The Defense’s Closing Arguments (cont’d)

Miguel Rea (cont’d)

I kept hammering home each and every duplicitous statement Miguel had made on the stand, such as when he initially claimed on direct that at the time of the first shot, he had been looking at Ramon – but then later, on cross, he changed his story so that at that time, he was inexplicably facing the kitchen wall. “You heard him say it – he simply wasn’t ‘paying attention’. How do you not ‘pay attention’ when a cannon goes off three feet away from you? Does that make any sense at all?”

Nor did Miguel admit to hearing Victor say anything about White people – “How convenient. Apparently, Miguel had temporary hearing issues – he also told you he didn’t hear the first shot go off, even though Ramon did. But then Miguel, as always, changed his story later – this time he said he might have heard the shot.”

And, I also pointed out, Miguel initially refused to admit that he struggled for the gun and thereby caused his friend’s wife’s death. But then later he said, “I grabbed John’s hand and tried again and again to get the gun out of his hand.”

I then read directly from the verbatim notes I had taken during Miguel’s direct examination. After he tackled John, Ramon told the prosecutor that he laid “on top of him, trying to keep him from moving”, that he (Ramon) was “holding his hands, pinning him down, making sure he couldn’t move”. Miguel had also testified that while they “struggled, John started sliding into the hallway”, “John’s back was on the on floor”, “I kept pinning him down”, “John was trying to get out of my grip”, and “John started gouging my eye.”

As I told the jury, “Yet not once during his direct examination does Miguel say, ‘I punched him’. It was only on cross that he admits he punched John more than 20 times.” I explained that “this shows how Victor’s friends present their version of a story without telling the full truth.” See California Evidence Code section 788 (“Attacking or Supporting Credibility”).

Miguel also testified that immediately after he tackled John, he asked John, “What did you do?”, and that John replied, “He’s [i.e., Victor] a jihad’ or a ‘jaheed’”, but Miguel later admitted that he told the detectives that he couldn’t understand what John had said. Miguel also admitted on cross that John had said it softly and that he – Miguel – might have misunderstood him. See:

I then underscored the fact that there was zero evidence of John being a religious extremist – “You would have heard about it. The police took his phone, laptop – the detective couldn’t remember if they took his iPad too, but you know they did. So if there had been evidence of involvement in terrorism, you would have heard about it.” See California Penal Code section 1523 through Penal Code section 1542 (search warrants).

“And let’s face it – you heard Detective Sellers say that the Long Beach Police Department never called the Department of Homeland Security or any other federal agency, like the CIA, to report John as a possible terrorist. So obviously even the police never believed that the ‘jihad’ or ‘jaheed’ or ‘hee-haw” or whatever Miguel thought he heard John say in his drunken stupor with the sound of the first gunshot still ringing in his ears – was a viable motive. This ridiculous claim shows how out of it Miguel was that he thinks he heard that.”

Next, I emphasized how close to death John had been as a result of the horrific, merciless, and relentless beating Miguel gave him. “He could have killed John with his bare hands in less than a 10-minute period – you heard John testify that he saw stars and started blacking out. Miguel only stopped attacking him because the police got there – less than five minutes after Ramon called 9-1-1. This is exactly why John felt he needed protection.”

And with that, I finished summarizing and criticizing Miguel’s testimony. It was now time to turn to the lead detective on the case --

Detective Sellers

Ripping Sellers apart in front of the jury was almost too easy – after all, he perfectly epitomized the stereotypical caricature of the lazy, dull, and incompetent detective. I methodically ticked off everything that the two jurors would later tell me were Sellers’ most reprehensible qualities.

First, it was crystal-clear obvious that Sellers was completely biased against John from the time the bungling detective arrived on scene at the Garcias’ home. He was too myopic and close-minded to do more than a cursory, one-sided investigation so everything he did after visiting the home was geared towards ensuring John’s conviction. Again, John was facing the following criminal charges:

One count of murder – either First-Degree Murder (in general) at California Penal Code section 187(a), California Penal Code section 188, California Penal Code section 189(a)) & California Penal Code section 190 or Second-Degree Murder (California Penal Code section 192(a)&(b); California Penal Code section 187);

Two counts of Attempted Murder – either Deliberate and Premeditated Attempted Murder (“First-Degree Attempted Murder”) (California Penal Code section 664 & California Penal Code section 187(a)) or “Second-Degree” Attempted Murder (Penal Code section 664);

One count of felony Child Endangerment (California Penal Code section 273a); and

Special Allegation of Personal and Intentional Discharge of a Firearm Causing Great Bodily Injury or Death (California Penal Code section 12022.53(d)).

I then mentioned that the fact that Sellers talked to Ramon and Miguel first supports the defense’s argument that the detective had already made his mind up. In fact, as I reminded the jurors, Det. Sellers admitted on cross that he actually prepared a checklist of everything he wanted John to admit to during the interrogation. “Please recall how on the audiotape, Sellers kept changing the subject every time John talked about how he had been threatened by Victor, about how he felt afraid for his own safety, and about how both Victor and Miguel attacked him. Not once did Sellers ask for details. Instead, on at least those eleven times, you heard the detective shut John down.” See:

“But at the same time, Sellers asked minute details of everything else that he thought would help the prosecution’s case. He admitted to you on cross examination that he didn’t care about whether their main witnesses had been drinking – he didn’t care about how drinking eight shots of whiskey each might have affected their perception and memory of what actually happened that night.” (on how alcohol affects eyewitness recollections).

“You also heard the detective say, ‘I only gather the facts and then the prosecution decides whether to charge the suspect.’ But you all saw for yourselves that he doesn’t gather facts from the other side of the story – here, he only presents a one-sided story to the District Attorney’s Office and of course they file charges.” See:

“In fact, neither Detective Sellers nor Ms. Kim, the prosecutor here, had any idea that John was going to argue self-defense. This came as a complete surprise to them! That’s because the police couldn’t have cared less about John trying to save his own life against not one, but two attackers. – either of who could have easily killed him – Victor with his metal can opener with that hooked claw, and Miguel who would probably have beaten John to death if the police hadn’t arrived when they did.

“And let’s face it – the prosecution wouldn’t have cared if they had heard evidence of John’s self-defense. All they want is a win – at any cost, even if that cost is the truth. They don’t care about justice or what’s right – they only want another conviction.

“But who knows? Maybe the outcome could have been different if they had bothered to listen to what John had been trying to tell them over and over. Maybe John wouldn’t have been prosecuted if they had gone back to look for the can opener. But why would they do that? By ignoring the truth, they have an open and shut case, right? Another notch on their belt.

“And look how eager they were to get that notch – look how fast the police and the prosecution moved on this case. It only took less than 48 hours from the time Detective Sellers finished interrogating John for the DA’s Office to file murder charges against him. Two days to determine the fate of a man’s life – maybe for the rest of his entire life. How long would it have taken them to get John’s side of the story? To go back and search for that can opener? They didn’t even bother to look at their own crime scene photos because if they had, they would have seen the can opener. But I wonder if they would have changed their course of action. I doubt it, don’t you?” See People v. Smith (1993) 13 Cal.App.4th 1184 (finding that a can opener can be a deadly weapon).

“For the last two weeks, you jurors have patiently sat here and listened to the prosecution’s witnesses testifying and Ms. Kim arguing – all so that the so-called People of California – the state, the government – can ensure a victory with John’s conviction. But each of you are the People so let me ask you this – have you heard anything from the prosecution’s side – and, again, that means Victor, Ramon, Miguel, Detective Sellers, and even Ms. Kim herself – that comes across as being impartial or truthful?

“Does it seem to you that they don’t care about the fact that John was nearly beaten to death and all Miguel got was a tiny scratch on his eye? Or that Victor and Miguel were so wasted on whiskey that perhaps that would have caused them to attack John, who hadn’t even had a sip of booze that night? Hell, you even heard Detective Sellers say that he didn’t care about whether they had been drinking, and didn’t care about how that much hard-alcohol consumption could affect aggressiveness and memory. Isn’t that supposed to be his job – to care about anything and everything that could affect both witnesses and the suspect in a murder case?” See: (effect of alcohol use on aggression and violence).

To further support my opinion that the entire murder investigation had been run in a sloppy, slip-shod manner, I said to the jury that Det. Sellers never bothered to re-interview Miguel and Ramon – including even after Sellers had at least gotten snippets of John’s protestations of innocence based on self-defense. Sellers never even bothered to go back to question them about how many shots of whiskey they had had that night. Sellers had definitely heard that much at least from John. See: (importance of follow-up interviews in criminal cases).

Instead, law enforcement put their understandably limited time, energy, and resources into drafting a search warrant affidavit, obtaining the signed warrant, and executing it by raiding John’s father’s house (where John had lived for many years up until the date of his arrest). All they found – which John’s father readily took them directly to (in a hallway closet) – was a box of the .41-caliber Long Colt cartridges, which matched the bullets and bullet fragments found at the purported scene of the crime. Again, when “interviewed” by Det. Sellers, John never denied that it was his own firearm – the famous Wild West-era long-barreled six-shot revolver manufactured by Colt since the mid 1880’s – and that same ammunition that resulted in Victor’s wounding and Susan’s death (and Ray’s near-miss).

“You would think,” I started to the jury, “that at the very least, the Long Beach Police Department and – or the Los Angeles County District Attorney’s Office would at least want to determine whether there were any holes in their version of events in order to shore up any potential weaknesses at trial.

“But that’s certainly not what the prosecution – that is, the combination of the DA’s Office and Long Beach PD – did here. They were completely caught off guard when John testified, right? That’s because they had no idea we were going to be arguing self-defense! I blame this on general apathy and laziness on The People’s part. Think about it – how much more work does it take for the police to investigate and gather evidence in regard to all possible and realistic crime scenarios? Or, instead, they could simply accept the most obvious scenario – meaning that in their highly biased minds, the one that fits neatly in their preconceived notion of what actually happened. It always corresponds to the contemporaneous benefits the prosecution and its team – the LBPD – receives. Every murder conviction is a major gold star in both the ADA’s and detective’s career file.

“Look, cutting straight to the chase, you jurors can all see how this entire prosecution – without exception – has been conducted in such a way that every supposed ‘fact’ you heard from their witnesses, and from Ms. Kim herself, has been utterly self-serving and geared towards ensuring a conviction on all counts.

“See, by virtue of the fact that the prosecution was so willing to gaslight you on most of the major issues John raised in his testimony, such as glossing over how drunk Victor and Miguel were that night, and how badly Miguel and Ramon had beaten and stomped John, you can be assured that this means they’re not willing to tell you the entire truth. They only want you to hear their version of the truth.”

Trial Tip:

I obviously realize that my closing had gone on for more than 90 minutes, which is typically all a jury can withstand before zoning (or dozing) off. But here, as with my closing, I could feel the energy from the jury – it was intense and, to be quite frank, almost intoxicating. What I’m trying to say here is that you should always trust your instincts and go with the proverbial flow. If you feel the jury is hanging on your every word, leaning forward, and sharp-eyed – even after a 90-minute lunch break when they would otherwise be sleepy, and in fact were sleepy during DDA Kim’s paint-by-number closing argument. But in any other circumstances, I would likely caution you to be concise, relatively brief, and circumspect when delivering your closing. In other words, less is usually more.

I continued on: “Their entire ‘investigation’ consisted of Detective Sellers interviewing-slash-interrogating Miguel, Ramon, and then – at past five in the morning, when John was handcuffed to a hospital bed after receiving emergency medical treatment for his severe injuries, including a broken neck, and so was exhausted beyond belief – and probably in a state of mild shock, considering what he had just gone through – that is, almost getting killed by two men you thought were your friends…. You would have thought that at the very least Detective Sellers – or someone else from the Long Beach PD – would have thought to interview John a few days or even a week later, when he would be lucid, coherent, and healed enough to give a clear-eyed interview. If nothing else, but at least to confirm everything John had told them during the first interview, right?

“But that wasn’t necessary here. Once Detective Sellers got everything he wanted during his first interrogation of John, why do any more work? This prosecution was sewn up in a nice neat little bag once John admitted to having intentionally brought the gun to the Garcias’ residence, and once John admitted to having shot Victor. That was it for them – this whole case was wrapped up in a nice little bow for them. Giving any attention to a self-defense theory or argument or claim would simply complicate that end goal. So why even go there?

“To sum things up, this entire investigation took place over that night and the day after, when they got the search warrant and raided John’s residence. Enough time to review the whole case or did they rely on the detective’s version? Of course not.

“The following morning, the DA’s Office filed the following charges. By California law, I’m not allowed to tell you what the maximum penalty is for any of these convictions, much less all of them, but by the nature of the charges, I think you can use your common sense and therefore comprehend what a conviction will mean.”

I promise I’ll finally finish the discussion about my closing argument.