402
Kennedy, J., dissenting
Quite aside from the prosecutor's predictable response—"He said that in the last case I tried with him too," id., at 620— the rhetoric was an ill fit with the routine, mechanical way defense counsel presented his motion for acquittal, with the jury absent, at the close of the prosecution's case. He gave not one specific reason to grant the motion, his complete argument consisting of the following:
"MR. McMULLIN: I'll file it. I left it in the office. There's nothing exceptional in it. The defendant—that we move for judgment of acquittal for the reason that the State's evidence is insufficient as a matter of law to sustain a conviction and that should be easily disposed of." Id., at 489.
These are the customary dynamics of trial, perhaps; but the whole course of these proceedings served to confirm what the trial judge told counsel at the outset of the case: "I don't have a lot of faith in what's said in opening statement." Id., at 173. Opening statements can be imprecise, and are sometimes designed to force the opposition's hand or shape the jurors' perception of events. When the time came for presentation of the defense case, counsel faced significant obstacles in establishing the alibi he had promised before. Indeed, it is a fair inference to say the alibi defense had collapsed altogether. Two witnesses with no connection to the defendants or the crime identified Lee as the driver of the automobile used by the passenger-gunman. Any thought that difficulties with these eyewitnesses' identification might give Lee room to present his alibi defense was dispelled by two additional witnesses for the prosecution. Both had known Lee for a considerable period of time, so the chances of mistaken identity were minimal. Both saw him in Kansas City—not in California—on the night before the murder. He was not only in town, they testified, but also with the shooter and looking for the victim.
Page: Index Previous 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 NextLast modified: October 4, 2007