Attorney Allain Marain

Criminal Defense Lawyers - Trial Transcript 2 (Part 2)

Summation 31
  1. ... move on and Bill Bradley says, excuse me, I'd like a second pat and the waiter says, well, each person gets just one pat and Bill Bradley says, well, I understand that, but I would like a second pat, and the waiter says I can only give one pat to each person, and Bill Bradley says maybe you don't know who I am. I'm Bill Bradley former professional basketball player, All-American, Rhodes Scholar, United States Senator. And the waiter says, well, maybe you don't know who I am, and Bill Bradley says, well, a matter of fact I don't. Who are you? And the waiter says I'm the person that's in charge of the butter. Well, Pamela Williams gets a summons. Same kind of document as you get when you get a speeding ticket. The only difference is when you get a speeding ticket you have to come to court to take care of it, and as far as anyone in this case is able to remember Pamela Williams never came to court. Patrolman Williams tells you that he enforces the law. When he sees a crime being committed he does his job. But Patrolman Williams did not do his job with regard to Pamela -- excuse me -- Patrolman Ewing did not do his job with regard to Pamela Williams. He testifies that he saw Pamela Williams in possession of heroin. He saw her purchase it. He saw ...
Summation 32
  1. ... her carry it to the car. He saw her snort it. And he charges her with loitering and has no knowledge of what happened to even that charge. The point is that a police officer who can make a charge disappear when a crime has been committed, can create a charge when NO crime has been committed. And that, members of the jury, is what happened here. Judge DeVesa has permitted defense exhibit D-2 to be marked into evidence. D-2 is the arrest report with the typed name of Detective Bill Ewing at the bottom for Pamela Williams, and what is the offense that she is charged with? Loitering. Remember Detective Ewing told you that police reports must have all significant events and that it is important that police reports be accurate? Here is an arrest report that has his name on it Detective Bill Ewing, and Detective Bill Ewing, Patrolman Ewing can't tell from this arrest report whether it's even he that made that arrest. You remember he agreed with my characterization of share the wealth. Share the wealth. The wealth being the arrests. Distribute the arrests amongst the team so everyone gets equal credit for the number of arrests that are made. What happened to accuracy? Putting whatever they want on these ...
Summation 33
  1. ... reports. Members of the jury, what is this case all about? Credibility. Ewing says that he can charge Pamela Williams only with loitering because the evidence that he would have needed for a more serious charge was gone. Snorted away. That is hogwash. Because if you accept that then the most that you can charge Betty Riles with is loitering. In point of fact the police can manipulate the charges any way they want to and they do. Betty Riles had already disposed of all of her heroin if you believe what Patrolman Ewing had to say. But that did not stop the police from charging her with possession of heroin, and that did not stop Detective Ewing from charging Betty Riles with possession with intent to distribute. And there is even more evidence that ex-Detective Ewing could have charged Pamela Williams with possession of heroin because detective Craddic did charge Eric Gregory with possession of heroin even though all of Eric Gregory's heroin had fallen to the ground. We look at State's exhibit three for identification. This is the Request for Examination of Evidence that went to the New Jersey State Police lab. You're talking about request to examine for C. D. S., controlled dangerous substance content, and it lists ...
Summation 34
  1. ... three packets of heroin stamped Bloody Money. Who are the suspects listed on S-3? S-1, meaning suspect one, Tanya Burgess. S-2, Eric Gregory. S-3, Betty Riles. Detective Bobadilla moves in to make the arrest. He makes the arrest. He makes the arrest of Betty Riles based on information provided by then Detective Ewing. Detective Bobadilla relied on information provided by Detective Ewing and, in fact, the foundation for this entire house of cards is the report provided by Detective Ewing who is not even a detective any more. Now, as Judge DeVesa told you at the beginning, you -- the evidence that comes into this Court is a couple of forms. You can have direct evidence. You can have circumstantial evidence. Direct evidence is evidence which if believed directly proves a fact. Circumstantial evidence is evidence which if believed proves a fact from which a different fact may be inferred. Judge DeVesa told you that you can find, and he'll tell you again, you can find the defendant guilty from direct evidence, from circumstantial evidence, from a combination of direct and circumstantial evidence. You can find a person guilty from circumstantial evidence alone, but you can ...
Summation 35
  1. ... find a person not guilty on the basis of circumstantial evidence, and there is large circumstantial evidence in this case which, in fact, points affirmatively to innocence. For example, Detective Ewing told you that Tanya Burgess made a couple of trips to the car. After one sale you'll recall he said Tanya Burgess comes and gives Betty Riles cash. Betty Riles gives Tanya Burgess more heroin, I believe it was then it was four packs. Then later on Tanya Burgess comes to the car, gives Betty Riles money and is looking for change, but Betty Riles is not able to get change, because everyone agreed Betty Riles told you her jeans were on too tight so she gets out of the car to extract the money from her pocket. Well, everyone is in agreement that Betty Riles was in the car the entire time until that second incident, and yet there was never any difficulty whatsoever according to Patrolman Ewing in Betty Riles that first time pocketing the money that Tanya Burgess had brought or getting out -- bless you -- or getting out the four packs of heroin to give to Tanya Burgess. If Betty Riles's jeans were so tight, and I suggest that they were, how could she have gotten out the money from her pocket the first time without getting out of ...
Summation 36
  1. ... the car? How could she have gotten the heroin out of her pocket the first time without anybody ever remarking that there was any difficulty whatsoever caused by the tightness of her jeans? Circumstantial evidence establishing innocence. The police searched the car. Betty Riles told you that the police searched the car. She even told you how Schuster searched the car. And even Patrolman Ewing eventually told you that they searched the car. He denied knowing about it at first but the grand jury transcript refreshed his recollection. Schuster searched the front seat and under the front seat and the back seat, and he pulled the back seat out, and searched the glove box, and he searched in the trunk, and he searched under the hood. He was looking for drugs. He was looking for drug paraphernalia and just like they searched that car he searched that car just like in the French Connection. And what does he find? Nothing. Now, maybe the reason that Paul Schuster found nothing was because Betty had already given away the last of her heroin to Tanya Burgess. That's one possibility. But another possibility is that Paul Schuster found nothing because Betty Riles had nothing to begin with. Fingerprints. I asked Patrolman Ewing about ...
Summation 37
  1. ... fingerprints. Oh, no, I couldn't take prints off this. Well, why not? Well, couldn't take prints because the item was too small. What item are we talking about? Well, we're talking among other things about this piece of what appears to be wax paper. (Indicating.) Is that too small? You can decide that. It was too small or it wasn't too small when you have a chance in the jury room to be looking at State's exhibit two. And then he says, well, we couldn't take fingerprints because too many people handled it. Well, first of all, if too many people had handled it the only person according to Officer Ewing that handled it after Betty Riles handled it was Tanya Burgess. Remember, according to Ewing Burgess gets the four from Riles and then Burgess sells one. There's three left. She comes, Burgess comes back to the car. The police move in. Two of them drop and one of them is found on the person of -- of Tanya Burgess. So, they obviously had not been handled up to that point by too many people. At most my given packet was handled at that point by only one other person. And if you're worried about or if the detective is worried about the police that handled it, well, they're detectives. They are presumably trained in preservation of evidence. They ...
Summation 38
  1. ... are presumably trained to not touch things that would contaminate it if they had any intention of taking fingerprints at all. Too many people handled it. Then he says the surface won't hold prints. Well, I did not bring in a fingerprint expert in this case to say the surface will or the surface won't, but you will have those surfaces, those cellophane bags in the jury room with you, and whatever common sense information you have about fingerprints you will be able to decide for yourself that Ewing's excuse was valid, it wouldn't hold prints, or Ewing's excuse was hogwash as I suggest to you that it was. The point is they never even tried. Reasonable doubt, members of the jury, can arise from the evidence itself or from a lack of evidence. Again, what is this case all about? This case is all about credibility. You have Officer Ewing telling you that he's in an abandoned building I believe it was 15 -- what's the street?
  2. A JUROR: Henry Street.
  3. MR. MARAIN: 15 Henry Street on the second floor with binoculars watching everything that's happening. Is that believable? Let's look at the diagram.
  4. THE COURT: While you're doing that, Mr. ...
Summation 39
  1. ... Marain, I don't mean to interrupt in closing argument. Ladies and gentlemen, please do not respond to the attorneys when they are giving their closing arguments. Okay. Go ahead, Mr. Marain.
  2. MR. MARAIN: Here is the diagram, members of the jury. Here's the car. Here's 15 Henry Street and here's the vantage point of Officer Ewing, and you remember that Betty Riles was sitting in the passenger seat and Tanya was at the door and this is the situation from which Ewing is saying he could see these transactions. (Indicating.) He could see on the first visit Tanya giving Betty money. Betty giving Tanya four packets of heroin and guess what? He's on the second floor which is, what, maybe ten feet high, and you have Tanya Burgess standing right here between Ewing and between Betty Riles who is sitting in the car so that I was talking about the man before. The only way that Ewing would be able to see what was happening was if he had x-ray vision and I don't think he claims to be Superman. (Indicating.) Circumstantial evidence. Indictment 98-01-139 returned on -- in January of 1998. And we have the laboratory machine printout, exhibit D-15 in evidence, and we see from this printout that the ...
Summation 40
  1. ... material was tested on February 25, 1998 at 1:06 in the morning. A month after the indictment is returned. Betty Riles was charged with possession of heroin a month before the substance was even analyzed. Lieutenant Dixon. You know, if Lieutenant Dixon testified, claimed that he invented the internet I would almost believe him. But the most expert opinion in the world is limited by the accuracy of the information provided to him. Detective Dixon himself agreed garbage in, garbage out. Detective Dixon told you that there was nothing in and of itself noteworthy about the fact that Betty Riles had a hundred and twenty-four dollars on her person. She told -- he told you that an awful important part of his observations, of his conclusion was based on the observations reported by Patrolman Ewing. With regard to statements of informants, which Lieutenant Dixon considered in this case, he told you that he believes the statements of informants true until those statements are proved untrue, and that is a completely appropriate philosophy for a police officer. That is a completely inappropriate philosophy for a jury. Because your function is the exact opposite. Your function is to begin with the presumption of innocence and to keep that presumption unless and until ...
Summation 41
  1. ... that presumption is overcome beyond a reasonable doubt. We have the hundred and twenty-four dollars. We have the stipulation in this case that Ms. Riles, in fact, received her check the day before, that it was cashed the day before and that -- we have these stipulations from the State. Then we have the letter from Tracey York. "Hi, Betty. I hope you are in the best of health. I know you are surprised to hear from me and I know I'm not your favorite person but I had to write you. Before I go on I want you to know that I am truly sorry for what you are going through behind me or shall I say Tanya. If only I didn't have to get my car fixed that day we wouldn't have had to be there. I often wonder why didn't I go ahead and me and Tanya just do the bags instead of waiting. If we had went ahead and did the dope you wouldn't be in the mess you are in. But I just had to tell her to hold on to them until I talked to the guy about fixing my car. And she just took it upon herself to sell one. As sick as I was after she could -- as sick as I was after she got busted with the dope I could have killed her. I know I'm a drug fiend and I've been doing dope a long time, but I'll be damned if I'll let it make me act as stupid as Tanya. "Anyway, I don't mean to make you relive that ...
Summation 42
  1. ... terrible day, and it's really too late for all those ifs. If I did that, if I did this. I don't know how much it mean to you, but I truly sorry about all you are going through. I feel real bad about it all and I blame myself. That's why I had to write you. I can't deal with my conscience knowing you may lose your freedom behind something that wasn't yours and you had nothing to do with. On top of that you have young children that need you. I pray all the time that you somehow, some way overcome this. I know you are not going to write me back so I'm asking you to please try to find a way to forgive me. You take care and remember to keep the faith in Jesus Cruz. Sincerely, with much sorrow, Tracey York." The prosecutor suggests to you that Tracey York is lying. Tracey York is lying to cover up for Betty Riles. Why? They had a relationship. Well, if they had not had a relationship then it's likely that Tracey York would not have knocked on Betty Riles's door in the first place to get water for his car. If they had not had a relationship he would not have asked him for a ride first to her sister and then to the Foot Locker. The issue is not did they have a relationship. The issue is whether the statements of Tracey York are credible in context. I suggest to you that they are. ...
Summation 43
  1. ... The regrets in the letter are regrets of a person who caused harm to another person that he cared about. Is he lying to get her off? I suggest not. That's your call. Inconsistencies between the statements of Tracey York and the testimony of Betty Riles. Are there any? There are. Betty Riles heard the testimony of -- of Tracey York, and Betty Riles testified and not -- not to simply easily go along with what Tracey York testified to. Excuse me. What the statement of Tracey York was. Betty Riles testified to what she remembered, and much of what Betty testified to is consistent with what's in Tracey York's letter, in Tracey York's statement to Investigator Carla Williams. Not all of it but much of it. And remember too that we're talking here about something that happened over fifteen months ago. Tracey York may also be mistaken about some details. What about the fact that Tracey York drives to New Brunswick and then to the -- to Henry Street even though he's got problems with his car? Is that a problem? Well, we don't really know how bad these problems with his car were. It was a problem that -- that he needed water and by the time he got to Betty Riles's house he needed two gallons of water but the ...
Summation 44
  1. ... water had been put in. We don't know how -- how fast it was leaking out and whether his car was then good for another ten minutes or another half hour or another two hours. There is nothing especially remarkable about that. Now, even if everything that Tracey York was saying in his letter or through Investigator Williams is true Tanya still could have gotten more heroin from Betty Riles and been selling for her. Anything is possible. But possible does not meet the test. Now, another factor in this case. According to Tracey York Tanya Burgess bought two bags for -- for Tracey, and yet we know from this case that there were at least four bags of heroin that Tanya had. Where did the other bags come from? Well, how do we know that Tanya bought just two bags? That may be what Tanya told Tracey York. How do we know that Tanya Burgess had no bags to start with? According to the letter Tanya bought two bags for Tracey, but how many did Tanya buy for herself? How many bags did she buy to sell? Many. Speaking about Patrolman Ewing and I can anticipate the prosecutor saying, gee, I thought the person on trial was supposed to be Betty Riles. Mr. Marain is trying to make this into a trial of Patrolman ...
Summation 45
  1. ... Ewing. Members of the jury, I've said this two or three times already and I will say it again. What this case is all about is deciding credibility. Whose testimony can you rely on? Whose testimony can you not rely on? We know that cops break the law. We know that cops lie. But the only time that cops come into court and admit that they lie is when there's strong evidence against them like video tape. What about all the times that police lie when there is no video tape? What then? Is their testimony to just be accepted as if it were gospel? Is a person to be found guilty on what is essentially the unsupported testimony of ex-Detective Ewing? Another thing to consider in deciding this case is interest in the outcome of the case. Whether a witness has an interest in the outcome of the case. Does Betty Riles have an interest in the outcome of this case? Of course she does. Her freedom is at stake. Her continued ability to stay with her family is at stake. What -- but what about Patrolman Ewing? Does he have an interest? Let's just suppose for a moment that everything happened exactly the way Betty Riles told you that it happened. Then Patrolman Ewing made false police reports. Patrolman Ewing lied to the grand jury. And can Patrolman Ewing come here now and ...
Summation 46
  1. ... tell you that he did all those things? He would lose his job. He would be indicted. He would be tried. Patrolman Lewing -- Ewing has as much or more interest in the outcome of this case as Betty Riles. And I think that that is stated most eloquently by Patrolman Ewing himself because he said I like being a law enforcement officer. Well, credibility. What about Betty Riles's credibility? She's been convicted twice for cocaine. One for possession, one for possession with intent to distribute on or near school property. What does that say about her credibility? Members of the jury, you are allowed to consider that as it relates to her credibility, and His Honor will tell you that is the only purpose for which you may consider that information. When you do consider that information consider also we're talking about convictions, two convictions. One arose from an arrest in March of 1990, and the second arose from an arrest in February of 1991. The most recent arrest involved in these two past convictions were more than seven years or approximately seven years before the arrest on December 4th, 1997. Is it possible on this evidence that the ...
Summation 47
  1. ... heroin belonged to Betty Riles? It is. But we do not declare that a person is a criminal on the basis of it's possible. A person can be found to be a criminal only if you are convinced beyond a reasonable doubt. So what are the possibilities in this case? What are the choices? What are the options? There's three. Option number one is that you find that Betty Riles was telling the truth, Patrolman Ewing was not. He testified and if you come to that conclusion then you have an obligation to find Betty Riles not guilty. The second possibility is that Betty Riles was telling you the truth and Officer Ewing was not. That Betty Riles was lying and Officer Ewing was testifying truthfully. And if you come to that conclusion then you have an obligation to find Betty Riles guilty. The third possibility is you're not sure who's telling the truth. Members of the jury, that is reasonable doubt, and if you are not sure you have an obligation to find Betty Riles not guilty. This is not a contest between Detective Ewing and Betty Riles. This is a contest between the State of New Jersey and Betty Riles. Has the prosecutor satisfied his burden of proving this case beyond a reasonable doubt? Not guilty is not a statement that you're tolerant of drugs. Not guilty is not a ...
Summation 48
  1. ... statement that you are anti-police. Not guilty is a statement that you have a reasonable doubt in this case. Do not judge Betty Riles with sympathy. Do not judge Betty Riles with dislike. Judge her with fairness. Judge her not guilty. You are in charge of the butter.
  2. THE COURT: Thank you, Mr. Marain. Mr. Storch.
  3. (The summation of Mr. Marain concluded.)
  4. (The excerpt concluded.)
Certification

I, KATHLEEN SPERDUTO, C.S.R., License Number XI01151, an Official Court Reporter in and for the State of New Jersey, do hereby certify the foregoing to be prepared in full compliance with the current Transcript Format for Judicial Proceedings and is a true and accurate compressed transcript of my stenographic notes taken in the above matter to the best of my knowledge and ability.

Kathleen Sperduto, C.S.R., R.M.R.
Official Court Reporter
Middlesex County Courthouse
One Kennedy Square
New Brunswick, New Jersey
Date: July 27, 2000
NEXT: Jury Verdict

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