Defense Strategy #2:
Counter Every Prosecution Expert Witness with Your Own (Continued)
The Second Ted Binion Murder Trial (Continued)
My Analysis
I never actually believed Ted Binion had been murdered – the evidence simply wasn’t there, and Dr. Michael Baden’s cockamamie theory certainly didn’t convince me otherwise. But I think he likely did not die from chasing the dragon, because based on my 16 years’ experience representing many defendants charged with drug trafficking and possession, that would not cause an overdose death.
Instead, it was probably the result of something never raised in either trial – that in addition to him swallowing a gargantuan amount of Xanax and Valium, he had washed those pills down with hard alcohol, which is often a lethal combination.
In any event, Tony Serra obviously did an outstanding job defending Tabish at the second trial, and to Murphy’s own counsel’s credit, he was smart enough to hang back and let Tony run the show. Tony also did a great job in proving my point here, which is that failing to counter the prosecution’s experts with your own will almost always eviscerate your defense. So if your lawyer has no plans to do that, it’s time to get a new one.
A final note on the prosecutor’s closing argument where he told the jury they didn’t need to agree on the theory of murder, only that murder was actually committed. In California, this is equally true except for one importance difference. Here, the jury must agree on the degree of murder – i.e., whether it was first or second-degree. And, of course, they must find that each of the elements of that degree of murder has been proved beyond a reasonable doubt.
See Judicial Council of California Criminal Jury Instructions (“CALCRIM”) number 548 (“Murder: Alternative Theories:) at: https://www.justia.com/criminal/docs/calcrim/500/548/.
This same statement in the prosecutor’s closing argument brings to mind another difference in California law that could have derailed the prosecution’s case. Specifically, throughout both trials, the Deputy DA repeatedly argued that Murphy and Tabish first tried to kill Ted by forcing the heroin and pills down his throat. But when the gardener was about to show up, they panicked and “burked” him. Again, the prosecutor argued one or both of these acts in combination killed Ted.
However, when the prosecutor makes such allegations, while the jury need not agree on which of these acts actually killed the victim, they must unanimously agree that at least one of these acts did in fact occur and, more importantly, they must all agree on which act was committed.
See CALCRIM number 3500 (“Unanimity”) at: https://www.justia.com/criminal/docs/calcrim/500/548/
In other words, the law is a bit looser in Nevada so try not get charged with murder there. (Ironically, literally the day before I write this section, I was approached about representing an Angeleno charged with murder in that state.)
The Hillsborough Heiress Murder Trial – Tiffany Li (Revisited)
The Tiffany Li murder trial, which began in late September 2019 in San Mateo County (NorCal), is another excellent example of how defense counsel effectively countered the prosecution’s expert witnesses with their own.
The Prosecution’s Experts
During their case-in-chief, the DA’s Office put on the stand several forensic pathologists who testified that murder victim Keith Green’s DNA had been found in Li’s Mercedes G-Wagon, thereby seemingly confirming the prosecution’s theory that Green – alive or dead – had been transported (and if alive, against his will) from their last known meeting point (a pancake restaurant in Millbrae – a ten-minute drive away) to her palatial home on April 28, 2016.
In addition, those experts testified that gunshot residue had been discovered on a golf bag in Li’s garage, which the prosecution argued proved that Green had been shot (through the mouth) thereat by his former best friend and Li’s new live-in lover, Kaveh Bayat.
The Defense’s “Counter-Experts”
Before your experts testify as to exculpating evidence that negates the prosecution’s incriminating evidence, you’d better have a sharp attorney who “softens up” their experts (like the way Tony Serra did with Dr. Michael Baden, the prosecution’s exert in the Ted Binion murder trials) – or, barring that, the prosecutors themselves – to diminish them in the eyes of the jury. It’s the latter that Li’s attorneys skillfully accomplished.
Specifically, as discussed at great length in the first several articles in this series, her lawyers hammered away at the fact that the prosecution’s tunnel vision prevented them from looking at any other suspects besides Li and Bayat – including Olivier Adella, who had admitted to disposing of Green’s corpse in Sonoma County (and, again, who claimed Li and Bayat had showed up unannounced at his apartment with Green’s corpse in the back of her G-Wagon, and had paid him $50,000 in cash to dump the body).
Then the defense unleashed their experts to put the prosecution out of their misery. First, the defense experts testified that they would have been surprised if Green’s DNA had not been in the G-Wagon in light of their long-term relationship during which he rode therein countless times.
Further, Li’s experts testified that if Green had been shot in the G-Wagon, regardless of any extraordinary efforts the suspects expended to clean it, far more DNA, including blood evidence, would have been discovered therein.
The prosecution, upon cross-examination of the defense experts, got the experts to admit that the defendants could have shot Green with a tarp or plastic sheet protecting the interior of the Mercedes. However, as the defense pointed out during their closing argument, since no “mystery tarp” had ever been discovered, the jury should disregard that non-existent piece of “evidence” as pure speculation – which they did.
See: https://abc7news.com/gruesome-evidence-revealed-in-hillsborough-heiress-murder-case/5569460/
Next, the defense experts testified that simply because a single tiny spec of gunshot powder had been found on a golf bag in the garage did not necessarily mean a gun had been fired therein. In fact, it could have been discharged anywhere, after which the golf bag could have been transported to Li’s garage. Equally important, the defense’s forensic scientist pointed out the fact that no other evidence indicated, much less proved, that Green had been shot in the garage.
And, of course, because the bumbling homicide detectives had never bothered to search Adella’s car – that’s right, the one they knew Adella had transported the corpse in – the defense’s experts testified that there was no possible way to rule out Adella’s vehicle as the murder site. The jurors practically shook their heads at the prosecution’s jaw-dropping oversight.
Finally, one of the defense’s experts – a pathologist for neighboring Alameda Co. – testified that Green’s corpse was so degraded when discovered that it was impossible to even determine if he had, in fact, died from a bullet. Similarly, he testified that it was also impossible to determine the approximate time of death because of the body’s advanced state of deterioration.
In other words, this testimony threw multiple wrenches into the DA’s theories as to cause and timing of death. All you need is one credible witness to create reasonable doubt in the minds of the jurors.
This was also a highly effective way to throw the prosecution’s own evidence in their face – i.e., the numerous photos of Green’s decomposing corpse.
See: https://abc7news.com/tiffany-li-keith-green-kaveh-bayat-olivier-adella/6899189/. See also: https://www.kron4.com/news/timeline-hillsborough-heiress-tiffany-li-murder-trial/.
Finally, the defense’s GPS expert testified that Adella’s version of events didn’t mirror the prosecution’s GPS evidence as far as where Green’s cell phone traveled the night of his disappearance. The defense expert pointed out that cell-tower pings showed that Green’s cell – which Adella confirmed had been on his corpse until he dumped it in Sonoma County – did not travel straight there from Li’s mansion. Instead, it veered off from Hillsborough to Adella’s own apartment in nearby Burlingame before heading north through San Francisco, across the Golden Gate Bridge, and into wine country. This raised a number of obvious questions for the jury, none of which were good for the DA.
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Defense Strategy #3:
Have a Damn Good Alibi
Solid Alibis
According to CALCRIM number 3400 (“Alibi”): https://www.justia.com/criminal/docs/calcrim/3400/3400/, a defense to a crime of murder (or any crime, for that matter) is where you contend you didn’t commit the murder, and that you were elsewhere when the murder was committed.
The key word here is “contend”, meaning that technically, you don’t have to prove that you were elsewhere. Instead, when you claim you weren’t at the murder scene, the burden shifts to the prosecutor, who must then prove beyond a reasonable doubt that you were present and, in fact, did commit the murder as charged.
And, of course, if a juror has such doubt as to whether you were there when the murder occurred, he or she must find you not guilty.
See: https://www.justia.com/criminal/docs/calcrim/3400/3400/
In other words, as the California Supreme Court has long held, you, as the defendant, only have to “raise a reasonable doubt” – as opposed to a “probability” (or any other standard of proof) – that you weren’t present at the scene of the murder.
See People v. Costello (1943) 21 Cal.2d 760, 763 at: https://scocal.stanford.edu/opinion/people-v-costello-23743
Believe it or not, the CALCRIM instruction to jurors isn’t mandatory – your attorney must actually request that the judge give it, at which point he or she has no choice but to do so.
See People v.Whitson (1944) 25 Cal.2d 593, 603 at: https://law.justia.com/cases/california/supreme-court/2d/25/593.html
Larry David’s show Curb Your Enthusiasm Saves the Day
One of the more locally famous examples of an alibi saving an innocent man from a lifetime in prison involved Seinfeld co-creator and Curb Your Enthusiasm creator Larry David.
On or about May 12th, 2003, Angeleno Juan Catalan (twenty-four) went to Dodger Stadium near DTLA to see his favorite baseball team – a last-minute decision which would ultimately spare him unfathomable suffering.
While he was watching the game, a sixteen year-old girl named Martha Puebla was murdered twenty miles away after testifying at a prelim in a gang-murder case wherein Catalan’s brother Mario had been prosecuted as an accessory thereto. The latter would be convicted and served at least 14 years in prison.
Exactly three months later, on August 12th, LAPD arrested Catalan for Puebla’s murder, believing he had killed her to avenge his brother’s conviction. (He had been present in the courtroom during the trial.) Their only evidence was a single person who claimed to have witnessed him shoot the girl in back of the head.
Sadly, but certainly not uncommonly, the prosecutor didn’t believe the statements of Catalan’s friend, cousin, and even his young daughter, who were all with him during the baseball game. After all, this was a gung-ho prosecutor who had never once lost a trial.
Catalan’s attorney shrewdly went to the ballpark to study all the surveillance footage taken that day but it was like finding a needle in a haystack, and his search proved fruitless. But Catalan was a sharp guy, and recalled seeing a film crew shooting footage near where he was seated. His lawyer found out it was a film crew from HBO’s Curb, which had been shooting the now-famous episode entitled “The Carpool Lane”. That’s the one where David picks up a sex worker so he can take the car-pool lane to the stadium.)
Catalan’s lawyer struck gold after viewing their footage – sure enough, there was Catalan and his daughter, enjoying the game.
But still the Deputy DA wouldn’t budge, arguing that Catalan had enough time if had left the game early to have driven to the scene of the crime. (These are the types of prosecutors I love to face at trial – I’ve never lost to even one of them.)
Fortunately, Catalan’s girlfriend had called him immediately after the game so cell phone records proved he was still at the stadium at the time. Even then, however, the win-at-all-costs prosecutor refused to dismiss the case.
All the while, Catalan sat in jail. It wasn’t until almost six months after he was arrested, at the prelim, that the case was dismissed following the court’s ruling.
Based on the Deputy DA’s refusal to dismiss charges based on overwhelming evidence of his innocence, Catalan sued the city for his malicious prosecution and received a settlement of almost $330,000 four years after his arrest.
(The following year, 2008, alleged gang member Raul Robledo was convicted of Puebla’s murder and sentenced to life.)
In 2017, a documentary came out on Netflix about the ordeal entitled Long Shot. See: https://www.imdb.com/title/tt7344360/
See also: https://nypost.com/2017/09/23/how-curb-your-enthusiasm-saved-this-man-from-prison/
Tiffany Li, multi-millionaire heiress (revisited yet again)
During closing arguments, defense counsel (accurately) argued that the San Mateo County DA’s Office failed to present any witnesses, a murder weapon, or any other convincing evidence that proved that either Tiffany Li or her boyfriend Kaveh Bayat shot Kevin Green through the mouth as alleged, or otherwise had anything whatsoever to do with his death.
During the trial, the defense had put on several alibi witnesses for the defendants. According to Valerie Goodwin, a personal friend of Li’s, she had been present at Li’s Hillsborough mansion with both defendants just before Li left to meet Green that fateful night, and that Bayat will still there when Goodwin herself left.
Goodwin also testified that later that same evening – at the time Green was alleged to have been murdered – she had phoned Li at home and spoke to her. During that call, she had heard Bayat speaking to Li in the background. This certainly bolstered the defendants’ claims that they had been home all night following Li’s return from her meeting with Green at the Redwood City pancake house from where he allegedly disappeared, never to be seen alive again.
A second alibi witness, a tenant of Li’s at one of her family’s local properties named Mr. Vu Ho, testified that following her meeting with Green, Li had stopped by to pick up his rent check in person – again, during the time of the alleged murder. (Prosecutors argued that this was a calculated alibi set-up for Li since she usually received Ho’s rent check by mail.)
Finally, a third witness (whose name escapes me) testified that later that night – at the time the defendants were supposedly trying to figure out how to dispose of Green’s corpse – that Li had phone her to console her for failing a securities broker exam. (Again, prosecutors claimed this, too, was a set-up).
But taken all together, and notwithstanding the prosecutors’ unsupported and unsubstantiated arguments to the contrary, these alibi witnesses virtually ensured not guilty verdicts for Li and Bayat.
See also: https://www.kron4.com/news/timeline-hillsborough-heiress-tiffany-li-murder-trial/
Ted Binion’s Murder Also Revisited
Rick Tabish’s defense attorney Tony Serra also called three alibi witnesses to the stand during the second murder trial. Specifically, these were three co-workers of our client Rick Tabish who all testified that Tabish had been working with them from the crack of dawn until the late afternoon.
This directly contradicted the prosecution’s allegations that Tabish had been present at Binion’s home when he supposedly had been murdered sometime after 8:30 am but before 1 pm. Partly thanks to this testimony, he was acquitted.
See: https://lasvegassun.com/news/2004/nov/19/defense-power-of-binion-family-influenced-case/