“I wanted him dead. That’s why I shot him.”

How do you prepare a criminal defense for your client?

When I am getting ready for a case, knowledge is power. I mean knowledge that you can demonstrate in a courtroom. When a witness comes in and testifies, to be candid, I assume they are going to lie if they are a witness on the other side. I need to be able to demonstrate that they are lying, and the way to do that is for me to know the case better than they know the case, and being able to reflect that to the jury.

So, just as an example, if you have a case where distance is an issue ̶ people have estimates about distances. Well, it’s not very difficult ̶ just go get the actual distance. Now I know exactly what that distance is. And if I know what their witness estimates the distance to be, and my witness estimates the distance to be, and I know what the distance actually is, now we know which witness is more credible.

That’s just one example ̶ taking the time to get the actual facts. When I was a kid, my father who is an attorney, said, “The lawyer who knows the fact beats the lawyer who knows the law every time.” Now, it’s not absolutely true ̶ you have to know the law, but you’ve got to know the facts. And you never want to guess at a fact that you could actually know.

When you are preparing for a case, you have limited time and resources. How do you prioritize your work?

Keep in mind that my job is not to uncover all of the truth, my job is to defend my client. So, at the beginning, or early on, you develop a theory of your case, a theory of the defense. You generally get this from your client, of course, so when you’re doing your investigation, and you’re clarifying facts, you are doing it to support his theory or what his statement is. So that’s what you’re doing, you are finding provable facts that make your client look good. And that’s just the reality. At the end of the day, the only thing that matters is: what does the jury think, if it’s a jury trial, or what does the judge think at the end of the trial.

Tell me about a case where the facts seemed obvious, but weren’t.

It was an attempted murder case, in south central. A couple was driving down south central, and the wife was in the passenger seat, looking out the window. She sees a vacant lot. She sees my client with his gun drawn. She sees the alleged victim with his hands in the air, a puff of smoke, and she sees the victim drop to the ground. They called 911, and within 5 minutes my client is arrested on a felony stop, guns drawn.

My client says, “What are you arresting me for?” The police say, “Attempted murder.” My client says, “You mean he’s alive? I wanted him dead. That’s why I shot him.” This is the guy I have to defend. Attempted murder charge.

It sounds cut and dried. He admitted he shot the guy.

Right, so identity is not a defense. But when you get deeper into the case, I knew that she only saw the scene for an extremely limited time. So how can I prove that to the jury? It’s not enough to say, well she only saw for a “short period of time.” So I went to the scene. We know where it happened, we know where the body was. The victim didn’t die, but the ambulance had to come and retrieve the victim from the ground. I have the speed of the car, I know where they were, I know where the body was, so now, all I have to do is some trigonometry ̶ the Pythagorean Theorem. Now I can tell the jury, almost exactly, the widest possible window of time the witness had to view the scene. Doing the math, it worked out that she only could have seen this scene for about 2 seconds. That’s all she saw ̶ a moment in time.

We were able to demonstrate that there were things that had happened in that case that justified my client firing the gun. My client fired in self-defense. The reality was that the other individual was actually the aggressor. My client pulled his gun out and told him, “Stop, don’t come forward.” My client retreated. The action of the hands in the air: the other guy did have his hands in the air, but he had his coat pulled up behind him, holding up his coat, so it wasn’t exactly this “hands in the air” type thing. He was being menacing. And the question is ̶ at what point do you get to pull the trigger?

My client is 65 years old. He was a volunteer deputy sheriff out of Colorado. He had no criminal history whatsoever. The other guy was a convicted felon, had been convicted of aggravated assault. Dangerous. He had shot a man. He was at that moment on parole out of Ohio. He wasn’t even supposed to be in Arizona, and it turns out that he was on his way to a crack house to get drugs. He was after money from my client. My client shot in self-defense. All of this comes out during the investigation.

So that’s a different story from what you get from the initial set of facts, from the witnesses who watched the shooting.

You hear sometimes that eyewitnesses memory isn’t all that reliable.

It’s a fact. Eyewitness testimony is the most unreliable testimony that there is in a trial. Any detective knows that. And eyewitnesses don’t even need to have an outside influence to have their memory warped. They can warp their own memory. It sometimes takes nothing, and they now remember it differently than it really happened. This happens all the time!

There are games you can play to demonstrate this at home. Everybody brings a bias to their view of some sort.