Tuesday, April 12, 2011

The Prosecution - When You Don't Have A Case Slander Everyone

As appellant stated in his opening brief, he has no quarrel with the proposition that
the prosecution may vigorously argue that compensation to witnesses may color their
credibility. (See AOB, pp. 142-143, citing People v. Parson (2008) 44 Cal.4th 332,
362-363), People v. McGreen (1980) 107 Cal.App.3d 504, 514-519.) The core subject of
the present argument is the prosecution’s claim that appellant’s trial counsel fabricated his defense by hiring expert witnesses to give false testimony.


There is a qualitative difference between arguing about the impact of
compensation on witness credibility and accusing the defense attorney of paying money to experts for “ridiculous” testimony “to hide the truth.” There is no requirement that the words “suborned perjury” must be used to cross the line of misconduct. (See RB 124.) It
is clear enough from the language used that the charge was that counsel was dishonest
and paid enormous sums to buy experts to say anything helpful to the defense, no matter
how ridiculous, all in a campaign to hide the truth from the jury. This is to be contrasted
with what the prosecutor told the jury of the prosecution role: "My job, Ms. Do's job, is
to give you the truth." (RT 9549.) On the other hand, the defense role was characterized
as a series of “parlor tricks”: “Mr. Weinberg doesn’t like the truth.” He just moves it.”
(RT 9550.)

Respondent states such comments are proper when supported by evidence: “The
prosecution also may argue that defense counsel intentionally clouded the facts as long as
there is evidence to support that claim.” (RB 125.) There is not the slightest evidence
Mr. Weinberg did anything to buy experts for shaped, preposterous scientific 26 testimony.
In fact, the most reputable, experienced experts were employed, each of whom had plenty
of scientific basis for their expert opinions. (People v. Bain (1971) 5 Cal.3d 839, 847
[“[t]here is no basis for the claim of fabrication by defense counsel, and the prosecutor's
comment to that effect must be deemed misconduct”].)

Mr. Weinberg did not “go out and buy” these experts as most were hired before
the first trial where they testified. This was long before Mr. Weinberg was on the case.
(See Dr. Di Maio [FT 6178 et seq.]; James Pex [FT 7727 et seq.]; Dr. James [FT 7936 et
seq.]; and Dr. Spitz [FT 8205 et seq].) The second trial was a reason for higher costs for
the experts.