The Defense’s Closing Arguments (cont’d)

My next line of discussion in my closing argument was, of course, to summarize how the prosecution’s witnesses all – without exception -- fell apart on the stand from the combined and individual weight of their own biased and unreliable testimony.

Specifically, I reminded the jury that both Miguel Rea and Ramon Chavarria had been close friends with Victor Garcia for 15 years, but had only known John for a few months (in other words, very little). As a result, I suggested, the jury should use their basic common sense and reject their testimony for the simple reason that it was obviously tainted.

To support that argument, I pointed out the fact that Miguel and Victor’s stories revealed numerous glaring inconsistencies – i.e., constantly changing stories and each of those fraught with internal and external contradictions. See: acbanet.org. I explained that in my experience, the District Attorney’s Office’s witnesses present the story a certain way, then only on cross will admit to more – i.e., they reluctantly reveal the truth of what actually happened.

I then reminded the jurors that none of the prosecution’s witnesses, including Victor and Detective Sellers, were reliable narrators of the supposed/alleged facts. Victor’s testimony was unreliable because of his traumatic brain injury; indeed, Victor himself, I reminded them, confirmed that he had only the foggiest memories of what happened that night, and certainly could not recall anything that happened after he was shot in the head. See: msktc.org (discussing “post-traumatic amnesia”).

As for Detective Sellers (as discussed in more detail below), his one-sided questioning of John was akin to a predatory falcon that zeroes in on its prey and dive-bombs towards it without caring about or paying attention to anything else.

Here, I reminded the jury, there were almost a dozen occasions when John tried to tell him his own version of events – most importantly, that he had only shot Victor in self-defense when Victor attacked him with a sharp metal object; and – once Sellers had informed John that Susan Yang Garcia had been shot and killed by the second bullet – she had been shot accidentally when Miguel next attacked John, thereby causing the ancient Colt to discharge. In other words, I summarized, Seller’s testimony was therefore entirely unreliable and unbelievable.

Next, I reminded the jurors that Victor and Miguel had been so drunk that based on their high blood alcohol content, which I estimated was as high as three times the legal limit – again, LBPD incompetently failed to test their BACs – something that should obviously always be done when you have a homicide and significant alcohol use. See: americanbar.org.

Besides, I said, each juror could use his/her/their common sense and personal experience to determine that Victor and Miguel were extremely drunk – having polished off approximately 90% of the 80-proof whiskey within a maximum time of 90 minutes. See, for example: robbreport.com . Further, the fact that both Miguel and Ramon clearly lied about the alcohol use in order to cover for their good friend Victor underscored the fact that their testimony was biased and unreliable.

I pointed out how incredibly sloppy the LBPD’s investigation proved to be – they didn’t bother testing the BAC of anyone, including John himself. They never tested the blood on Ramon’s pant legs and shoes (from his kicking and stomping of John). Det. Sellers had admitted that he not only had no idea how much was left in the whiskey bottle when police arrived and photographed the purported crime scene.

Sellers also admitted that he (unbelievably) didn’t think the presence or effect of alcohol was germane to the (prosecution’s) case! See, for example: aapl.org.

Indeed, as I stated, the Long Beach Police Department – which had sent over a dozen uniformed officers, at least two detectives (including, of course, Sellers), and multiple technicians (such as a crime scene photographer) -- LBPD had not thought to seize the near-empty bottle, shot glasses, cocktail glasses, the half-empty one-liter plastic Coke bottle, and the large tumbler of Jack-and-Coke – all in-your-face evidence that Victor and friends had been heavily drinking that night – a fact which would obviously support John’s (unheard) protestations of innocence based on self-defense.

But, I reminded the jury, aside from conducting his questioning of John with self-serving tunnel vision (because John’s murder conviction would be a nice feather in his professional cap), Sellers and the LBPD’s biggest blunder was not finding the metal can opener under Ray’s high seat – despite the fact that LBPD had photographed the can opener sitting thereunder as part of the crime scene documentation.

Next, I emphasized the fact that Seller’s own willful blindness was merely mirroring that of the prosecution’s – namely, that DDA Kim had gone to great lengths to exclude the receipt of the whiskey purchase because she knew it proved how quickly the Jack Daniel’s had been consumed for the reasons indicated above. I next circled back to my earlier suggestion that the jury should be using their common sense – and most particularly in regard to this issue: “Why don’t they want you to know?” This had been one of the few evidentiary arguments that judge allowed to proceed in the presence of the jury. See California Evidence Code section 352.

I then summarized to the jury the tainted testimony of each of the prosecution’s witnesses, beginning the most benign --

Ramon Chavarria (also known as “Cabbage” to his friends)

The jury clearly didn’t need me to remind them that Ramon had tried to whitewash Victor’s threatening of John – including his racist remarks – as simply the product of Victor’s “outspoken, flamboyant” personality. The jurors knew that Ramon was present when Victor had said things to John such as “That’s what I hate about White People” and “Get the fuck out of my house”, and that nevertheless Ramon tried to shrug it off as merely Victor “joking”. “But, of course, what else was Ramon going to come in and say – “Yes, my friend was aggressive?”

In fact, I said to the jury (whom I was directly facing the entire time of my multi-hour closing argument), literally everything Ramon had said and done regarding the facts in this case has been to protect Victor – as well as Miguel, who, I said, knew it was his own fault that Susan had been killed after he himself had attacked John.

For example, I told them, Ramon “just happened to have had his head down right before the first shot.” Otherwise, he would have had to directly perjure (see Perjury (California Penal Code section 118) himself on the stand by claiming that he hadn’t seen Victor coming at John with an object – “Would he admit that his close friend did that?” I rhetorically asked. “Wouldn’t that be like ‘snitching’ on your friend?”

Similarly, or as I put it -- “almost miraculously” – Ramon, as he testified, didn’t even see the bottle of whiskey or the shot glasses on the small dining table. Nor did he see Miguel drinking at all – despite the fact that the whiskey tumbler had been photographed as being directly in front of the very chair Ramon had testified Miguel had been sitting in only moments before the first shooting.

“Ramon doesn’t even remember if Susan was sitting or standing,” I argued. “The only facts he can remember are those that put the blame of John for the first shooting, which was caused by Victor himself for trying to maim or even kill John with the ‘deadly weapon’ (see Assault with a Deadly Weapon (ADW) (California Penal Code section 245(a)(1)), as well as the second shooting, which was similarly caused by Miguel attacking John with Ramon’s help. No doubt, I surmised, Ramon had been concerned about his own potential criminal culpability for repeatedly kicking John in the face and head, and stomping on him while Miguel beat him almost to death. Without John being the bad guy here, I stated, perhaps it would be Miguel and Ramon being put on trial for attempted murder (California Penal Code section 664) & California Penal Code section 187(a)) and assault with a deadly weapon (Ramon’s feet).

I also touched on Ramon’s testimony where he had claimed that his memory of that night overall was “blurry” and “foggy” because “everything happened so fast – in only what seemed like a few seconds” (or words to that effect). Therefore, as I told the jury, Ramon – even assuming for argument’s sake that he was being completely truthful – then he may have very well have gotten the sequence of events wrong.

But, I said, Ramon didn’t deserve the benefit of credibility because, again, by pretending he had a foggy memory means he had an “out” because he didn’t have to testify under penalty of perjury about the aggressive and hostile actions of Victor, Miguel, and, again, even Ramon himself. “And this is what good, old friends do, right?” I said to the jury. “They take care of each other because they have each other’s backs. And sometimes that means lying or otherwise hiding the truth.”

“Now both Ramon and Miguel testified that, again, they only saw Victor fall back after Ramon had heard a firecracker sound – a loud ‘pop’, though Miguel heard nothing – but then afterwards John turned, aimed with his entire arm extended at Susan, then shot her to death.” “But this claim makes no sense,” I reminded the jurors, “because even the prosecutor herself admitted John had no motive or otherwise intended to "go postal" – despite the fact that he barely knew Susan, and had only met her a few times at band practice and never for more than a few minutes of pleasantries.

But then I pointed out a major inconsistency – I said that on direct, when Ramon was supposedly imitating John’s physical gestures in shooting Susan, he had demonstrated with two arms extended as if in a T.J. Hooker” shooting stance with one hand supporting the other to steady the gun when it fired. But on cross, he admitted that he had told detectives that night that he wasn’t sure whether one or two arms had been extended. But, I said, when I cross examined him, Ramon seemed certain that John had only extended a single arm – and Ramon even physically mimicked John doing so.

Next, I underscored the fact that on direct, not once did Ramon talk about how Miguel had been punching John or “whaling” away as Miguel admitted he had done that night to Detective Sellers. Instead, I said, Ramon merely testified that Miguel had been trying to “restrain” John as they struggled on the floor. Again, I said, this clearly shows his bias and how he leaves things out or spins things in his and his friends’ favor. See: americanbar.org. Indeed, it was only on cross, I said, that he finally admitted Miguel had repeatedly punched John and that he himself had kicked John once or twice in the face (again, something he omitted from his direct testimony).

On cross, Ramon admitted that Miguel’s beating of John had gone on so long that at one point, Ramon left to place the ancient Colt in a flower pot just outside the front door, then came back to grab Ray, whom Ramon then took across the street to a neighbor’s house. Then, when Ramon returned that second time, Miguel was still punching John in the face and head (and also trying to strangle him as the ligature marks around John’s neck confirmed). In fact, I argued, Ramon was such a hopeless spin-master that he actually testified that John didn’t appear to be physically weak to him – despite the fact that every juror could see how emaciated John was on the stand. “He actually said that John was not physically weak because he and Miguel were struggling on the ground so much that John had made Miguel exhausted. See, Ramon once again failed to testify to the obvious – that is, that Miguel – as Miguel himself admitted on cross – was tired because he had punched John at least 50 to 100 times! That’s how he spins it!”

I next moved on to going over Victor’s testimony – again, he himself admitted that he didn’t remember much about the incident, though he had admitted to taking shots of Jack Daniel’s and drinking from the tumbler of Jack-and-Coke. See: blacktailnyc.com.

Victor also admitted that sometimes he and John had been alone before other band members had arrived – despite the fact that Ramon had falsely claimed that this “never happened” because he himself claimed that he had “always” been present when John was there with Victor. But perhaps conveniently, I said, Victor testified that he didn’t “recall” making any threats at any time to John; nor did he recall saying “Get the fuck out of my house” to him that night.

Moreover, I pointed out, the bullet entry wound across the top of Victor’s head was 100% consistent with him being shot while he had had lowered his head and charged at John with the dangerous object. “What would you have done in that situation,” I said, taking the time to look in each juror’s eyes. “Knowing all that you knew about Victor and your own extremely weak physical state, would you have fired at him to protect your own life?”

Having completely destroyed Ramon in the eyes of the jury, I next turned to --

Miguel Rea

The first thing I touched on was the fact that Miguel, on cross, was only capable of providing shifty answers to every one of my uncomfortable questions. About the only straightforward or honest answer he gave me was his admission that Victor had shown him around the house for about 30 minutes before Victor showed him his assault shotgun, making him feel extremely uncomfortable. But even getting that from him, I mentioned, was like pulling teeth.

Far more “painful”, I said, was eliciting admissions from him that confirmed he and Victor had knocked back the equivalent of about eight shots of whiskey in 90 minutes – or one shot just over every ten minutes. “How drunk would you be if you did that?” I asked. “And how many questions did I have to ask him before he admitted all that information?” I pointed out that at first he would only admit to taking “two or three shots”, and then it was “maybe four shots”. Yeah, right – maybe. And even then, he would only concede that he was “buzzed” but “definitely not drunk”. Definitely. See: reddit.com.

Note: Another barometer of how I believed I had been doing thus far was seemingly confirmed by the fact that several local newspaper/online reporters took the time to speak with me after my closing. They both seemed very sympathetic to John, as revealed by their questions. I’m looking forward to reaching out to them, as well as other periodicals, once the 2nd District for the California Court of Appeal  in California either overturns John’s guilty verdict on Second-Degree Murder (California Penal Code section 192(a)&(b); California Penal Code section 187, or, at the very least, remands it back to the state court – i.e., our trial judge – with the order that she allow a self-defense instruction, as well as a manslaughter instruction, to the jury when deliberating the First or Second-Degree Murder charges (California Penal Code section 190).

I’ll continue my summation and analysis of Miguel’s testimony in my closing in the next blog article.