PROSECUTION AND DEFENSE OPENING STATEMENTS
IN
THE WIG SHOP MURDER

These opening statements come from the murder case of Goldberg v. State, 95 S.W.3d 345 (Tex. App. - Hous. [1 Dist] 2002) PDR den. 9-10-2003, cert. den. Goldberg v. Texas,  540 U.S. 1190 (2004). (1 - facts of case summarized) The Wig Shop Murder case, which was tried in Houston, Texas, drew national publicity. Pitted against each other in the well of the courtroom were two of the nation's best courtroom lawyers - feisty, down-to-earth prosecutor Kelly Siegler, then in her late 30's, and bull-dog tough criminal defense lawyer Dick DeGuerin, then in late 50's prime fighting shape.

If you are interested in reading the jury arguments given by the lawyers at the conclusion of the evidence in "The Wig Shop Murder," this link will take you to the jury arguments. To keep the case in perspective, I suggest that you first read the opening statements of the lawyers below. These opening statements are, of course, made at the very beginning of the case before the jurors have heard any evidence. Their ostensible purpose is to inform the jurors of what the lawyer intends to prove. This link will provide you with general information regarding how to make an opening statement in a criminal case.

[Editor's Note: I count both lawyers as friends and have always had the utmost respect for each. Both have appeared on multiple occasions as honored guest speakers in trial practice courses that I have taught over the past four decades. Each has brought the real life of the adversarial courtroom trial (1) into the ofttimes sterile classroom. Like every effective courtroom warrior, these two foes each display three vital characteristics -  wisdom, balance and courage.]

The prosecutor: There's the prosecutor you wish for and the one you get. In Kelly Siegler, the citizens of Harris County got both. For over a score of years, Ms. Siegler, like most prosecutors, toiled for low pay and little gratitude from the public that she served. But in the courtroom, she was the brightest star of the Harris County District Attorneys Office. (1)(2)(3) There's seemingly no arrogance or hubris in this woman, just confidence born from knowing she's on the right side doing the right thing. Among other honors, Siegler has even been acclaimed as one of the top forty (1) women litigators in the nation. To victims of rape and robbery and to the family members of murder victims, Siegler was an authentic angel of justice (1). To members of the local criminal defense trial bar and to crooks who fell within the ambit of the Special Crimes Division of the DA's Office, this tough but fair-minded lady embodied their worst nightmare. As the Goldberg case demonstrates, the petite, throaty-voiced Siegler proved time-after-time that she could stand and punch it out in the courtroom with the saltiest defenders. When the dust settled, the defender was typically the one on the floor, and the client was headed for decades in the slammer. So it was in The Wig Shop Murder.

The defender: Legendary criminal defense lawyer Dick DeGuerin (1) has had a list of high-profile clients, raging from politicians like Texas Senator Kay Bailey Hutchison and Republican House Majority Leader Tom DeLay, and multi-billionaire Robert Durst, to a long string of wives and husbands accused of murdering their spouses (1). In this case, DeGuerin met his match.  The Goldberg case was the first of several courtroom contests that would pit DeGeurin against Siegler, e.g., the James Tucker case involving sexual assault by a minister on a member of his congregation, the 2007 David Mark Temple case involving a brutal shotgun blast to the back of the neck wife slaying by an adulterous husband. On each occasion, Siegler has emerged victorious. If DeGuerin has a trial court nemesis, Siegler seems to be it. Still, DeGuerin fights on nobly, true to the defense lawyer's ethic of proclaiming innocence of the client to the last syllable of recorded time. [Note: If ever you or your loved ones are charged with a serious crime, guilty or innocent, I hope you can afford to hire this tenacious, indefatigable  lawyer's services. A spare million might help. See Durst  (1) opening statement.]

The accused: Dror Goldberg comes from a respected, wealthy family in the Houston area. His claims of innocence and a raw deal from the justice system are reflected on an understandably self-serving web site which also solicits money for his appellate lawyer and names for his list of prison pen pals. Mr. Goldberg is currently serving a 45- year sentence.

Background summary of  facts adduced in evidence at the trial: In the late morning or early afternoon of November 27, 1998, a young, white male entered a wig shop at the Weslayan Plaza Shopping Center in Houston, Texas. He walked in, looked around, and left without talking to either Manuela Silverio or Roberta Ingrando, both of whom were working there that day.

At just before 4 p.m. the same day, the same man returned to the wig shop. Mrs. Ingrando saw the man walk up to Ms. Silverio and “punch” her in the neck, so Mrs. Ingrando ran to call the police. The man cut Mrs. Ingrando's wrist, knocking the phone from her hands. He then stabbed her several times, asking her, “Do you like it?” He also told her that he was going to cut her nose and ears and make her pretty. Mrs. Ingrando's husband, Roland, who was working in the back of the store, ran to the front when he heard his wife screaming. Mr. Ingrando threw a tray of hair rollers at the assailant, and then wrestled with the assailant briefly, sustaining several cuts during the struggle. The assailant fled the store.

At the same time, Dr. Randall Beckman was leaving a pet store across the parking lot after purchasing dog food. Dr. Beckman saw the assailant running across the parking lot. Thinking that someone might need assistance, Dr. Beckman got into his car and followed the man across the parking lot. Dr. Beckman saw the man get into a dark Lincoln Navigator and back out of a parking space. Dr. Beckman then passed the Navigator in the parking lot and was able to clearly see the driver, as the two vehicles passed driver's side window to driver's side window. After passing the Navigator, Dr. Beckman turned around and wrote down the license plate of the Navigator.

Dr. Beckman then parked in front of the wig shop and went inside to see if anyone needed his help. He found Manuela Silverio lying in a pool of blood on the floor and Mr. and Mrs. Ingrando hysterically trying to telephone the police. Dr. Beckman tried to revive Silverio, but she was dead. Mr. and Mrs. Ingrando were taken to the hospital. Mr. Ingrando's injuries were minor, and he was soon released. However, Mrs. Ingrando required surgery and was hospitalized for at least a week.

Dr. Beckman was interviewed at the scene of the crime, and he gave the police the paper upon which he had written the license plate number of the Navigator. He also described the assailant as a white male, approximately six feet tall, 18-19 years old, 165 pounds, with short-to-medium sandy blonde hair.

The police ran the license plate number provided by Dr. Beckman and discovered that it was registered to Loren Nelson, who lived nearby at XXXX Dunstan. Loren Nelson, now Loren Goldberg, lived with appellant's father at that address. Several officers drove to the XXXX Dunstan address and located the Navigator in a covered parking area behind the house. One of the officers touched the hood of the Navigator and it was still warm, but no one was at home at the residence except the housekeeper, Marleny Vilorio. Ms. Vilorio told the officers that Dr. Goldberg and Loren Nelson were out of town and that appellant, Dror Goldberg, had been left in charge of the house. The keys to the Navigator were in the house.

At 6:07 p.m., Dror Goldberg drove up to XXXX Dunstan in his white pick-up truck. Officer M.L. Sampson approached appellant and asked if he were Dror Goldberg. Dror Goldberg said that he was, and Officer Sampson handcuffed him, performed a pat-down search, and informed appellant of his rights. Dror Goldberg indicated that he understood his rights and indicated that he would be willing to talk with the officer.

Dror Goldberg was later uncuffed, and he talked with the police about his whereabouts that day. He also executed consent  forms for the police to search: (1) his father's residence at XXXX Dunstan, (2) his own white pick-up truck; and (3) his apartment at 4301 Bissonnet. While at XXXX Dunstan, police noticed blood on Dror Goldberg's shirt and a red mark on his chest. They also seized the Navigator and had it towed to the police station, where it was later searched pursuant to a warrant. Fibers matching wigs at the wig shop were recovered from the Navigator. Before searching XXXX Dunstan, the police took a Polaroid photo of Dror Goldberg.

At 8:07 p.m., the police completed their search at XXXX Dunstan and transported Dror Goldberg to the police station. During the ride to the police station, Goldberg told the police officer that the Navigator had been stolen in the past, but that every time it was stolen, the thief always just returned it. At the police station, Goldberg gave police his finger and palm prints. He also executed a waiver of the presence of an attorney and participated in a videotaped line-up. At approximately 11:00 p.m., Goldberg was released and went home with his mother.

Meanwhile, at 8:30 p.m., Dr. Beckman looked at a photo array containing the Polaroid taken of Dror Goldberg and indicated he was 80% certain that appellant was the man he had seen running from the wig shop. Dr. Beckman and Mrs. Ingrando were later shown the videotaped line-up and both identified Goldberg as the assailant.

Mr. Dror Goldberg was indicted for murder on February 17, 1999, but efforts to arrest him were fruitless because he had left the country. A federal warrant was issued for his arrest, and he was arrested at the Frankfurt Airport in Germany on June 21, 1999.

THE OPENING STATEMENTS OF COUNSEL

PROSECUTION OPENING STATEMENT
DEFENSE OPENING STATEMENT

ARRAIGNMENT OF THE DEFENDANT

THE COURT: Arraign the defendant.

THE PROSECUTOR: (The prosecutor reads the charge and the accused enters his plea.) This is Cause Number (state the number). Paragraph Number One: "In the name and by authority of the the State of Texas. The duly organized Grand Jury of Harris County ,Texas, presents in the District Court of Harris County, Texas, that in Harris County, Texas, (name the defendant), hereafter styled the defendant, heretofore on or about November 27th, 1998, did then and there unlawfully intentionally and knowingly cause the death of Manuela Silverio, hereinafter called the complainant, by cutting and stabbing the complainant with a knife."

Paragraph Number Two: "It is further presented that in Harris County, Texas, (name the defendant), hereafter styled the defendant, heretofore on or about November 27th, 1998, did then and there unlawfully intend to cause serious bodily injury to Manuela Silverio, hereinafter called the complainant, and did cause the death of the complainant by intentionally and knowingly committing an act clearly dangerous to human life, namely, by cutting and stabbing the complainant with a knife.

Against the peace and dignity of the State. Signed by the foreperson of the Grand Jury."     


THE PROSECUTION OPENING STATEMENT

THE PROSECUTOR (Ms. Siegler): (Note that the first sentence out of the prosecutor's mouth is the conclusion that the prosecution will ask the jury to draw at the end of the case. This statement is called an "asservation" - an assertion made in a very positive way. The prosecution's case begins with the defendant (the antagonist or villain)  being labeled "a killer." Labels are very important in the persuasive process, e.g., "terrorist "vs. "freedom fighter, "  "Axis of Evil" vs. "homeland." One man's terrorist is another's freedom fighter. One woman's Axis of Evil is another woman's homeland. ) (Name the defendant) is a killer. And the evidence in this case will show you that the people in this world who think they know him best know him the least.

(The prosecutor sets the scene and begins telling the State's story of the case.) On November 27th, 1998, the busiest shopping day of the year, the day after Thanksgiving, in the Weslayan Plaza strip center in the back part of the plaza in a store called Wigs By Andre, it was a slow business day that afternoon.

(The prosecutor introduces two primary characters (protagonists), linking the word "victim" to the deceased. The defense does not object to the label. Why? Because the defense will not dispute that the deceased in this case was indeed the "victim" of this crime. ) You're going to hear testimony that at 4:01, this defendant came into the wig store for the second time that day, and in the wig store working that day were two people: Roberta Ingrando, who survived, and Manuela Silverio, who is our victim. Roberta Ingrando is going to testify to you about what happened that day. She's going to tell you at 4:01, she and Manny (Note: The prosecutor personalizes the deceased victim, Manuela Silverio, by labeling her as "Manny." This label will be used consistently throughout the prosecutor's opening when referring to the murder victim. The defense also uses this label.) were sitting and talking about closing down early that day, talking about smoking a cigarette when in walked this man (indicating the defendant).

She'll tell you that the defendant went up to Manny, Manny started to hurry toward the back room of the wig shop, and Roberta heard Manny say something like, "You must be kidding," when the defendant attacked her. The defendant went up to Manny Silverio and stabbed her two times, once in the abdomen area and once in the throat, causing her to fall to the floor of the wig shop and die.

Next, Roberta's going to tell you that when this started to happen, because everything happened very quickly, she ran to a phone in the back room to try and call 911. As she was on the phone, she thinks with 911, the defendant came up to her and slashed her wrist causing her to drop the phone. And then she's going to tell you that this defendant came up to her and got as close as almost face to face. She could feel his breath on her face, and he began to, she thought, punch her, over and over and over again. And the words that he said to her were these: "Do you like it? Now I'm going to cut your nose. And now I'm going to cut your ear. How does it feel? Do you like it?"

And she'll tell you that he talked to her as if he were making love to her, and she thought she was just being punched. (The prosecutor introduces another character in the story) And she'll tell you that the most vivid thing she remembers at the end was seeing her husband come into the room from a back room of the wig store. Her husband, Roland Ingrando.

(Note the prosecutor's use of the colloquial Southern expression "y'all"; although listed as one of the 50 best female litigators in the United States, this lady prosecutor remains folksy with jurors.) Roland will testify to y'all that when he came into the wig store, he thought his wife was just being punched, and he took a curler tray and threw it at the defendant to try and make him stop punching and beating up on his wife. And then the defendant went up to Roland Ingrando and stabbed him twice, only Roland also thought at the time he was just being punched.

(The prosecutor faces the indisputable fact that there was no blood from the defendant found at the crime scene and that, as the assailant fled, the two survivors saw no blood on each other, even though each had been stabbed. The prosecutor blunts the absence of blood  by telling the story in such a way that makes it seem that blood flowed freely only after the assailant departed. This is called facing the weakest part of your case and turning lemons into lemonade.) Now, Roland and Roberta Ingrando will testify to you that in the instant, if you could freeze time, that this defendant ran out of the store, they both at that time still thought they'd been punched. They both saw no blood on each other, and Manny was laying over to the side, face down in her own blood. Because you're going to hear from the evidence that there was no blood found anywhere in the crime scene that belonged to this defendant.

(The prosecutor takes a "all our cards are on the table" approach, telling the jury it has nothing to hide, e.g., the prosecution will introduce all the blood DNA evidence recovered and that it all belonged to the three victims.) The State will bring you all of the DNA evidence. We've got nothing to hide. The DNA evidence is going to tell you that all the blood in that store belongs to Manny, Roberta, and Roland, because they're going to testify to you that after the defendant left the store that day, Roberta was basically hysterical. They went to every phone in the store they could find trying to call for help. They were all over the store tracking their own blood. Roland even went outside on the sidewalk, tracking his own blood as he waited for the ambulance to show up.

(The prosecutor continues to embrace potential weakness or gaps in her case, e.g., revealing total absence of any DNA and fingerprints that link the defendant to the scene; the prosecutor concedes without reservation that robbery was not the motive.) Police officers arrived. The scene was processed. The State's going to tell you about all the evidence. There wasn't any DNA that links to this defendant. There was no blood recovered in the getaway truck that belongs to the defendant. There were no fingerprints in the whole crime scene that belong to this defendant. No money was taken from the cash register. No jewelry was taken from any of the three victims. No purses were taken, and there were three of them left there. No wallet was taken. Robbery was not the motive.

(Instead of saying, "We can't prove that rape was the motive," the prosecutor puts it differently, saying that "is a question you will have for the rest of your life.".) Whether or not this defendant intended to rape Roberta Ingrando is a question you will have for the rest of your life.

(The prosecutor asks herself a rhetorical question assuming that it comes from the jury, e.g., "Well, you say, 'Kelly, why are we here?' " This rhetorical device allow the trial lawyer to explain as though answering a question from the jurors. This is very effective for trial lawyers and, if you watch famed Pastor Joel Osteen, for preachers as well.)   But as the police showed up that day, things began to happen very, very quickly. You ask yourselves, "Well, then, (the prosecutor uses her own name), why are we in a courtroom today with this man indicted for murder?" This is why.(The prosecutor introduces her star eyewitness (the "hero" or true protagonist), labeling him as a "miracle" and by his full name and describing him briefly.) Driving down the parking lot that day was a miracle and that miracle was a witness whose name is Randall Beckman. Randall Beckman is a doctor. He's a resident. And he will testify to you that, at 4:01, he had just bought some dog food from the Petco right across the way from the front door of the wig store. As he was driving away from the Petco, he saw a man, this defendant (pointing to the defendant), running out the door of the wig store, and it drew his attention because the man was running out in such a hurry that he thought, "I wonder if that guy needs some help? I wonder if something's wrong? Maybe I can help."

(The prosecution's story continues, focusing on what the "miracle" eyewitness, Dr. Beckman, saw.) So, Randall Beckman will tell you he followed this defendant all the way from the front door of the wig store about 150 yards away to the point where this defendant climbed inside a truck. Randall Beckman will tell you that during the time he followed him, the defendant turned and looked at him at least two times. When the defendant got inside the truck you'll hear described as a new black Lincoln Navigator with luggage rails on top and sideboards on the side, the defendant looked at Randall Beckman. As he drove off, they passed each other, driver to driver, as the defendant drove away from the scene.

Dr. Randall Beckman will tell you as he drove away, he wrote down immediately the license plate number of that Navigator, 1WL V84, and he will tell you that he's 100 percent sure that he wrote down the right license plate number.

Dr. Beckman, then thinking "I wonder if I need to go back in the wig store and see what was going on in there," went on into the wig store and found Roberta and found Roland and tried his best to save the life of Manny, but he was too late.

With that license plate number, Houston Police Homicide Division immediately went to work. They took that license plate number, they ran it on their computer, and they found an address belonging to that truck. That address is XXXX Dunstan, minutes away from the wig shop. You're going to see a videotape of how long it takes to drive there - how long it takes timewise to get there.

So, the officers immediately went to XXXX Dunstan to see if a black Lincoln Navigator was there. They found the truck. The hood was warm like it had just been driven. Who walked up but this defendant, dressed in different clothing, approximately two hours later. (The prosecutor suggests the reason why the defendant was cooperative when first confronted by the police.) The defendant walks up, polite, cooperative, the whole way through with nothing to hide. I mean, what evidence did he leave behind?

(The prosecutor faces the possibility of defense evidence that might raise a defense alibi claim and, without mentioning "alibi," puts a spin on the facts that would deflate an possible defense alibi claim by showing a window of opportunity for the defendant to have committed the murder. *) The police questioned him where he'd been at 4:00 o'clock that day. You're going to hear through testimony today that this defendant can prove to you that ten minutes until 4:00, one of his friends was talking to him on the telephone. At 25 minutes after 4:00, this defendant was present in front of nine of his friends at a football field, playing football, again, minutes away from the wig shop.

(The prosecutor alerts the jurors that they will see a timed videotape showing the route the State will contend the accused took from the wig shop to his father's home and then to the pickup football game.) We have a videotape that will show you the route from the wig shop after the murder: home to XXXX Dunstan, which is where his father and his father's now-wife now live; to the Stop 'n' Go where the defendant made a phone call; to the football field where he eventually ended up. And we'll show you how long a time it takes to travel that route. (The prosecutor makes her point regarding any possible defense alibi without mentioning alibi, i.e. you will not hear one single person except for the surviving stab victims tell you where the defendant was at  4:00 p.m. on November 27th. Is this an improper comment on the defendant's anticipated exercise of the 5th Amendment privilege not to testify? Apparently not because the defense does not object; if the argument is objectionable, hasn't the defense waived error by its failure to object?) You will not hear in this trial one single person, except for Roberta and Roland Ingrando, who can tell you where this man (indicating the defendant) was at 4:00 o'clock on November 27th.

(The prosecutor reveals that one victim is unable to identify the killer but blunts the negative aspects flowing from that concession by coupling it with the strong eyewitness identification evidence from one stab victim, Roberta, and the "miracle" witness, Dr.Beckman.) A photo spread and a video line-up were eventually shown to Roberta Ingrando and Dr. Randall Beckman. They identified this defendant each and every time. Roland Ingrando will tell you just like he told the police, "Honestly, I lost my glasses in the struggle, and I can't identify anybody."

(The prosecutor tells the jury that fibers were recovered by the crime lab from the otherwise "spotless" getaway car.) You will also hear that that Lincoln Navigator was seized and taken down to the Houston Police Department and processed as a crime scene the following Monday morning. A lady with our Crime Lab, whose name is Reidun Hilleman will tell you this: First of all, that Navigator was completely spotless, but she found in the driver's side section of that Navigator eight synthetic fibers. She'll call them "modacrylic fibers." Seven of those eight fibers will say this -- and you'll get to see this with your very own eyes.

(Fibers from the car are consistent with fibers in the wig shop.) The fibers recovered from the floor area of the Navigator -- and I'm talking about where your feet would be on the driver's side , the side lever where you adjust your seat , on the right in the console area where there's coffee cup containers -- seven of those fibers are completely consistent with the same types of fibers found in the work area in the wig store where the struggle happened between the defendant and Roberta, completely consistent with the type of fibers recovered off the body of Manny, both at the store and when they did her autopsy. All those fibers are the same types of fibers.

(As to motive, the prosecutor recognizes that the jurors will ask themselves "Why would he do it?" and tells them of the accused's letters that reveal a violent state of mind.) Still, you ask yourself: But why? Why would a man like that do a crime like this? The evidence will show you that in (four years ago) the defendant had a friend who he grew up with, a man named Josh Vogel. Josh Vogel spent three years with the Israeli Army. During the three years that Josh Vogel spent in the Israeli Army, this defendant wrote letters to him and you're going to hear a lot of people during the course of the trial say that this defendant is not the kind of man who would do a crime like this. But Josh Vogel will tell you that this defendant told him a lot of things he didn't tell anybody else, and you'll get to read those letters.

(Evidence of accused's inner rage will be offered.) Those letters say things about the rage that fills him, that burns for release. He has a woman friend that is scared of him. She's scared due to the anger she feels coming out of him. He talks about wanting to cut the throat of a girl that he's dating. He talks about feeling himself change into a violent young man, and he likes it. That's the kind of man that the real world doesn't know about.

(The prosecutor details the defendant's trip to Israel and Bangkok, his overstay in Bangkok after being indicted, and his arrest at the Frankfurt, Germany airport; the prosecutor concedes that the defendant did have a ticket to Miami via Mexico City, but emphasizes that the defendant did not have a return ticket to Houston when arrested in Frankfurt.) This defendant was indicted for this offense in February of (last year). After the murder, he went to Israel. He came home from Israel around the end of January (last year). He went to Israel that time after the murder using his United States passport. When he got home from Israel, he went down to the Israeli Consulate here in Houston and got his Israeli passport extended, because it had expired long before, to make it good until this year . Even though he never uses his Israeli passport, he had it extended.

The same day he had his Israeli passport extended to make it good to travel with, he got on a plane and went to Mexico City, January 26th of 1999. Three days after that, he flew to Bangkok, Thailand. When he entered Bangkok, Thailand, he was told by the country to leave that country February 27th of  1999; but he got indicted on February 17th, 1999. A warrant was issued for his arrest, and he didn't leave Thailand, and he didn't come home. He stayed in Thailand four more months.

You'll hear from the evidence, on June 21st, 1999, this defendant got arrested at the airport in Frankfurt, Germany. And the German officer who arrested him will testify to you about what the defendant's explanation is of what this murder is all about back in Houston. And this German officer will tell you that the defendant told him he was leaving Thailand to fly home to Mexico City to then fly to Miami, Florida. And in his possession he had no ticket anywhere at the time bringing him back to Houston.

(The prosecutor concludes with reference to the omissions that the defense will harp upon, i.e., the weakest part of the prosecution's case, and contrasts that with the tragedy of a death of the middle-aged victim who raised two daughters and whose joy in life was making wigs for cancer victims. The final words focus on the fact that the defendant killed the victim just because he "wanted to kill somebody.")   In all this evidence that you're going to hear for approximately the next two weeks about the fact that there was no blood found in the Navigator, there were no fingerprints anywhere connecting this defendant, that there was no DNA that links back to this defendant, the State never recovered a murder weapon, all of that, (Is what comes next a tiny jury argument designed to evoke sympathy when juxtaposed against the defense factual proof?) but one thing is going to be lost, and that is the sad true fact that Manuela Silverio lost her life at the age of 54, and she left behind two daughters that she raised all by herself. She came over here from Cuba, and she did a job which she loved, which was fixing the wigs for people who were cancer victims to try and bring some comfort in their lives, and she loved that job, and now she's dead. (The prosecutor ends the opening statement with a rhetorical question and answer.) Why is she dead? Because this defendant just wanted to kill somebody!

THE DEFENSE OPENING STATEMENT

DEFENSE COUNSEL (Mr. DeGuerin): (Notice the acknowledgment/greeting where defense counsel acknowledges his opponent, his client and his client's family who are in the courtroom.) Counsel for the prosecution, (name the defendant) and his family. (At the very outset, defense counsel informs the jury of the defensive theory of the case , i.e., misidentification; the defender also lets the jurors know that they will hear from an expert (Dr. Loftus) about eyewitness testimony.)  This is a case of misidentification. The experts will tell you that the most persuasive and yet the least reliable evidence in criminal cases is eyewitness identification testimony. The expert will tell you that the desire to find who's responsible is a very powerful desire, and the experts will tell you that a person who resembles the actual culprit is likely to be misidentified because of that.

(The defender tells the defense story of the case.) The experts will tell you that what you look for is a change in the eyewitness' perceptions. And so, what the evidence will show in this case is that soon after Manuela Silverio was stabbed twice and died and soon after Roberta Ingrando was stabbed14 times and almost died and soon after Roland Ingrando, her husband, who came to her rescue and wrestled with the killer was stabbed twice, the police showed Roberta Ingrando a videotape that had (name the defendant) in it.

You'll see that that videotape was rather skewed. You'll see that rather than trying to find persons who fit the description given by the witnesses, and the description was a young man, blond hair, short hair, about six feet tall, anywhere from 140 pounds to 180 pounds, dressed in a black jogging outfit with white stripes on it, rather than trying to fit the fill-ins in that line-up to that description, three people were at least two to three inches shorter than the description. Two people were at least an inch taller than the description.

Although the description was of a young man with no facial hair, the evidence will show that two of the people in the line-up had facial hair, mustache, and goatee. And although the description was of a white male, one of the persons in the line-up was clearly a Hispanic male.

And the evidence will show that when shown that video, Roberta Ingrando, rather than being certain, was very tentative in her identification of (name the defendant) as perhaps the person who stabbed her. It will show that she said she was not certain, she was pressed, and the evidence will show that the detectives pressed her: "Well, how certain are you that you have picked out this man?" "Can you give us on a scale of one to ten how certain you are?" And the evidence will show that she hesitantly said, "About 80."

The evidence will show that the officer said, "Well, do you want to file charges on this man?" And her answer was, "I want to find out if it's the right one."

And the evidence will show that (Notice the repetition.) now, now, some year and a half after the event,  she says that she's 100 percent certain. And the evidence will show that what's happened in the meantime is that (name the defendant) was accused and (name the defendant) face has been splashed on the front page of all of the newspapers in Houston numerous times. The evidence will show that a local newspaper called The Southwest News and sometimes it's called The Village News, the same newspaper, has, on a weekly basis, spread biased news reports accusing (name the defendant) of this terrible crime. And the evidence will show that Roberta Ingrando watched news reports of (name the defendant) being brought in from Germany and now says she is 100 percent certain.

Randall Beckman, the young man who was in the parking lot, here's what Randall Beckman told the police. First, he said he saw a young man run out of the wig shop, and he described this young man about six feet tall, 18 years old with blond hair, and he said that he had on a black jogging suit. Dr. Beckman followed -- Dr. Beckman was in his car, a small Volkswagen Golf, and Dr. Beckman says he followed this person as the person ran through the parking lot.

(Defense counsel uses a visual aid, i.e., a diagram of a portion of the strip center parking lot, on the document camera in opening statement to illustrate the scene and location of witnesses.)  This is a diagram of part of the parking lot, the part that really makes a difference here. I'm going to zoom in just a bit closer so you can see. You may not be able to see where I'm pointing is the wig store, Wigs By Andre. It's the north end of the Weslayan parking lot, the west side of Weslayan and the north side of Bissonnet. Dr. Beckman says that he, Dr. Beckman, had come out of the Petco store and gotten in the car, and he was driving out when he saw a young man come out of the wig shop and run to the west across the parking lot.

Dr. Beckman then drove his car behind this young man and followed the young man until the young man ran through the parking lot and got into what Dr. Beckman described as a dark Lincoln Navigator.  Dr. Beckman says that the dark Lincoln Navigator backed out of its parking place and sped off out of the parking lot. Dr. Beckman said that he tried to get the front license plate, but he couldn't. (Defense counsel tells the defense story to make room for doubt about Dr. Beckman's accuracy in writing down the license number of the getaway car.) He said that he then turned around as the car sped off and looked at the license plate, then took a piece of paper out of the side-pocket of his car and wrote down a number. He looked back up to check the number and the car was gone. He gave that license number, 1WL V84, what he wrote down, to the police. The police then traced that license number which was registered to a black Lincoln Navigator and traced it to XXXX Dunstan. XXXX Dunstan is in the same part of town, and it's the home where (name the defendant's father) and his wife (name the defendant's stepmother) live.

(Name the defendant's father) and his wife were out of town. (name the defendant) had driven them to the airport the day before in (name the defendant's stepmother) black Lincoln Navigator. When the police asked (name the defendant) if he had driven the Navigator, he said, "Yes, I drove my father and who's now his stepmother to the airport in the black Lincoln Navigator, and I brought it back, and parked it."

(With a rhetorical question, the defense counsel faces some of the most damning evidence against his client, i.e., the fact that the license number Dr. Beckman wrote down did indeed match a black Lincoln Navigator licensed nearby. Counsel blunts the force of that damning undisputable evidence by countering  with the fact that 18 Lincoln Navigators with tags having very similar digits were sold by the same local dealership.)  "How," (the defender states the given name of the prosecutor) says, "could that be?" How could the doctor have just written down a license number and have it come back to a black Lincoln Navigator in that neighborhood? That question is a question that should be on your mind and the answer, which you will see in evidence, is that (Notice the repetition.) 18, 18 Lincoln Navigators were sold by Texan Lincoln Mercury with almost the identical license plate, one or two digits difference.  The evidence will show that seven Lincoln Navigators have almost the identical license number and those seven are dark Lincoln Navigators.

(Defense counsel displays a visual of several different dark Lincoln Navigators with plates similar to those of the Navigator belonging to the defendant's father.) The evidence will show -- I know you can't read the license number (indicating a photo that is being displayed) -- it's different on each car. There's a black Lincoln Navigator with license number 1WL V72; a dark green -- that's dark green -- remember Dr. Beckman said it was a dark Lincoln Navigator -- with license number 1WL V94. There's a black one with 1WL V84. that belongs to (name the defendant's stepmother). Her name was (state the name of the defendant's stepmother before her marriage to the defendant's father) at the time. She and (name the defendant's father) are now man and wife. There is a black Lincoln Navigator sold by Texan Lincoln Mercury, 1WL V89; a black Lincoln Navigator sold by Texan, 1WL V82; a dark blue Lincoln Navigator, 1WL V95; and a black Lincoln Navigator 1WL V98.

(Defense counsel attacks the memory of the prosecution's star witness with a series of three rhetorical questions which he proceeds to answer with facts.) Was Dr. Beckman mistaken? What period of time, how much time did he have to see the license number? How much time did he have to get it right? Dr. Beckman himself testifies under oath that he had less than a one and a half seconds to see -- excuse me -- to see the killer when he first saw the killer. Dr. Beckman said he had less than one and a half seconds to see the killer as the car drove past him, one and half seconds. And Dr. Beckman, when shown soon after his observations, within hours of his observations in the parking lot, was shown a photographic spread with six people in it, one of whom was (name the defendant), a Polaroid picture taken of (name the defendant), Dr. Beckman says, "I wouldn't say for sure." He tells the police officer, " I couldn't say for sure. " And the police officer presses him and says, "Well, give us a percentage. Give us from one to ten. Can you say one of the persons? "And then he says, "Well, No. 3 looks familiar." "How sure are you on a scale of one to ten?" And he says, "Eight."

(Defense counsel underscores the factual unfairness of the video line-up.) And the evidence will show that --  We don't know exactly how much later. The police didn't make a note of it. About a week is all -- is best the police can say -- the police show Dr. Beckman the video line-up. The video line-up has none of the same people in it as the photographic spread except for (name the defendant). I think that the evidence will suggest to you that in itself was unfairly suggestive. Dr. Beckman was first shown a photographic spread with six people in it, one of whom was (name the defendant), and he said he wouldn't say for sure, and then he's shown by the police a video line-up that has none of the same people except (name the defendant) in it. And, lo and behold, he picks out (name the defendant), but he still says, "I can't say for sure. On a scale of one to ten, I'm an eight, and he looks familiar."

And when Dr. Beckman comes into this courtroom and sees (name the defendant) sitting at counsel table in an orange jumpsuit, the only person in the courtroom in an orange jumpsuit, he still says, "He looks familiar, but I can't be sure. Eighty to ninety percent maybe."

(The defense counsel attempts to relate what his identification testimony expert will say about cases where the defendant was convicted on eyewitness identification and subsequently exonerated by DNA testing, but is cut off by the prosecutor objecting on the grounds of relevance and the argumentative form of the statement.) The expert will tell you that in some 40 cases where DNA later proved that convicted person was innocent --

THE PROSECUTOR: Judge, I object to testimony about what happened in other cases. Not relevant in this case.
THE COURT: That's sustained.

DEFENSE COUNSEL: (Notice that defense counsel seems unfazed by the sustaining of the objection and smoothly continues his opening on the same point with more emphasis on the facts that the eyewitness testimony expert will provide.) Well, the experts will tell you they've done research, and they'll tell you what the basis of the research is, and it's not just some person in an ivory tower that sits up there and says, "Well, identification testimony is not good." It's based on empirical data, based on proof. What we have how that we didn't have 10, 15, 20 years ago is DNA, and DNA is certain, and DNA has proved in the past  -- [Note: As a matter of fact the defense did later prove exactly what the defender is trying to say here and the court is barring; however, the problem may be that the trial court doesn't have sufficient assurance that such will be the admissible proof from the expert. Perhaps this would be a good place for the oft over utilized phrases : "The evidence will show," or "You will learn from the evidence," or "The evidence will teach us, " or "We will prove to you." Notice also from the italics that both the prosecutor and defender are very fond of saying "the witness will tell you" and "the witness will testify." Both of these openings focus somewhat on what will happen at trial - forward looking- rather than focusing on the story of what happened in the past. If the story rather than the trial is the important thing, couldn't both openings be improved by more focus on the story and less on the trial? What do you think? ]

THE PROECUTOR: Objection.  This is arguing.
THE COURT: That's sustained.

DEFENSE COUNSEL: What you will see is that there are a number of things that you would expect to find in the wig store..

THE PROSECUTOR: Objection. This is arguing.
THE COURT: It's overruled.

DEFENSE COUNSEL: (Defense counsel speaks of the past in the present tense.) Based on the evidence that you have, based on the testimony, based on what the police find after this terrible, brutal bloody killing, remember, three people are stabbed, one person dies by bleeding to death, one person almost bleeds to death with 14 stab wounds, what the investigator from the police crime scene investigation unit will say from the witness stand was a very bloody crime scene. (Defense counsel makes the point that no blood DNA, hair, fingerprint, palmprint, or shoeprint evidence was found linking the defendant to the bloody scene.) What you would expect to find in the wig shop would be the killer's fingerprints. (Name the defendant) fingerprints were not found in the wig store. There are unknown fingerprints. Unknown fingerprints .Unknown palmprints.

(Defense counsel focuses on what the evidence will not show in part because of what the prosecutor's investigators did not do.) (Name the defendant) fingers and palms had been compared to these unknown prints and it's not him. You would expect to find the killer's hair. The evidence -- the witnesses will tell you that we all shed body hair, constantly, some more than others, and that particularly where the killer struggles with his victims, you would expect to find the killer's hair. (Name the defendant) hair was not in the wig shop. There are unknown hairs that were found around the crime scene. (Name the defendant) DNA has been tested. His DNA is not in the wig shop.  There are unknown shoeprints in the blood that were collected by the police. (Name the defendant) shoes were compared to the shoeprints in the blood that  were collected by the police. (Name the defendant) shoes were compared to the shoeprints in the wig shop --

THE PROSECUTOR: I object. That's a misstatement of what the evidence will be. They were not compared.

DEFENSE COUNSEL: Well, Judge,  they -- okay. The evidence will be that they are obviously not the same pattern of the unknown shoeprints in blood.  The evidence will be from experts that frequently when there is a vicious stabbing with a sharp knife, frequently the killer is cut also, and frequently you would expect to find the killer's blood at the bloody scene. (Name the defendant) blood was not found. (Note the rhetorical question and answer.) Is there unknown blood? We don't know because all of the blood was not tested.

(The defense admits that the evidence on whether this was a botched robbery is not clear, but notes that there is some evidence that robbery could have been the motive.) The evidence will show that while the killer was planning either a robbery or a murder, and we don't know, and I say that because the evidence will show that in order to get into the cash register, which held a sizeable amount of money, you have to have two keys. One key was in the cash register. The evidence will also show that there is blood around the cash register and the door to the cash register, and yet Roberta Ingrando was disabled. Roland Ingrando says he didn't go behind the cash register. The blood has been  -- some of the blood has been tested on the cash register, and it's Roberta's blood. The evidence will be that frequently the killer will get his victim's blood on him.

THE PROSECUTOR:  I object to this. This is not what the evidence is going to show. This is just argument.
THE COURT: It's sustained.
DEFENSE COUNSEL: Well, the evidence will be from experts that frequently a killer will get almost --
THE PROSECUTOR: Judge, I object to what happens frequently. That's not what the evidence is going to show happened in this case.
THE COURT:  It's sustained.

DEFENSE COUNSEL: (The defense suggests that the killer cased the wig shop at a time when the accused was lining up a sandlot football game.) The evidence will show that while the killer was planning a robbery or murder, (name the defendant) was planning a football game with his buddies. The evidence is going to show that while the killer was probably casing the wig shop -- Roberta Ingrando is going to say that the killer came in earlier in the day.  Another witness in the shopping center is going to say that she saw who she believes is the killer come into her store and case it earlier in the day. The evidence is going to be that while the killer was casing the wig shop, (name the defendant) was again on the telephone with his buddies and running errands. And the evidence is going to be while the killer was escaping, (name the defendant) was again on the phone with some friends and driving to play football with his buddies.

(The defender concedes harmful facts that are beyond dispute, i.e., that the accused was not seen by anyone during a small window of time during which the murder took place, but immediately blunts the force of the concession by discussing favorable evidence of a phone call made by the defendant during the crucial time interval.) I agree with (name the prosecutor) (Note that the defender calls the prosecutor by her full name.) that from 3:50 until about 4:25 no person is going to say that they talked to (name the defendant), but what the evidence will show was that at 3:50 (name the defendant) talked to (name a witness), made the final plans for the football game and by 4:25 or thereabouts, (name the defendant) was at the football field dressed out to play football.

(Defense counsel stresses the temporal impossibility of the prosecution's theory of the case.) And so the State's theory is that (name the defendant) in that period of time calmly  went to the wig shop, killed one person, stabbed two others, made his getaway, changed clothes, cleaned up the car, got in his football clothes, and drove back out to the football game. We believe the evidence is going to show you that's just not possible.

Now,  there's what I call secondary evidence that (name the prosecutor by surname) (Note: A different label is used for the prosecutor.) has talked about.  The evidence is going to show that (name the defendant) and his buddies talked trash. (Defense counsel begins to personalize and humanize his client with background information about the accused and his family.) In November of (two years ago), (name the defendant) was 19 years old. He was a graduate of Bellaire high school, played football. He wasn't a very good football player. He had some good friends. He wanted to join the Air Force. His eyes weren't good enough. (Notice how the defender establishes the accused's personal and family connection to the State of Israel long before the offense in question.) He wanted to join the Israeli Army because, the evidence will show, he's an Israeli citizen.

His father, (name the defendant's father) was born in Israel. His grandparents are refugees from Germany, and they lived in Israel. And for six years of his life between roughly the age of 5 and 11, (name the defendant) was raised in Tel Aviv --

THE COURT: Excuse me, (naming the defender). Sir (speaking to a spectator), would you take your drink and step back outside the courtroom. (Here the trial judge rudely interrupts the defender in the middle of his opening statement to tell a spectator who entered the courtroom with a soft drink to leave. What the trial judge's motives are we cannot know. Clearly it shows the jury that the court was occupied with housekeeping issue at this crucial point of the defense case. Notice how the defense counsel handles the interruption never missing a note, picking up exactly where he left off before being interrupted because of a "soft drink" issue.)

DEFENSE COUNSEL: (The defender continues to humanize the client.) He has friends there, went to school there, and he's an Israeli citizen. He has an Israeli passport. He's required to renew his passport once every several years. (Here the defender joins issue with the prosecution regarding  the Israeli connection.) So the State (Note: The label is "State" rather than "prosecution." I prefer "prosecution.") says that the renewal of his passport is evidence of guilt. We say that it's not. The State takes a position that letters he wrote to a former friend who was then in the Israeli Army in January and March (three years ago) show a propensity to violence.

(Defense counsel explains the violent letters written by the accused four years earlier.)  The evidence will show that in January, February, and March 1996, there were terrorist bombings that were occurring in Tel Aviv, and on March, I believe, the 2nd or 3rd of 1996, a bombing occurred in the neighborhood in which (name the defendant) grew up. One of his friends was almost killed in the bombing. And one of the letters that the State put so much strength in, the evidence will show, was written by (name the defendant) to his friend in the Israeli Army talking about how he, (name the defendant), wanted to come and join the Army with him and kill the enemies of Israel.

(Again defense counsel concedes facts beyond dispute, e.g., the accused's written racial slurs against persons of Arabic descent.) The evidence will show that (name the defendant) used some epithets, some racial epithets against persons of Arabic origin, and the words are there. We can't do anything about them.


(Defense counsel establishes that, after playing football from 4:25 p.m. to about 5:30 p.m., the accused returned to his father's home where there were a large number of police cars .) Now, let me tell you what the evidence is going to show about what happened later on the day in question. After playing football from about 4:25 to about 5:30 with his buddies next to his apartment where he lived -- he had an apartment at the time. (Notice the background information.) He was enrolled at U. of H. He was a student. He was a pledge of Pi Kappa Alpha. He, after playing football, drove his white pickup truck home to his father's house. He was house-sitting for his father. His father and (name the stepmother), his stepmother, have several big dogs, and he was staying there while they were in California. (Name the defendant) grandparents were with (name the defendant) father. His grandparents were visiting from Israel for the holidays.

So, (name the defendant) drove back to his father's house in his white pickup truck, and, as he drove up, he noticed that there were five or six or seven blue police cars surrounding his house because what happened was when the police got the license number given to them from Dr. Beckman and got the address on Dunstan, they surrounded the house on Dunstan. And there was the black Navigator where (name the defendant) had parked it the night before. And as (name the defendant) drove up to his father's house, he could see the police officers standing all around.

(There was no flight by the defendant when he saw the police at his home.) Now, did he turn and run? No. He got out of his truck. Couldn't  part it in front of his house, walked down the sidewalk and walked up to the police officers and asked what was going on, and they immediately arrested him and handcuffed him and started questioning him. They scared him. One of the officers will tell you he was hyperventilating. He was obviously frightened. He was dressed in a white T-shirt. It was sweaty. He was dressed in some gray athletic shorts. He had on some white tennis shoes or athletic shoes and white socks. He told them he'd just been playing football, and he gave them names of seven or eight kids that he'd been playing football with, and the police called and confirmed for the past hour he'd been playing football.

They took him back to the Navigator. They made him feel the Navigator to see if it was warm  They asked him if he'd driven the Navigator that day. (Defense counsel turns to a first person recreation of the conversation between the police and the accused.) He said, "No. I have not driven the Navigator"  "Did you drive it? When did you drive it?" "I drove it yesterday when I took my parents to the airport." They said,"Well, in that case, can we search the Navigator? Can we search the house? Can we search the truck you drove up in? Can we search your apartment?" He says, "Sure."

And so they take him handcuffed inside, unhandcuffed him and allow him  to sign the consents to search his car, that is, his pickup truck, the home on Dunstan, his father's home, his apartment right next to the football field. They don't get a Consent to Search the Navigator. They just seize the Navigator and then get a search warrant for it two days later, but he said they could search it. (Defense counsel poses a hypothetical question and answers it.) And what did they find? Nothing. Zip.

(Here's another rhetorical question and answer in which counsel draws a logical inference. This one draws a valid objection as "argument.") Now, what would you expect to find in the getaway car? Well, you'd expect to find Roland's blood.

DEFENSE COUNSEL: Judge, I object. He's arguing.
THE COURT: Sustained.

(Note that defense doesn't  waver or ask to respond to the objection. Counsel simply continues by stating a fact.) None was found. Roberta's blood was not found. Manuela -- and I've called her her "Manny." That's what everybody called her at the wig shop, according to the witnesses. (Notice how defense counsel counterbalances concession of a harmful fact, i.e., finding of fibers in the Navigator,  with emphasis on a favorable fact, i.e., no blood was found anywhere in the Navigator.).  Her blood was not found. There were some fibers found. We're going to talk about that in a moment. The important part is that the fibers that were found had no blood on them. There was no blood on the driver's seat. There was no blood on the steering wheel. There was no blood on the floor mat. There was no blood on the gearshift lever. There was no blood on the accelerator pedal. (Notice that defense counsel mentions the negative evidence in one sentence, i.e., "There were some fibers found." and stretches the positive evidence into a series of five sentences beginning with "There was no blood..." Do you know what figure of speech this is?)

(Defense counsel harkens back to the fact that there were bloody footprints at the scene of the crime and linking the unstated conclusion that one would expect there to be blood transfers in the the killer's car then continues with the "no blood in the Navigator" litany.) Remember now, there are unknown shoeprints in the blood at the scene. There was no blood on the brake pedal. There was no blood on the keys, and there was no blood on the door handle. (The defender stresses that the police found that the Navigator had not been wiped clean.) And the police specialist who searched the car will tell you the car was clean, but it was not cleaned. That is, "Yes, it was clean, but I saw no suggestion that it had been recently cleaned."

So the police take (name the defendant) into custody. One police officer  questions him thoroughly. He answers every question. He gives a timeline --

THE PROSECUTOR: Judge, I object to defense counsel talking about what the defendant said while in custody, unless it's going to be shown by the evidence.
THE COURET: Sustained.

DEFENSE COUNSEL:I believe it will be shown by the evidence. (Notice how, in the face of a sustained objection, the defense counsel segues from the substance of what the accused said to the police to the fact that the accused answered all questions posed by the police at the family home and the police confirmed everything the defendant told them.)  What the evidence will show, more importantly, is that (name the defendant) answered every question to the police there in the house. The police officer took notes, and he took notes of what (name the defendant) told him. And the police officer that day and in ensuing days confirmed everything that (name the defendant) told him about where he was, what he had done, and who he had talked to.

(Defense counsel begins a key timeline of the accused's activities prior to, during, and after the murder at the wig shop.) And the timeline, as you will see, even with an embarrassing fact to it, will be confirmed in the evidence. The timeline that the evidence will show is that (name the defendant) left his father's house at about noon that day. He left in his white pickup truck. The Navigator was in back, as it always is. He went --

THE PROSECUTOR: (The prosecutor challenges the defender on overstating his case.) Judge, I object to defense counsel arguing about things that aren't going to be coming out through the evidence.
DEFENSE COUNSEL: This will be coming in the evidence.
THE PROSECUTOR: Through who, Judge?
THE COURT: Can I see counsel up here?
(At the Bench, on the record.)
THE COURT: Do you have a witness that you're anticipating will put on that evidence?
DEFENSE COUNSEL: Yes, ma'am.
THECOURT: Other than the response from the officer?
DEFENSE COUNSEL: Yes ma'am.
THE PROSECUTOR: Who can testify?
DEFENSE COUNSEL: (The defender assures the court that there will be evidence to back up this portion of his opening statement.)  I don't have to tell the prosecutor what my case is. There will be independent evidence about the witnesses, about the evidence I'm about to talk about.
THE COURT: Okay. As long as there's independent evidence and you're not anticipating hearsay testimony coming in through the officers, then I'll rely on your proffer that that's going to be the case.
(Conclusion at the bench.)

DEFENSE COUNSEL: (Note that defense counsel , without batting an eye, resumes his story right where he stopped when the prosecutor objected.) (Name the defendant) left his house about noon -- excuse me -- his father's house in his white pickup truck about noon that day. His father's maid was there and knows what time (name the defendant) got up, knows what time his father called and knows what time (name the defendant) left that day -- that morning. Around noon. He went from there to a bank where both he and his  brother have bank accounts and at his brother's request drew out his money for his brother.He went to this mother's house and met and had lunch with his mother and brother and a couple of buddies, and they sat around there for a while.

He left there at 2:00, 2:30 in the afternoon. He went several places. He went to his apartment to pick up his laundry and the police, sure enough, found part of his laundry at his father's house where he'd taken it to be washed by his father's maid. He went to the West University pool and workout place where he used to --

THE PROSECUTOR: Judge, I object to all this. It's not going to be shown through the evidence.
DEFENSE COUNSEL: Yes it is.
THE COURT: May I see the attorneys up here again, please?
(At the Bench, on the record.)
THE COURT: Again, I'm going to ask, are you going to have a witness who is going to identify him being there?
DEFENSE COUNSEL: Yes, ma'am..
THE PROSECUTOR: At the gym?
DEFENSE COUNSEL: Yes..
THE COURT: I'll allow it.
THE PROSECUTOR: I'm going to object to him talking so loudly at this point.
DEFENSE COUNSEL: I apologize.
THE COURT: I understand.
(Conclusion at the bench.)
THE COURT: You many continue.

DEFENSE COUNSEL: He went to the West U. pool to work out where he had worked before, and he saw there Andy Turner. Two days later the police call Andy Turner and said, "Did (name the defendant) show up here at the West U pool the afternoon of the 27th? He said,"Yeah,he was here." The police confirmed what (name the defendant) told them about that, and Andy Turner will testify he saw him there.

He went from there to a video store and rented a video. It was an adult video. That's why I say it's a little embarrassing, and the folks from the video store will tell you about that. And he took it home. And for part of the time between 3:50 and 4:25, he watched the video, and his father found the video, and it will be in evidence. The maid saw him there during part of the time. But the maid works in -- for part of the time back by the maid's work room. The maid's work room is by the back door, which is right by the carport where the Navigator is parked.

The police asked the maid when they came up to the house and first surrounded the house, "Who's in the house?" "Nobody." "Who has used the Navigator?" "Nobody." "Have you seen the Navigator moved today?" "No." She was in a position to see it if it had happened.

While he's at the house sometime after about 3:15, he gets the first call from Wes Mabrey saying, "There is going to be a football game later this afternoon. Call some people and get in touch with them." We don't know exactly what time that call came in. Wes Mabrey doesn't know exactly what time the call came in.

Next, he gets a call from an across-the-street neighbor. We do know exactly the time that call came in. It was 3:37 p.m. And the neighbor called to say, "The dogs are out. Would you please put them up? We're going to have a party. Would you move your truck. It's sitting out in front of your house, and we have to have people here and so forth." And that lady called on her cell phone, and we have the cell phone records. That was at 3:37. That lady then leaves and goes shopping. And she went shopping nearby, and she got a receipt, and it's time-stamped. You'll see all that.

Next, (name the defendant) calls to get Nathan Chasen, his buddy, to play football, and he talks to Billie Chasen, Nathan's mother. Nathan's not there.

Next, (name the defendant) calls for his brother. Brother's not there.

Next, Wes Mabrey calls back and this call we have a better idea when it is. It happened when Wes and his buddy, Jeff Seton, were watching the program Jeopardy, and they distinctly recall that the phone call was during Final Jeopardy, whatever that means. If you've seen the program Jeopardy, it might mean something to you. But they say that happened during Final Jeopardy, which is in the final ten minutes of the program, after 3:50. And Wes talks to (name the defendant), and they change the time of the football game to 4:30. Shortly after that, (name the defendant) leaves.

Next, (name the defendant) calls Nathan Chasen's home again and talks to Nathan's father, Marvin Chasen, and says, "The time has changed. Tell Nathan."

Next, (name the defendant) calls his brother again, Danny, at their home -- excuse me -- at Danny and his mother's home. Gets the Call Note, leaves a message and then beeps Danny on Danny's beeper. Danny gets the beep, returns the call, and gets the message.

(Name the defendant) then shows up at the football game and the guys that are there don't know exactly what time it was, but it's probably about, they say 4:15 to 4:30.

Now, the State will say that (name the defendant) is guilty because he fled. (Name the defendant) was young, he was scared, and he took his father's advice. That is what the evidence will show.

THE PROSECUTOR:I object to this. This is not what the evidence will show.
THE COURT: That's sustained.

DEFENSE COUNSEL: Here's what the evidence will show. (Name the defendant) was released by the police. He was arrested that day, taken to the police station. We've gone through that. He was in a line-up, photo was in a photo spread, photographed, questioned for four or five times, signed a written statement setting all of this out, and then the police released him.

His mother, (name the defendant's mother), and her friend, Ed McNeil, they're both lawyers, learned that (name the defendant) had been arrested. And, of course, as a mother would do, she went straight to the police station. She asked to see (name the defendant). The police said, "Don't worry. He's a nice kid. We're going to let him go." And they did. They let him go into her custody. But she'll tell you and (name the defendant's father) will tell you that (name the defendant) was traumatized. He was scared. He'd been put through the mill. (Name the defendant) grandparents were in town from Israel. They're elderly. They were already planning to return to Israel.

(The defendant, with no charges pending, goes to Israel with his grandparents and returns.) And so, (name the defendant's father) sent (name the defendant) to Israel with his grandparents. He left on December the 2nd, some five days after his arrest. At the time that he left, there were no charges. At the time that he left, there was no restriction on where he could go. And he stayed in Israel for a little over a month. And then he returned to the United States.

(The defendant, with no charges pending, goes to Bangkok, Thailand, with full intentions of returning.) And when he returned, (name the defendant's father) asked for advice, asked whether there were any charges against him, talked to the detective who said there were no charges and that there were no restrictions on his travel, and (name the defendant's father) approved (name the defendant) leaving again, and this time he went to Bangkok. And at the time he left, there were no charges against him. There was no restriction on his travel, and he had full intentions of returning.

(Defense counsel says that when the defendant learned he was charged he agreed to return.) The State says that that's evidence of guilt, and the State says that he was told that he could only stay in Thailand 30 days. (Defense counsel concedes that the accused did overstay his visa in Bangkok but counters this with a claim that the evidence will show this is common and states that he knows that, when the accused learned he had been charged with the murder, he agreed to return to face the charge.) I think the evidence will show that (name the defendant) did overstay his visa, and I think the evidence will show that's very common and I think -- I know the evidence will show that when (name the defendant) learned that he had been charged, and he was only charged some three months after the crime, he agreed to return immediately.

(To brunt the force of the prosecutor's claim of flight to avoid prosecution, the defense counsel explains the factual details of the accused's attempt to return to face the charge.) His father located him though an ad placed in the International Herald Tribune, and the evidence will show that that is an English language newspaper that's printed all over and circulated all over the world and that (name the defendant) answered the ad that his father put in the newspaper. When he answered it, he agreed to come home. (Name the defendant) father flew to Bangkok and made arrangements for him to come home, gave him money for the plane tickets, arranged the plane travel.

We -- (name the defendant's father) - notified the District Attorney's Office that he was on his way back. (Name the defendant's father) even prepared a press release to be distributed, given the fact that there had been such terrible publicity. (Name the defendant's father) arranged his travel from Bangkok to Frankfurt to Mexico City to Houston. (Name the defendant's father) was to meet him in Mexico City. When he got to Frankfurt on his way back here to surrender, he walked out of the transit lounge to get a hamburger, and when he tried to get back in the transit lounge to leave --

THE PROSECUTOR: Judge, I object to that as a misstatement of the testimony.
THE COURT: Sustained.

DEFENSE COUSEL: The evidence will be that he had reservations and tickets to Houston, Texas, and that he -- well let's see. The transit lounge is involved, and that's where he was arrested, either walking out or walking in.

THE PROSECUTOR: I object to that. The evidence will be through Officer Raupach, and nobody else, and that's not what he said. (Query: Did the prosecutor just comment on the defendant's right not to testify?)
THE COURT: That's sustained.
DEFENSE COUNSEL: Well, Officer Raupach --
THE COURT: That's sustained.
DEFENSE COUNSEL: Officer Raupach testified he didn't know --
THE COURT: I sustained the objection, counsel.

DEFENSE COUNSEL: There's a German officer who has a little bit of difficulty with English who will testify, and we'll see what he says.

At any rate, the evidence will show that (name the defendant) was on his way back here to face the charges. Now, why these letters? Why this travel? What evidence other than this is there that (name the defendant) beyond a reasonable doubt committed this awful crime? (Note that the prosecutor reacts quickly to stop what she rightly perceives as a defense argument during the opening statement.) Well, I say to you --

THE PROSECUTOR: I object to what he says. It's irrelevant . It's argument.
THE COURT: Sustained.
DEFENSE COUNSEL: May I have the same opportunity, Your Honor, as (name the prosecutor by surname) of closing my opening statement?
THE COURT: You may state what you anticipate the evidence will show.

DEFENSE COUNSEL: We anticipate the evidence will show that this case is full of reasonable doubt and that the reason for all this other stuff is to make (name the defendant) look bad in your eyes.

(Name the prosecutor) said in the jury selection, "We don't need any help." We don't need any help either. We want a fair trial. That's all we want - a fair trial on the evidence. (Defense counsel attempts to forewarn and blunt the influence of the prosecution's bloody pictures.) And you're going to see probably in some of the early testimony some bloody pictures, and they're going to be gruesome, and they're going to be awful. The bloody pictures prove that Roberta Ingrando, indeed was brutally stabbed. And the bloody pictures prove, indeed, that Manuela Silverio was brutally stabbed and bled to death. But the bloody pictures don't prove who did it. (Defense counsel begins to argue as he concludes; again the prosecutor reacts with a successful objection to argument.) So, ask yourselves when you see the bloody pictures: "Where is the blood on the Navigator. Where is the blood on (name the defendant)?"

THE PROSECUTOR: Objection, Judge. This is arguing.
THE COURT: That's sustained. You need to wind it up, counsel.

DEFENSE COUNSEL: (Defense counsel concludes with the theme that there is paucity of biological and scientific evidence linking the Navigator or the accused to the crime.) There will be no blood on (name the defendant). There will be no DNA of (name the defendant). There will be no hairs, fingerprints, clothes with blood on them. (Name the defendant) is not guilty. Thank you.

* Note: The prosecution is not typically allowed, over objection, in opening statement to speculate and comment upon evidence it anticipates the defense may introduce. See the discussion of objections on the Opening Statement page. This is viewed as improperly suggesting that the defense has a burden of producing any evidence and, in some circumstances may also infringe upon the accused's privilege against self-incrimination. Why wouldn't the defense object to the prosecutor telling the jury about the defensive proof of where the defendant was shortly after the crime? Because it is favorable evidence, and the prosecutor is apparently saying she is not going to dispute it. Wouldn't it also look strange in the eyes of the jury for the defender to object to opening statements by the the prosecution that concede the weaknesses in its case? Of course, the prosecutor is doing what a talented prosecutor should do, i.e., face the weakness(es) in your case from the get-go.
     

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OPENING STATEMENTS

The Wig Shop Murder

Issue:  EYEWITNESS TESTIMONY
copyright © Ray Moses 2005
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