In the second of this series of articles about the most effective defense strategies against murder prosecutions, I continue my discussion regarding the critical importance of countering the prosecutor’s circumstantial evidence against you with your own.
I also discuss how a truly gifted defense attorney will use this counter-circumstantial evidence to create a plausible and compelling alternative theory for the jury as to how the killing may have actually occurred – i.e., without your involvement or knowledge.
Defense Strategy #1:
Present Counter-Circumstantial Evidence to
Support Your Alternate Murder Theory (Continued)
The “Hillsborough Heiress” Murder Trial (Continued)
The Prosecution’s Presentation of Circumstantial Evidence
(By the way, I probably should have mentioned this earlier, but neither Li nor Bayat ever took the stand to testify as their attorneys wisely had them take the Fifth to avoid self-incrimination – which I something I usually do in my homicide cases. I don’t think I’m revealing any secrets there.)
The defendants’ alleged motives
The DA’s office kicked off the evidentiary phase of the murder trial by introducing evidence that the prosecutor would later claim established the defendants’ motives for murdering Green. This evidence largely took the form of testimony from family and friends who knew both the decedent and defendants (including Green’s mother and girlfriend), as well as text messages between the three individuals.
This evidence irrefutably confirmed the allegations in the prosecution’s opening statements about the tumultuous nature of Li and Green’s relationship, including their bitter custody battle and ongoing financial disputes.
For example, mutual friends testified that Li constantly complained that Green cared more about her money than he did about their kids. Others testified about how Bayat had skillfully manipulated Li into breaking up with Green so he could take his privileged place in her life.
And then the prosecutor presented circumstantial evidence that Li and Green had broken up after he supposedly discovered her having an affair with Bayat, after which she kicked Green out and moved Bayat into her mansion.
Even worse for the defendants, the prosecution presented evidence that Green had told Li’s parents that he was willing to give up total custody of the girls in exchange for $40 million. In other words, to the jury, it appeared that Green was becoming an increasingly bigger problem in Li’s life, and he wasn’t going to voluntarily leave her or her family alone. See www.thedailybeast.com.
Li’s statements to police and the audio tape
The prosecution then presented evidence in the form of testimony from homicide detectives who questioned Li before and after Green’s body had been found, as well as recordings of those interrogations.
During the first interview, a detective testified to the fact that Li had appeared to be trying to throw them off the scent by telling them, as well as mutual friends who wanted to search for Green, to look south of the Bay Area (in the opposite direction of where his body was discovered).
The prosecution then played the May 17, 2016 recording of the second interview during which the detective informed Li that Green’s body had been found. Li’s appeared to sound unfazed and never once asked how he had died or how she would relay this devastating news to their children, both of which the detective testified was highly suspicious in his experience for innocent spouses in these situations.
The detective also noted that Li’s facial expression remained impassive and emotionless at all times. In other words, the detective clarified, she didn’t appear to be particularly concerned, much less perturbed, by the tragic news. See abc7news.com.
The text messages
Next, the prosecution put up text message after text message on a large screen for the jury to read. These included texts from Green frequently demanding money. After dropping his initial $40 million demand, he then began pressing her to give her brand-new BMW, almost $5,000 a month to cover his living expenses, and almost $30,000 in a single lump sum to cover new furniture for his new apartment in Millbrae.
Li then forwarded these texts to Bayat, who criticized Green’s mercenary attitude and urged her to rejects his attempts to reconcile. See kron4.com.
The phone calls
Although Adella was not called by the prosecution to testify, he was nevertheless constantly mentioned as a co-conspirator by the prosecution, and his plea agreement and a court transcript of his confession relating thereto were read to the jury.
(However, the judge had ruled that the reason for his absence could not be discussed before the jury because it might be overly prejudicial to the defendants – i.e., the only reason he wasn’t testifying was because of a “technicality”, and not because his testimony would have been untruthful.)
Indeed, Adella’s role in the alleged conspiracy was critical for the prosecution in laying the blame on the defendants. As a result, virtually all of the circumstantial evidence presented by the DA’s Office lead directly back to him.
For example, the prosecution presented evidence of numerous phone calls being made to and from the same two phone numbers which were tied to “burner” phones (i.e., untraceable throw-away cells purchased in cash and used by anonymous persons). The prosecution argued that these two burners had been purchased and used by the defendants to cover their communication tracks that day and night. See mercurynews.com.
Finally, the prosecution presented powerful, extremely persuasive evidence of cell-tower pings that showed Green’s phone apparently traveling in Li’s G-Wagon from the restaurant, down to her mansion in Hillsborough, then up to San Francisco, and eventually to its last stop at Golden Gate Park.
The Defense’s Presentation of Their Own Circumstantial Evidence
Fortunately for Li and Bayat, their defense attorneys were thoroughly prepared to counter each piece of circumstantial evidence offered against them.
Li’s reaction to the tragic news
For example, defense counsel cross-examined the detective who had interviewed Li on the second occasion. He grudgingly admitted that upon hearing the news, her voice noticeably dropped in pitch and became solemn, as if she had been stunned.
And then the defense presented an email Li had sent to Hillsborough PD on May 3rd – five days after Green disappeared and eight days before his body was discovered – wherein she explained that she initially thought Green had intentionally disappeared in order to convince her to give him more money. However, she was now worried that foul play had been involved.
The jury sat straight up when Li’s counsel read the portion of the email wherein she stated she believed he may have been kidnapped.
In the letter, Li also sought advice about putting up a billboard in the hopes of locating him. Finally, she explained that she had never experienced anything like this in the past, thereby implying that her emotional reaction may have seemed off to the investigators. See abc7news.com.
The text messages
Next, the defense showed the jury numerous other texts in the months, weeks, and days prior to his death that showed an entirely different side to their relationship. Specifically, these communications revealed that Li appeared to be genuinely concerned for Green’s welfare, that she wanted to help him financially, and that she very much wanted him to be in their girls’ lives as an active, amicable co-parent.
Indeed, only several hours before their fateful meeting, she texted him that she was eager to settle their custody issues and provide him a financial settlement that would result in peace for all concerned parties. In short, these texts eviscerated the prosecution’s portrayal of Li as a vengeful, toxic schemer. See smdailyjournal.com.
The phone calls
The defense then did something every top criminal lawyer should be able to do – use the prosecution’s own evidence against them. Here, defense counsel had the jury (and judge) re-examine Adella’s phone records from the night of the murder.
The defense agreed with the prosecution that there had been a flurry of calls and texts coming in and going out from Adella’s burner that night to two particular numbers of other burners. However, as elicited by the defense during one of the detective’s cross, there was no evidence that either of those burners belonged to either defendant.
The defense followed that up with a vicious sucker punch – they provided an entirely different set of Adella’s phone records, which clearly established that in the days and hours leading up to after the murder, he had been frequently calling phone numbers traced to two other individuals, Mr. Naveen Shriwastow and Charlie Calleja.
Thereafter, the defense turned up the heat by calling Calleja to testify. In response to the defense’s extensive grilling – including questions which, if answered affirmatively, would have destroyed the prosecution’s entire case – Calleja asserted his rights under the Fifth Amendment and refused to answer virtually all of the incriminating questions.
For the defense, this was almost as good as him answering because with this line of questioning, the jury’s suspicion shifted away – for the first time – from the defendants to Shriwastow and Calleja as Adella’s possible co-conspirators. In short, the jury now begin to ponder whether, in fact, Green’s murder had in fact resulted from a kidnapping going awry. See abc7news.com.
Like any superb prizefighter, the defense countered this issue in a completely unexpected manner – they completely agreed with the prosecution’s circumstantial evidence that Green’s phone traveled along the route affirmed by the cell-tower pings.
However, the defense then cross-examined the lead detective, showing him traffic camera surveillance photos, which the latter confirmed showed Adella’s Chrysler following directly behind Li’s G-Wagon – so closely that the detective admitted the pings made it appear as if Green’s phone had been traveling in the G-Wagon, but could just as easily have been traveling in the Chrysler.
By doing so, the detective provided support to the defense’s theory that Adella himself may quite possibly have kidnapped and stashed Green in the Chrysler, then followed Li home, perhaps to personally demand a ransom from her.
The defense then ended their cross-examination on a true cliff-hanger: why did Green’s phone/the Chrysler then suddenly leave from Li’s residence and head north?
An outstanding defense lawyer always answers those cliff-hanging questions during closing arguments, and that’s just what the defendants’ counsel did (see below). See cbslocal.com.
The defense landed another unexpected haymaker when Calleja confirmed that he had a residence in Mendocino County. Far better, he confirmed that the location in which Green’s body was discovered – again, close to Highway 101 – was directly en route to Mendocino County.
Once again, the jury was left with the clear implication that perhaps Adella and his accomplices had botched the kidnapping on the way to delivering Green to Calleja’s home, where they were planning to stash him, then killed Green on the way after things went awry, and disposed of the corpse where it was later discovered.
Lack of defendants’ motives
Next, the defense hacked away at the prosecution’s theories behind the defendants’ supposed motives. Through witnesses and documentary evidence (including electronic communications), the defense was able to provide circumstantial evidence that showed that despite her frustration and exasperation with Green’s money demands, she still appeared to genuinely care about his welfare, and wanted him to be a part or their kids’ lives.
Li’s financial generosity
To that end, the defense presented evidence that Li had been extremely generous with Green. For example, she paid his $40,000-a-year tuition so he could attend a culinary academy to start a new career.
She also gave him her new BMW, paid for more than $20,000 worth of new furniture for his apartment (so the girls would have a comfortable place to stay when she shared custody with him), and gave him over $4,000 a month to cover his needs and wants.
She even paid for his family law attorney to represent him during their custody proceedings despite the fact that she wasn’t required to by law since they had never been married.
Then the defense dropped a major bombshell – evidence (in the form of FaceTime communications) that the couple had only broken up because Li had caught Green in an affair with another woman, and not the other way around.
Finally, the defense provided evidence in the form of social media postings, photographs, and videos that showed Bayat had been extremely supportive of Li and Green having an amicable relationship after their breakup, including going so far as to happily babysit their kids so Li and Green could attend their custody hearings and meet with each other to sort out their differences. See kron4.com.
The sloppy investigation
An exemplary defense attorney will pounce on and exploit any weakness exhibited by the prosecution. Here, defense counsel was able to elicit during cross-examination from the investigating detectives how they immediately focused on Li and Bayat as the primary culprits, and never bothered to look at anyone else as possible suspects.
This left the jury with the impression that the detectives essentially operated with blinders on, unwilling and perhaps even incapable of looking at the larger picture in order to conveniently fit their own narrative of what they think transpired.
For example, in what the jury saw as a significant, if not monumental blunder on their part, the detectives admitted that they had never bothered to impound, much less search, Adella’s Chrysler for forensic evidence – despite the fact that Adella had immediately admitted at the time of his arrest that he had transported Green’s body therein.
The defense then elicited halting admissions from the detectives that by failing to do so, they may have missed critical forensic evidence, such as blood splatters, that would have indicated – if not outright proved – that Green had been murdered in the Chrysler, as opposed to the G-Wagon, as the prosecution alleged.
The jurors were practically shaking their heads in disbelief – if not disgust – at this glaring investigative oversight. See cbslocal.com.
Green’s social media postings
Just as the prosecution had tried to do in regard to the defendants, the defense now presented circumstantial evidence as to Adella’s possible motive for kidnapping Green.
This primarily took the form of Green’s social media postings, wherein he displayed photos of himself living an opulent lifestyle (thanks to Li’s largess), including him luxuriating in expensive locales, partying it up like a rap star at VIP tables in exclusive nightclubs, driving high-end vehicles, and even flashing wads of hundred-dollar bills.
To even the most untrained observer/juror, it would appear that Green was a wealthy man who had access to large amounts of cash and, therefore, a tempting kidnapping target (not unlike Kim Kardashian’s reckless display of her own millions of dollars in jewelry on Instagram that preceded her hotel-invasion, robbery, and kidnapping in Paris in October 2016).
Green’s failed polygraphs
The defendants’ attorneys were particularly savvy during their pre-trial discovery requests to the DA’s Office to identify any polygraphers who may have interviewed Adella, as well as any results stemming therefrom.
As a result, the defense was able to show the jury that Adella had failed on two separate occasions to honestly answer every question pertaining to all the relevant events that fateful night.
This solidified in the jury’s mind that the prosecution was willing to ignore all red flags relating to their star witness in their single-minded obsession with prosecuting Li, whose murder trial was guaranteed to make major national, if not international, headlines.
And with this latest revelation, the jurors no doubt began to wonder if Adella had not been called to testify because he would have perjured himself doing so. See eastbaytimes.com.
An experienced trial attorney knows when the trial – and the jurors – are going his or her way, and no doubt the defendants’ counsel were feeling confident about their chances at this point.
Please read the next article in this series to find out how this trial turned out.
The Los Angeles Criminal Defense Attorney Law Firm (LADALF)
LADALF lead attorney Ninaz Saffari has been representing clients against major felony charges since 2005, including during her four-year stint with the Los Angeles County Public Defender’s Office (arguably the find PD’s Office in the U.S.). Many of these charges have involved homicides. For example, her four previous homicide cases were disposed of as follows:
- People v. T.M.: Deliberate and Premeditated Attempted Murder (aka "First-Degree Attempted Murder") charge under California Penal Code section 664 & Penal Code section 187(a), as well a Strike charge under California Penal Code section 667(a)&(b) & California Penal Code section 1192.7 – Inglewood Courthouse (facing life with parole); result: charge dismissed at preliminary hearing.
- People v. Ryan.M.: Second-Degree Murder charge under California Penal Code section 192(a)&(b) – LAX Courthouse (facing potential life with parole); result: reduced to non-Strike Involuntary Manslaughter under Penal Code section 192(b), three years in prison, out in less than 18 months with time served and good behavior.
- People v. K.E.: Vehicular Manslaughter charge under Penal Code section 192(c) – LAX Courthouse (facing ten years in prison, strike offense); result: reduced to misdemeanor Reckless Driving Causing Injury under California Vehicle Code section 23104, no jail, 300 hrs.’ volunteer work.
- People v. P.L. and Z.L.: each facing possible Second-Degree Murder charge – Pomona Courthouse (potential minimum-15-year-sentence for each defendant); result: formal diversion for both clients followed by dismissal of all charges.