung said.

“Bad movie,” replied McDermott.

Please, Ms. McDermott — leave the cheap shots and snarky quips to us gossip bloggers.

UPDATE: There’s a very detailed account of Ung’s testimony over at PhillyLacrosse.com (via Snowflakes in Hell). With respect to intent, Ung testified: “I didn’t want him [DiDonato] to die. I didn’t want to shoot him, I didn’t want to shoot anyone.”

At this point, the Ung camp should be feeling cautiously optimistic. Here’s what an ATL reader who sat in on some of the trial last week had to say about the performance of Ung’s lawyer, prosecutor turned leading defense attorney Jack McMahon:

Say what you will about Jack McMahon’s unorthodox tactics — there is a reason that man is a legend. I watched him tear two of the Commonwealth’s independent witnesses to shreds.

Both witnesses gave statements to police that night, then re-affirmed in court, that Ung warned his attackers, “Shut the f__ck up.” It was hard to determine what McMahon could do with such evidence.

Then he began asking the witnesses if Ung could have said, “Back the f**k up,” as in self-defense. After all, the statements sound so similar.

After (very) little prodding, both witnesses admitted they could have heard it wrong. One witness even said Ung might have warned DiDonato to back up, it sounded pretty reasonable to her, and now she wasn’t quite sure.

After that admission, there was little the prosecution could do to rehabilitate either witness. If the people who stood a few feet away and witnessed the shooting couldn’t be sure what happened beyond a reasonable doubt, I can’t imagine a jury could.

Back in his days as a prosecutor, Jack McMahon didn’t like lawyers on his juries. But maybe he feels differently now that he’s a criminal defense lawyer. So, Above the Law readers: How would you vote in Commonwealth v. Ung?

(For purposes of this poll, we’ve simplified matters so that you’re only voting on the main charge of attempted murder. Feel free to discuss the other charges in the comments. You can familiarize yourself with them by reviewing the docket — which even provides statutory sections, for those of you who want to review the specific elements of each criminal offense.)

UPDATE: Read about the actual jury verdict over here.

Defendant recounts Old City shooting: ‘I was dazed’ [Philadelphia Inquirer]
Temple Law student tells jury why he shot another man [Philadelphia Daily News]
Commonwealth of Pennsylvania v. Gerald Ung [Court of Common Pleas of Philadelphia County]
Defense Rests [Snowflakes in Hell]
Defendant Ung testifies in his defense in DiDonato shooting trial [PhillyLacrosse.com]

Earlier: Commonwealth v. Ung: The Other Side of the Story
Prior ATL coverage of Gerald Ung

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