In this episode, Attorney Cowan talks about how to win hopeless cases by finding a reason to doubt!
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The second major goal of the fight everything strategy, is to find a defense. Let’s go back to this idea of the hopeless case. The case where, from the moment we walk in the door, it looks like the police have built an air tight, open and shut case against you. You need to find cracks in the armor. You need to find a little hole that we can put our defense crowbar into and then wedge it open to create a reasonable doubt that’ll win that not guilty verdict at trial. And you never know when you start investigating a case where that’s going to be.
Maybe when you start taking statements from witnesses, one of them says, “No, no, no. What it says in the police report is absolutely not what I said.” Maybe one of them says, “Well, yes I did say that. But I went back to the police three days later and I told them it was all a lie, and I took it back. You don’t have that report Attorney Cowan?” Now we’re moving to dismiss for prosecutorial misconduct for not giving us the report. We’re probably not gonna win that motion, but we’ll get the report that says the witness recanted. And we’ll be able to use that at trial to say, “Look, this person wants us to take their word for which of their previous statements was a lie. And is that proof beyond a reasonable doubt?” Maybe we find alternate hypotheses that explain the evidence in which you are innocent of the crime, that first come to us as a result of interviewing the witnesses and visiting the crime scene.
So, in these hopeless cases it’s important not to just accept the police version of the case. Because if you accept the police version of the case, you’ve already lost. And you’re wasting your time and money doing anything other than taking a plea offer. But, of course, you can’t afford to lose. You don’t want to take that plea offer. You don’t want to spend years of your life in prison. And so that’s why we’re going to do a thorough and complete investigation so that we can find a basis to defend your case.
One of the foundations of criminal law that all of this is based on, is the idea that as a defendant in the criminal justice system, you are innocent until proven guilty by the prosecutor beyond a reasonable doubt to a jury of your peers. When you walk into a court room charged with a crime, a lot of people will think, “Oh, you’re there for a reason. The police arrested you for some reason. You’re probably guilty of something.” Now our law says we’re not allowed to think like that. We have to look at you as criminal defendant and say, “There’s a completely innocent man. What’s he doing here? Mr. Prosecutor, what’s he doing here?” And the prosecutor has to bring in hard evidence to prove that you committed a crime. And if the jury of your peers that is deciding whether you’re innocent or guilty has any doubt that you committed this crime, they have to say you’re not guilty.
So, I often say that as a criminal defense attorney, my fundamental job is to sell doubt. When I was a law clerk in the District of Columbia, we had a jury instruction when the judge was explaining the concept of reasonable doubt, they would say, “A reasonable doubt is a doubt based on a reason.” And so in our closing arguments, we would summarize the holes in the prosecutor’s case. We would say, “This witness can’t remember what day of the week the crime happened on, and that’s a reason to doubt. This witness told three different stories, and wants us to take their word for it, and that’s a reason to doubt.” And so, when I fight everything one of the things that I’m doing is I am nitpicking the prosecutor’s case. I am looking under every stone to find a reason to doubt. Because if I can convince one out of twelve jurors that there is something that just doesn’t sit right about the evidence in your case, you walk home as an innocent person.