86spike said:
And doesn't that defense approach mean they likely need to put AH and/or the other dudes on the witness stand? Given the fact that none of these guys seem to be Rhodes Scholars I would imagine opening them up to a cross examination by the DA would be a huge risk. All the DA might need to accomplish in that cross would be to make these guys seem flustered or unclear on details in order to punch holes in their testimony.
Sort of. The state has to prove the case, so basically anything that they
don't address the defense can use. But there are limits to what a defense attorney can do (both ethically and practically). A good example dealing with a case based on circumstantial evidence is the cookie jar scenario.
So - there's a cookie jar. You put oreo cookies in the jar. You leave it alone and go outside to get the mail. Your 6 year old is the only person in the house. You come back in 10 min later and the kid's covered in cookie crumbs and the cookie jar is empty.
If I'm defending I can't
effectively argue that aliens ate the cookies. If there was any sort of real defense, I'd probably have to put the kid on to explain it. Say - that the neighbor crept in through the window and did it, if the kid himself came up with the idea.
Ethically, as a defense attorney, I can't just make "positive facts" up or "suggest" defenses that the defendant can testify to - the defendant has to tell me what happened and then I can go after whatever that situation is. I can't call the defendant as a witness if I know he'll be lying about something. However, ethically, I can and must pursue any
possibilities that are not explained by the State's theory of what happened. There's a big difference between the two (see next paragraph). The trick is not to pursue stupid possibilities and exhaust the patience of the jury.
But if we change the cookie scenario a bit - say, you're out of the house for 3 hours. Other kids are inside playing. There are no cookie crumbs found on anyone. The dog seems very smug and has gas. Now under this new scenario, if I'm defending, I
can effectively argue that maybe it was someone other than your kid, without ever putting the kid on the stand. The basic facts give rise to a reasonable doubt as to whether the kid was the actual person who took the cookies. I don't have to come up with a "theory" of defense because the state can't reasonably prove that one kid out of many was the wrong doer. And I can talk all day about how the jury didn't hear from the other kids, and how the state can't explain the lack of cookie crumbs, and how no one can rule out the dog, and ask just what you were doing leaving a bunch of six year olds alone in a house for three hours - and if that has any bearing on your testimony. The kid does not have to take the stand for that - those are basic problems within the facts of the state's case.
***
So here, AH's attorney can punch whatever holes he wants in the physical evidence, and the motivations of people testifying. If one of those witnesses says something the defense can use (like Odin feared a random third person would kill him, or the now-dead co-defendant planned to kill when AH simply wanted Odin scared) they can build on the "what if" scenarios.
However, there's a point where a case can be so "tight" (first cookie scenario) that AH pretty much has to take the stand to fill in the gaps in the narrative. "There was another shooter" is one of those defenses where AH would have to testify. "I was blackmailed" is another defense where he'd have to testify.
He'll probably be shredded on the stand if he does. Although you'd be surprised at how bad most prosecutors are on cross. They don't get to use it much.
In terms of the other defendants, if there's a deal, the state will call them as friendly witnesses, and the defense will cross them.