Wednesday, July 11, 2007

McGee May Be Doing Better Than We Think

There is a joke about an Irish lawyer defending a guy charged with having what those of us on the Christian Right (and pretty much all of us who aren't) would call unnatural relations with a sheep. I can't repeat it here, but the upshot is that the lawyer - who is inarticulate and does not know the law -has this knack for picking a jury.

I think Michael McGee, Jr. needs that guy.

McGee has been denied bail in large part because he has allegedly been trying to tamper with witnesses while he was in custody. Although your first reaction to this is that he must be one of the dumbest pols in the long history of municipal corruption, I'm not sure.

He apparently knew that he wasn't supposed to be doing this and he also seems to have known that his phone calls (except to his lawyer) were hardly private.

I wonder if he hasn't decided that his only hope is jury nullification. Given what is likely to be his plain and widespread guilt, that may be quite rational. He needs to pick the right jury and race bait.

If that's the strategy, his continued incarceration is a plus. He needn't be out to help his lawyers plan his defense if he really doesn't have one. It's far more useful to be seen as a racial martyr - a perception that he can count on some commentators to facilitate.

Of course, I don't think that he tried to get bail denied. Sitting in jail is nobody's idea of a good time. It just may be that he isn't going to care as much about the normal concerns of defendants because he is, after all, a McGee and, in any event, this is a defense that is going to be waged on a different set of issues than we are used to. At least until the end, OJ played the race card subtly. I don't know that finesse is something that Team McGee will be able to afford.

My early prediction is that it won't work - at least not completely. Juries are only human and it is possible for lawyers to use their prejudices and to play upon concerns that may not really be relevant to the issues at bar.

But few jurors are willing to completely ignore the judge's instructions. You have to give them a hook upon which to hang whatever sentiments you are playing to. In this case, your first thought is entrapment but it seems like they may have him so many ways that the story line will just get too complicated. The challenge for the prosecutors is avoid turning that into a plus for the defense and to resist the temptation to overtry the case.


Anonymous said...

Do you really think that when an african american defendant's defense lawyer (1) establishes that a testifying lead law enforcement officer has used the word "nigger;" (2) that the officer lied to the jury under oath about it; and (3) the officer subsequently invokes the 5th amendment during the same trial -

this can all be fairly characterized as "playing the race card?" Is that just right-wing code for any reference of a race-related issue in any setting? Was MLK playing the race card? Rubin Carter?

And, yeah, disapproval of bestiality is not a conservative notion. Pretty much a shared value thing.

Anonymous said...

"Is that just right-wing code for any reference of a race-related issue in any setting?"

Slightly more in-depth. The witness's credibility would be called into question by the jury, but the real damage would be the not-so-incidental inference that officer X is a racist and inappropriately and maliciously targeted McGee. It's a good way to take the focus off of the alleged felonies attributed to McGee and put the focus back on race. It's playing the race card, but unfortunately it's also quite persuasive and the focus shifts from the guilt of the defendant to the guilt of the witness.

One must wonder why the police department would assign an officer with such an easily provable set of suspicious facts when everything surrounding McGee is so racially charged.

Rick Esenberg said...

Yeah, I do. The officer's racial attitudes have nothing to do with the case and I think the fact that the defendant managed to spread his DNA (and the victims' DNA) in all sorts of places that it should not be was pretty much dispositive.

Anonymous said...

Rick, I don't know what kind of law you practice, but it seems you are not a trial lawyer. A witness' bias and credibility are always central. The fact that an important witness might (1) have a racial animus against a defendent; and (2) may have lied under oath to the jury in the case; and (3) had to stop testifying, invoking the fifth because further testimony could incriminate the witness criminally - was totally relevant.

Your only real point is that, if you were a juror, you think you would have disregarded the credibility issue and convicted.

In any case, as I understand your response, basically any reference to race is "playing the race card." Which of course is the standard rightwing line; it permits one to entirely ignore and suppress any issues having to do with the role race plays in society. Its intellectually fraudulent and, whatever the intent, has a dreadful impact on fairness and equality, but it is the standard line.

Having said that, so far I don't see any racial issue present in McGee's case. So far, subject to the evidence, it seems McGee is totally lawless and serially ripped off his own constituents among other things.

Anonymous said...

What police officer? What DNA? Are you talking about OJ's trial, McGee, and/or the Jude cops?

Rick Esenberg said...

Anon 12:27

No, actually I've tried quite a few cases. I assume that you are not a lawyer or, if you are, you don't try cases, because you fail to see what was problematic about the Fuhrman episode.

You can impeach the credibility of a witness, but you do not have unlimited license to do it in any way that you please.

Although not everyone would agree, Randall Kennedy, a quite liberal (and African American) law professor at Harvard argued in his book Race, Crime and the Law (I recall it because I've taught from it)that Ito was wrong in allowing Fuhrman to be asked about his use of the N-word. It was too attenuated to the issues in the case or to his general credibility.

It was only after that error was made that Furhman lied in response to the improper question and was then impeached by use of the video (something Rule 608 - actually it's California counterpart - would have otherwise prohibited.)

If you think about it for a moment, there have to be such limitations because trials would degenerate into battles over whether the witness is a good person as opposed to whether the defendant was guilty.

Whether Fuhrman ever used the N-word at any time in any context no matter how unrelated to what was at issue has little probative value and huge prejudicial potential. The fact that it apparently resulted in an obviously guilty defendant walking demonstrates that.

This is so even if you think that the use of the term and his lie about it destroyed Fuhrman's credibility. No one had to believe Mark Fuhrman about anything to see that Simpson was guilty beyond a reasonable doubt.

In that - and a myriad of other ways (wearing patches of African cloth, changing the pictures in OJ's home so that he was depicted with black and not white people when the jury came through), the defense tried to shift the issue from who killed Nicole Simpson and Ron Goldman to some larger question about race, the LAPD and why Mark Fuhrman was on the force. He explicitly asked the jury to stand up and do something about that.

They did. But, in the process of doing so, they let OJ get away with murder.

I know you want to make some global point about the ubiquity of race and conservatives and so on. Good on you. It's good to be a team player.

But the defense in the OJ case still tried to manipulate racial grievances.