McCann's trial strategy

People are starting to second guess McCann's trial strategy. If he made a mistake it was in thinking that he had to anticipate and neutralize the defense as part of his case. There is an old trial lawyer's rule that you want to bring out damaging material rather than get it shoved down your throat by the other side, but I'm not sure that it applied here.

McCann was worried about the fact that there were lots of people at the party (cops) who would not identify the defendants. So he wanted to establish, as part of his case, that there was a police cover-up. That was fine, but, as it was executed, he began his case by calling a bunch of witnesses that did not see anything and then arguing with them about it. But its hard to impeach a witness by simply calling him a liar. You need a prior inconsistent statement or some logical flaw. He may have started the trial by planting the idea that, although something had happened, no one really knew - or would say - who did it.

His error, if that's what it was, was in feeding the notion of a reasonable doubt by overcomplicating his case. Let the defense argue about who didn't come forward. By sticking with Belmore and Schabel (the two responding cops), he would have put in all he needed to argue for the Blue Code of Silence. In fact, it was their testimony that seemed so convincing on this.

Here's where it appears the jury came out. They may have bought - probably did buy - the Blue Code of Silence argument. They undoubtedly believed that some cops beat Jude up. But they couldn't conclude which cops did it because everyone was saying something different and that made it all confusing. And sometimes confusing translated into reasonable doubt.

Hindsight is 20/20, but maybe a streamlined case would have made it seem less confusing. But maybe not. Its easy to second guess.

Jessica McBride has collected a more thorough summary of the testimony of the various witnesses than appeared in the Journal-Sentinel. (Although, in fairness, the paper made reference to the problem with Masarik's cell phone call and some of the late identifications, even if it did not fully lay out the problems that, the former in particular, presented.)

My impression is that the case against Masarik was weaker than I thought. I am still surprised that Bartlett walked. Remember that McCann charged this as "party to a crime" so he didn't have to prove precisely which blows were delivered by whom. Anyone who was participating was guilty.

I don't think this case gets any better as a federal prosecution or even with a different jury. (A federal jury is even less likely to have minorities since it is drawn from the eastern half of the state.) The key thing to deal with now is that a guy went to a party filled with a bunch of cops and got stomped. None of them helped. And almost all of them claim that they didn't know what happened. They should be ashamed. Everyone of them.