TP-224 "Trees in the Forest"

Doug Salvesen, a litigator at the Boston firm of Yurko & Perry, will tell you if the The Practice still makes perfect.

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3/30/98

This week's repeat episode of The Practice deals with the killing of an inner city gang member, a homeless bum, and a rat. Guess which victim gets the most sympathy.

The Jets and The Sharks

Eugene Young defends Raymond Burnett, a nineteen-year old member of the gang known as The Bangers, charged with second-degree murder for killing his friend, Charles Johnson, during a gang initiation. In order to become a member of this particular gang, Johnson was required to submit passively to a thrashing by the toughest gang member, who happens to be Burnett. During the beating, Johnson is punched in the throat, his windpipe is crushed, and he suffocates to death.

The prosecution's trial strategy is to attack Burnett's character. Johnson's mother testifies that Burnett was responsible for drawing her son into the gang culture. At age eleven, Johnson was dealing drugs for Burnett. In addition, Burnett has a couple of prior convictions that the prosecution brings out during his cross-examination. In his closing, the prosecutor insinuates that the jury should convict Burnett not just because he is responsible for Johnson's death, but also because a conviction will be a step towards solving the gang problem.

Young tries to keep the jury focused on the circumstances of Johnson's death rather than his client's character. In his closing, Young argues that the trial is not a forum to cure society's ills but is an examination of "this man and this death." In a clever twist, Young urges the jury not to be swayed by emotion and "turn into a gang." The jury, thus admonished, returns a verdict of not guilty.

Young's instincts were right. In an actual trial, a defense attorney would have sought much more forcefully to keep out much of the character evidence and to restrict the testimony to the immediate events surrounding the killing. Although a defendant charged with second-degree murder could have testified in his own defense, as Burnett did, it is more likely that the substance of his defense would have been provided by other witnesses. An expert on gang culture would have testified regarding the initiation ritual and that there is generally no intent to kill the inductee. Other gang members would have testified to the friendship between Burnett and Johnson and Burnett's reaction to the accidental killing. This would have obviated any need to have Burnett testify and thus avoid the introduction of much of the character evidence.

While the facts of Johnson's killing strongly suggest the lack of intent, there was a much better case for manslaughter. Before the trial, the prosecution had offered a deal which would have required Burnett to plead guilty to manslaughter, but this offer was withdrawn during the trial. In an actual trial, the prosecution would have also charged Burnett with manslaughter, so the jury could have had the option of convicting him of that lesser charge. One other nit, which I have mentioned before, is that the order of closing arguments was mixed up. In a criminal trial the defense closes first, the prosecution last.

He Coulda Been A Contender, But Instead . . .

In the second story, Ronald Feldman is charged with vehicular manslaughter for running over a homeless man with his Mercedes. The only witnesses to the accident are Bobby Snow, a vagrant, and Snow's male appendage, Mr. Penis. Helen Gamble, who gets this case the day before trial, tries to turn it into diatribe against society's neglect of the homeless. She actually says something like, "If a man dies in the forest and no one hears him, has he ever lived?" Gamble urges the jury, improperly, to convict Feldman as a way to give value to the victim's life. That's an argument you generally hear in a civil trial, not in a criminal trial, and it does not ring true.

The defense attorney correctly points out that there was no indication that Feldman was driving inappropriately. Nor is there any convincing evidence from Mr. Penis or any other witness that Feldman knew that he had actually injured a person. The defense attorney could have given the closing that Eugene Young gave, changing a word here or there. The result is the same. Not guilty. 

You Dirty Rat

The third killing involves a rat. After the rat runs around the office scaring the female attorneys for some time, as well as Jimmy, Rebecca takes matters into her own hands and mashes the rat underfoot. This creates problems for her with the Save Our Animals Association, which is presenting her the Basset Hound Award for her work supporting shelters in Roxbury and Jamaica Plain. While this is played for laughs, and Rebecca's acceptance speech ("I really hate rats") is pretty funny, the show could also be making the point that more people get upset over the rat's death than the death of a homeless man. I myself noticed that more people were upset about the killing of the puppy that Lindsay received as a gift from Hinks than they were about his beheading. I know, I know, Hinks's was a murderous psychopath and the dog was simply not housetrained - but the differing reactions to these deaths continues to surprise.

These articles originally appeared on FindLaw (www.findlaw.com)