Monday, August 05, 2013

Saesee v. McDonald (9th Cir. - Aug. 5, 2013)

Let's discuss a list of things that one should unambiguously not do:

(1)  When you're out barbecuing some meat, and several gang members show up and ask whether you're a member of a rival gang, it's fine to deny that you are.  But do not add to your denial:  "F**k OTs [the name of the gang], f**k Crips . . . . What, you guys gonna shoot me?"  Because you know what?  Yes.  Yes they will.  As they do here.  Killing you.

(2)  When you're the defense attorney charged with defending the alleged killer, it's fine -- albeit risky -- to hinge your entire opening statement on an alibi claim.  Even if that alibi is that your client couldn't have done the killing because he was with his 13-year old girlfriend (!!) at the time.  But do not conclude your opening statement by claiming that the grandfather of the 13-year old was "mad as hell" about things and that you're "counting on him to tell the truth and corroborate" the girl's testimony.  At least when, as here, you then end your defense case by asking the court to "check outside for one witness in the hope he might be here" and, when he's not, saying "The defense rests."  Whenever your opening statement hinges on the testimony of a particular witness, you really need to make sure that witness is going to in fact testify.  Otherwise your client will be convicted.  And the Ninth Circuit will grant no relief.

(3)  One last thing.  I would have thought it went without saying, but then again, I would have thought that about the preceding two points as well.  So here it is:  Don't shoot and kill anyone.  Especially for no reason. Otherwise you'll get LWOP and spend the rest of your life in prison.  As here.

Three important lessons from this Ninth Circuit opinion.