The Not Exactly Complete Works of Peter Schulman

Circumstantial Evidence

©2010 Peter Schulman


  Chapter 1  

  Chapter 2  

  Chapter 3  

  Chapter 4  

  Chapter 5  

  Chapter 6  

  Chapter 7  

  Chapter 8  

  Chapter 9  

  Chapter 10  

  Chapter 11  

  Chapter 12  

Chapter 13

Court usually starts at a very civilized ten o'clock.

It’s scheduled for eight thirty, but there is so much paperwork and organization to complete that ten is an acceptable accomplishment.

Wednesday was no different. The schedule was saturated and we didn’t get to Patrick until around eleven fifteen.

If you've never been to a courtroom, don’t go there for entertainment. Most of it is deadly dull.

Are the witnesses here yet? Do we have the paperwork? Has the defendant arrived from prison? Can we get him up here already? Oh, opposing counsel had to run to another room for a case? Let’s find something else we can do in the meantime. The arresting officer will be here in five minutes? We'll just wait for him.

For anyone who has trouble sleeping it can be very therapeutic.

A Preliminary Hearing is a pretty simple process. The Commonwealth presents some evidence. The defense can cross-examine and present its own evidence. But, the standard is: If you give the prosecution the benefit of the doubt, is there enough evidence for a reasonable person to convict?

If the prosecution meets this burden, there will be a trial. If not, the case is dropped until they are able to come up with sufficient evidence.

Often, this doesn’t help the defendant. The Commonwealth doesn’t have to show its whole case; just barely enough to convict if everything it says is true.

The Commonwealth showed that Patrick was seen in the vicinity, that his hat was found in the vicinity, that it had his dried blood in it and that his scalp showed recent bleeding when he was taken into custody. They also mentioned he had confessed. This was certainly enough to convict.

Often the defense doesn’t even bring in witnesses. We don’t want to help the prosecution by revealing anything about our strategy unless we can get the case thrown out. I had no witnesses and no idea what Phillip Patrick would say if I put him on the stand.

He was held over for trial. We got a date in December. That could change. Both sides would have a lot of work to do before then, although I had much more work to do if I could not get the confession suppressed, and they had miles to go before they slept if I could.

The Sixth Amendment to the United States Constitution guarantees a speedy trial. It was left for the legislatures and courts to decide what that means. In Pennsylvania, it means within a year if the defendant is released on bail. If he is not, it means one hundred eighty days.

Neither side was in a rush to bring this case to trial. We both needed to try to collect evidence and witnesses. We did nothing to speed up the process.

I handed the ADA a document titled “Informal Discovery Request.” I asked for everything I could think of. I also asked for stuff I couldn’t think of. Of course, they couldn’t give me that, but I would have a chance of getting it when I figured out what it was.

I asked for Janet Reedy’s address books, mail, phone records, insurance records, employment records, information they had developed on her friends and contacts, arrest records, bank records, phonograph records, and any other kind of records I could think of. If the police didn’t have them, I would subpoena whatever I could.

I asked for the autopsy report and bench notes made by the medical examiner while he examined the body. I asked for samples of any fluids they might test so I could have my own tests performed. I also asked for samples of any fluids they were not going to test.

I didn’t know if she had been killed by someone she knew. If it was a stranger, given the lack of evidence, I was unlikely to ever figure out who he was. If it was someone she knew we might be able to develop enough information to figure it out.

I headed to Jenkins Law Library to research the cases on ineffective assistance of counsel. Just because Alfred Boxer had done a bad job didn’t mean an appeals court would find him ineffective. Mistakes of the lawyer are often held against the client.

Even if I didn’t find a case that fit exactly, precedents are not just things to be followed, sometimes a precedent is set.

As usually seems to be the case, there were decisions all over the board.

Strickland v. Washington set the standards. Two things are required: 1) a showing that the counsel somehow screwed up, which the court described as deficient and 2) if counsel hadn’t screwed up, the defendant probably would have been acquitted.

Whenever there is a case like Strickland, which absolutely, positively sets forth a clear, unambiguous standard, there inevitably follow cases which try to explain what it means. That ambiguity was most clearly and amusingly captured in a footnote to Pennsylvania’s leading case - Commonwealth v Pierce. The footnote started by describing how Strickland evolved: “The evolution of this analysis can be traced through the famous vacillations…“ Vacillations, indeed. In Pierce, the Pennsylvania Supreme Court tried to explain that, if you looked at it correctly, our three-pronged test was exactly the same as the two-pronged test in Strickland.

Some of the cases showed so much deference to possible strategies by counsel that had he said his strategy was to await divine intervention, the court would have said, “See, he had a plan!“

Other cases were willing to say of a strategy that made no sense that it made no sense.

On the second requirement, some of the cases almost went so far as to say that just because the defendant was convicted and would likely have been acquitted doesn’t mean he suffered any real harm.

Fortunately, there were cases fairly close to our situation.

I took notes, made photocopies for quotes, and wrote down the complete citations - where the cases could be found by whomever might read my brief.


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  Chapter 13  

  Chapter 14  

  Chapter 15  

  Chapter 16  

  Chapter 17  

  Chapter 18  

  Chapter 19  

  Chapter 20  

  Chapter 21  

  Chapter 22  

  Chapter 23