Crime, Trials

Retrying A Case Is Often Trickier Than The First Go-Round

Practice makes perfect, right? Not when you are retrying a case.

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Unhappy judgePractice makes perfect, right?  Not when you are retrying a case. Both sides lose the element of surprise, and often — especially for the defense, whose witnesses are not as experienced as witnesses for the prosecution (i.e., cops) — it’s another opportunity to get tripped up.

Retrials can also be less exciting than the original.  There’s just as much at stake, but both attorneys have already played their hand, making it harder to muster the enthusiasm and excitement if given the same set of facts and list of witnesses.  This is why conventional wisdom has it that a different person from the same office should try the case the second time around.  That person — a second set of eyes — would arguably give the case new life, a breath of the unexpected, and therefore catch the opponent off guard.  Of course this is only possible if you come from a large office (like the public defender’s office or the district attorney’s office.)  Solo practitioners are out of luck.

The biggest disadvantage of a retrial for defense arises if you put your client on the stand the first time around.  It was hard enough to prep him that time, but now, if he testifies again, he has to not only remember what happened the day of the crime, but exactly how he explained it at the first trial.  Any slight inconsistency will be exploited, expanded, and drilled home by the prosecutor in an effort to show that the defendant is a liar.

Then there’s just the amount of additional paper the second trial entails.  Not only do you have the original set of police reports, 911 calls, grand jury minutes, etc., but now you’ve got to deal with the hundreds of pages of transcript from the first trial.  Comparing everything and getting it ready for proper cross-examination is a feat in and of itself.  (A very organized trial notebook is necessary with specific references to which proceeding — grand jury, hearing, trial (page and line) — the info you’ll need to impeach comes from.)

Of course, any defense attorney would prefer to have a retrial then a straight-out loss.  (A retrial can occur for several reasons.  Chief among them are a reversal after appeal or a mistrial, usually because the jury could not reach a unanimous verdict.)

Last week, one of the more interesting cases in New York started its retrial phase.

Defendant Pedro Hernandez once again faces the charge of murder in the killing of young Etan Patz in 1979.

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The disappearance of 6-year-old Etan became every parent’s nightmare.  His photo appeared on milk cartons: “Have You Seen This Child?” It ushered in a new age of parental hyper-vigilance and wariness of strangers.  Even President Ronald Reagan got involved, designating May 25th, the date Etan vanished, as National Missing Children’s Day.

The second go-round isn’t expected to present evidence much different than the first case, and the same lawyers are trying the case.  Most of the testimony comes from the defendant himself in the form of a tape-recorded confession.  Next will be the stream of experts, for defense and prosecution, who will testify why or why not Hernandez’s confession should be believed.

The confession is the core of the case.  There’s no forensic, eye witness, or other evidence implicating Hernandez.

The defense position is that because Hernandez has a low IQ and mental health problems, he could have been persuaded by police, over the course of eight hours of interrogation, to say anything.  The People, of course, believe Hernandez spoke the truth.

Generally with a case so old, and evidence so meager, the odds would favor the defense.  However, the first time around, it wasn’t even close — the jury ended hung with 11 people voting to convict and only one to acquit.

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There’s no way to know if the second jury will feel the same.  This time around, defense hired a jury expert to help them pick jurors more skeptical about cops and more open to the possibility that people under strain make false confessions.

The People are looking for new witnesses (such as Etan’s best friend from childhood) to spin a more personal narrative.

But with the lack of further corroboration, the case could well end in another mistrial.

The standard rule of thumb (although not a rule of law), is that many prosecutor offices adhere to a three-strikes rule.  If they try for a conviction three times and keep getting hung juries, they’ll stop after the third mistrial.

While defense is hoping for an acquittal, another mistrial, while not a win, is still good. It will get them one step closer to dismissal.  Although it’s their policy to try a case three times before giving up, maybe this time two will be the magic number.

Toni Messina has been practicing criminal defense law since 1990, although during law school she spent one summer as an intern in a large Boston law firm and realized quickly it wasn’t for her. Prior to attending law school, she worked as a journalist from Rome, Italy, reporting stories of international interest for CBS News and NPR. She keeps sane by balancing her law practice with a family of three children, playing in a BossaNova band, and dancing flamenco. She can be reached by email at tonimessinalw@gmail.com or tonimessinalaw.com, and you can also follow her on Twitter: @tonitamess.

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