Monday, July 23, 2012

Tuesday (7/24): Instructions and Closing

Before I go into what happened today, I want to mention that the judge disallowed the DA from showing a picture of Drew during his closing argument. She said it would be "prejudicial." But the defendant has been allowed to parade his kids around each day of the trial presumably to win sympathy points from the jurors. Maybe they couldn't find a babysitter or whatever, but they didn't have to bring them in to the courtroom to hear about how their father hit and repeatedly ran over a person or, as one witness put it, "...murder him... with a .357 magnum." But to disallow the prosecution from simply showing a picture of the victim because THAT would be prejudicial? Totally absurd.

The Judge's instructions were largely a reminder of her initial instructions in the first day of the trial: consider all of the evidence, believe who you want to believe, and try to keep bias out of your decision. She did add parts about the crimes Galo was charged with and what needs to be shown in order for a juror to believe the crimes were committed beyond a reasonable doubt. This part is extremely important for the case because it essentially points to what evidence should be considered.. And there was a lot of evidence presented. She also defined many legal terms such as ordinary negligence and the different types of evidence.

Much of this probably went over their head. It went quickly and without a PowerPoint or something to read it must have been hard to remember the wording of the instructions. And as anyone familiar with the legal world may know, wording is everything. Luckily for us, the DA nailed his closing. It was succinct and clear cut. He laid out (in slides for the jurors to read for themselves) a checklist of things they must find to be true in order to convict Galo. The logical flow of the argument was convincing and clear: answering yes to these questions would mean you must find Galo guilty.

One part that the DA made really clear was about the causation instructions. The jury must find that the act causing death was merely a substantial factor in Drew's death, but not the only factor. If Drew had been shown to be negligent (which was never shown during the case), as long as that negligence was not a substantial factor in his death then Galo is guilty of vehicular manslaughter. And in order to prove Galo's fault the jury only has to agree that he failed to exercise reasonable caution. In other words, was he careless? The DA suggested he was. One witness testified that Galo did not use a blinker. The rest of the witnesses did not see whether he did or not because they were on the other side of the car. Witnesses testified he did not have his headlights on (although the DA never brought this up in closing). It was 5:30 pm in November, approx 30 minutes after sunset. He failed to yield to oncoming traffic, resulting in the collision. The icing on the cake, however, is that Galo was unlicensed. He put his wife and two kids in a vehicle and drove when he was not permitted to do so by law. He never took a driving test, written test, or eye exam that all of us are required to do before we get behind a wheel. This is careless and dangerous and alone should be enough to convict Galo. Failure to yield or use a blinker certifies this man as a bad driver.

The DA addressed the defense witnesses that testified yesterday. He mentioned that they contradicted each other. According to one, Drew was impaired so he was slower to react, but according to the other he reacted too fast, applying the break because he wasn't going to make the light, and skidded into the intersection. (Remind you that the skid marks did not begin until at least a few feet into the intersection).

Finally, the DA closed by attacking the one defense witness who tried to place the blame on Drew. This man was the paid reconstructionist whose income depends on his ability to return favorable results for his clients. He is the only witness with an obvious bias or motive. In the words of the DA, he "cherry picked" the eyewitness testimony to fit his opinion of what happened. As I mentioned before, he even made assumptions that were in direct contradiction of all of the witnesses testimony. The DA did not mention this, but he was also a complete asshole, grinning and smirking throughout his testimony. The DA finished his closing with a set of strong sentences. He mentioned that the defense was calling this an accident, yet there was nothing accidental about anything Galo did that day. It was not an accident that he got in the car without a license. It was not an accident that he forgot to put his blinker, nor was it an accident that he failed to yield to oncoming traffic. These were careless mistakes that resulted in the death of Drew Rosenberg.

After lunch the PD offered his closing. He began by saying that he overheard somebody (a juror?) muttering "game over" after the DA finished. "This is not a game. There are no winners or losers," replied the PD. Well, I can think of at least one loser and he is not in the courtroom. He then moved to the burden of proof, how the prosecution must make their case and leave no unanswered questions or else Galo cannot be convicted. He picked up a sheet of paper which had questions submitted from a juror and slammed in to the ground. Ironically, that sheet of paper had written on it a few of some crucial unanswered questions! One asked if Galo had any previous driving convictions. The answer, which would be inadmissible in court due to aforementioned reasons, would have been "yes."

The PD then showed a powerpoint of his laughable diagrams. These diagrams had been filled in by each eyewitness. When viewed together, they appeared to show inconsistencies. There were slightly different markings for where Drew was, where Galo was, and what the light at the intersection was. Of course you will have slight inconsistencies... these are diagrams (which are utterly disproportional to the actual intersection) and you are asking them to pinpoint positions over 18 months later. Their testimony, which matched what they gave to police at the scene, however, was clear. It didn't matter that they couldn't all agree where exactly the crash occurred on a misleading diagram. This was the beginning of a long line of very weak arguments laid out by the PD in an attempt to confuse the jury and inject doubt in their minds.

The PD began attacking each eyewitness directly. He claimed the first witness was emotionally biased against Galo. He was angry that he "couldn't control the situation," so the jury should ignore his testimony. According to the PD, the witness stated two confusing things: Galo was trying to flee the scene, but he remained in his car well after the crash. The PD shrugged, "does that make any sense?" Yes it does. He was trying to flee in the car which is why he ran over drew twice. Once he realized he couldn't move because Drew was under the car and his helmet was lodged into one of the wheel wells, he remained in the car.

The PD moved onto the diagramming officer. "He was very hostile towards... me." Aww, must be very tough to deal with, sir. "He refused to answer my simple questions." The PD was referring to the questions he asked him about two objects entering the an intersection at the same speeds, etc. I wanted to stand up and shout, "He couldn't answer them because you are a geometrically challenged moron!" And how does this refute his testimony anyway?

The PD continued onto his "hired gun," the reconstructionist. He mentioned that assuming Drew was traveling at 0 MPH at time of impact was "in his favor." Assuming those numbers was only in favor of his own analysis. Taking it as fact, then, would mean Drew was at 0 MPH and Galo was only going 11 MPH. Why didn't he stop? And why would Drew fly forward if he was stopped? It makes no sense because those numbers are arbitrarily arrived at.

The PD wanted to confuse the jury about the turn signal issue. One witness (who was looking at the right side of the car where there would be no blinker) testified that he knew Galo was making a left, and presumed so "possibly because of a blinker." He knew Galo was making a left because he was sitting at the intersection when it was green. He either didn't see the green or was waiting for oncoming traffic to stop so he could make a left. Finally, the PD went back to his reconstructionist. He insisted that Drew was applying the brakes not because of Galo's turn but because he saw a yellow and didn't think he would make it through the intersection. He then posited that maybe Drew saw a red and then panic braked, ending up in the intersection. Assuming the nifty timeline invented by the reconstructionist is in fact true, then that means Galo also entered the intersection even later in the red.

The PD finished with another emotional appeal. But this it stung us bad. He went over to Galo's shoulder and said how devastating this had been for him, that he has had to deal with this for over a year and a half. "Any of us could have been in this situation." I don't know how my dad and I kept calm, but I did notice the judge glanced at me. She may have been waiting for us to erupt, but I think she was saying to me "wow."

The DA got a chance to rebut and get some last words in. He did a good job doing so, reminding the jury of the relatively low standard required of them to convict Galo. We were not asking the jury to have no doubt. That is impossible. But they must reject that feeling that there could be some minuscule doubt. I have to say today ended with both of us feeling much better about the case. Expectations still managed, we had a shot. A few of the jurors were clearly on our side. It was up to them to convince the hold outs.

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