At A Murder Trial In Queens, New York With My Brother

An attorney's opening statement is a story

I was in the Queens County Courthouse on Monday to watch my brother Samuel give his opening statement in a trial. Samuel’s one of a small cadre of NYC public defenders who exclusively represent those accused of murder. His clients are people who cannot afford private legal representation. Most of them are Black or Hispanic.

The vibe in the courtroom that morning was reassuring to me. It always makes me happy to see my “little” brother, tall and handsome in his dark suit, his familiar face primed for action.

Overall, there was a sense of order, a sense of respect. The judge was in control unaided by the theatrics of a bailiff or a gavel. He gave instructions to the jurors who appeared eager and earnest. Half of them requested writing materials to take notes. The judge cautioned them that notes are not evidence. ¹

The Case

In brief, my brother’s client Luis was one of three men indicted for first degree manslaughter (a type of murder charge) and two counts of gang violence. In the summer of 2019 around midnight, Luis left his home with his younger brother and cousin to go to a nearby convenience store to buy beer. Afterwards, they stayed outside the store drinking, alongside a number of other men. Everyone was drunk and getting drunker.

A fight broke out between Luis’s cousin and another man named Fabian, one of those fights where the combatants mostly circle each other and the few punches thrown either miss or are lackluster in force.

Near the start of the fight, Luis’s younger brother did something terrible. The brother came at Fabian from the side and stabbed Fabian three times in rapid succession with a thin blade. Fabian continued the circling fight, not noticing he’d been stabbed until a few minutes had passed. Tragically, two of the stabs nicked Fabian’s heart. Fabian ended up losing so much blood that he eventually died.

Fabian’s death was the result of a stupid, cowardly, wanton act that should be appropriately punished. To anyone reading this who knew Fabian as a friend or otherwise, I send my condolences.

The events of that night were captured on video by two surveillance cameras and one smartphone recording with sound, taken by someone in the crowd.

Samuel’s client Luis was a peripheral participant in the melee. At one point, well after the stab wounds had been inflicted, Luis broke free of a bystander who’d been holding him back. Luis approached Fabian, flailed at him, perhaps making contact perhaps not.  

While he was being held back, Luis called out “let me go” many times. When he broke free and came near Fabian, Luis said “I’m gonna kill you, motherfucker.” By that time, Fabian was staggering from the blood loss, and his friends led him down the block where he slumped to the pavement.

In order to prove the manslaughter and gang violence charges against Luis, the prosecution has to prove beyond a reasonable doubt that Luis aided and abetted in the stabbing, both in his actions and in his intent.

An attorney’s opening statement is a story

In a trial, the purpose of an opening statement is to tell the jury a story using the evidence––the facts and events––that the jury will hear during the trial. The attorneys are not too different from writers creating a narrative.   

In this trial, there was no material contradiction between what the prosecution said and what Samuel said. The differences were in the context, the details, the emphasis, and the order in which the attorneys unfolded the facts and the events.

The prosecutor’s story was that the three relatives––Luis, his brother, and cousin––went to the convenience store acting as a gang, i.e., as one unit, with intent to cause harm. Therefore, all three are equally guilty of stabbing Fabian. The prosecutor emphasized the gruesome details of Fabian’s death––the blood loss turning from a small leak into a gush, the blood covering Fabian’s torso, the blood flooding onto the ground.  

The three men, including Luis, were related, they arrived at the scene as a group, they were Hispanic with similar names, and they were young men out late at night, drunk and continuing to drink. The result was that Fabian died an awful and tragic death.

Unlike the prosecutor’s story, my brother Samuel’s opening statement told the story of what happened moment to moment. Throughout his opening, he made connections and references to the videos that the jurors were going to see so that they could put the images into context.

Like any effective work of writing or rhetoric, Samuel told a compelling narrative with specific and memorable details. His client Luis was wearing his FedEx workpants with stripes that reflected the streetlights. The bystander holding Luis back from getting involved was wearing a backpack. Another bystander was wearing a jersey with the number fourteen.

Samuel’s details also included what the jury was not going to hear. The jury would not see or hear evidence of any plans by the three men to act in concert, would not see or hear evidence that Luis knew that his younger brother had a knife, would not see or hear evidence that Luis caused any physical harm to the victim Fabian, and would not see or hear evidence that Luis had any intent to cause physical harm to Fabian.

All the while, Samuel pointed out details that contradicted the prosecution’s burden of proof. Luis was standing at a distance when the stabbing happened, and he did not see it happen. After the fight was over, Luis lingered at the scene, not what a guilty man would normally do. In all likelihood when Luis left the scene, he was still unaware of the mortal wounds inflicted on Fabian.

Samuel’s co-counsel summed it up well in a single sentence. Three people should not be indicted or convicted for what one man did alone.

The biggest mystery to me in the case is why the prosecution indicted Luis.

Maybe the prosecution thought that they could sway the jury, because they’d be up against an overworked public defender who would be easy to out-lawyer.

Instead, the prosecution wound up facing my brother Samuel––brilliant, tireless, eloquent, and dedicated to the ideal that everyone deserves a good defense. I’ve never met anyone who loved their job more than Samuel loves his or worked harder at it. And Samuel is never more motivated than when he’s convinced his client is innocent.

The unjust consequences to Luis of his arrest and indictment

The flippant legal cliché is that a prosecutor can indict a “ham sandwich,” because grand juries decide whether to indict after hearing only from the prosecution. That “ham sandwich” quip loses its cuteness when you see a person suffer because he was indicted for crimes he did not commit.

The consequences to Luis of his indictment have already been dreadful. When Luis was arrested five years ago, he spent sixty days in jail until his family could post a bail bond of $20,000. That was an extraordinary hardship for Luis’s family. And extraordinarily lucky for Luis. See the chart below.

If Luis’s family had not come up with the money for the bail bond, Luis might have spent the past five years in jail awaiting trial. That’s not at all consistent with the concept of innocent until proven guilty, something we supposedly hold dear.

There are about 450,000 people held in American jails, less than a third of them accused of a violent crime. ²

When your freedom turns on whether you can afford bail, that is not consistent with another element of our sacred American creed: equal justice under the law.

While Luis was fortunate that his family made bail, in the eyes of employers he was judged to be guilty. Luis lost his steady job after he was indicted and jailed. When he applied for other jobs, background checks, which the internet has made readily available and cheap, revealed Luis’s open indictment and arrest.

So for the past five years as Luis awaited his trial, he was unable to get any steady employment. Who would hire someone with an unresolved first degree manslaughter charge? Luis is now an hourly gig delivery worker.

As well, Luis has had to live under the stress of his pending trial for five years. If convicted, Luis faces a sentence of twenty-five years.  And how confident can Luis be in the criminal justice system given his arrest, indictment, and imprisonment for a crime for which there is seemingly no evidence?

If Luis is found not guilty, his arrest and indictment will not be immediately expunged. It will likely follow him around forever. There are states, including New York, that have passed “clean slate” laws for certain crimes to give people like Luis a fair shot at a life of opportunity if they are found not guilty. Or if found guilty, after they’ve served their time. But keep in mind that there are news stories on the internet about Luis’s arrest in connection with the crime. ³

Poverty and Criminal Justice

Our mass arrest and incarceration culture has contributed to a persistent cycle of poverty and thus economic inequality. People incarcerated have their earnings reduced by about 50% once they are released. ⁴

In fact, employment opportunities, wealth, and income all plunge when one of a family’s adults is incarcerated. And children with an incarcerated parent are far more likely to be incarcerated themselves. ⁵

I’ve had the benefit of following Samuel’s cases over the years, which has given me a different perspective on criminal justice. If not for Samuel, I might be fixated on tabloid stories of criminals awaiting trial who are released and then go on to commit other crimes.

These stories, a specialty of my hometown tabloid, the New York Post, are aimed at misleading people into thinking that New York State’s bail reform law has caused a terrible crime wave. It’s not true–– see “Bail reform, crime waves and the fake news about them” –––but, as

Jesse Singal

recently wrote, the stories can trigger images of “rampaging violent people who are completely unconstrained by the justice system .”⁶

It is true that many of Samuel’s clients are guilty, and it is good that they are in jail and then sent to prison so they do not kill again. But far too many of my brother’s clients who are innocent end up serving long stretches of time in jail awaiting trial.  Far too many prosecutions are capricious and unwarranted.

I hope Samuel’s jury is as earnest as they appear. I hope they take good notes. I hope they give Luis the justice he deserves.

I hope above all that more people like Samuel rise to positions of influence so they can address the flaws in our criminal justice system either systemically or one client at a time like Samuel does.

If he went into private practice, Samuel could easily command a seven figure income. He’s my brother and, to me, he’s a quiet and noble hero.

Question for the comments: What has been your experience with the criminal justice system whether as lawyer, juror, reporter, observer, or otherwise?

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Great scene from The Verdict, one of my brother Samuel’s favorite legal movies, perhaps Paul Newman’s greatest role.

1. But notes are always important. Something I need to say to

Jillian Hess

of

Noted

a terrific Substack devoted to the notes of famous writers and other prominent people.

2. Prison Policy Initiative

3. New York is one of twelve states to have enacted a Clean Slate Law

4. America’s Broken Criminal Legal System Contributes to Wealth inequality

5. Brennan Center For Justice

6.

Jesse Singal

“Criminal Justice Reform Is Good, But, Like Everything, It Requires Common Sense And Moderation” Below is an excerpt.

“What happens when the phrase criminal justice reform triggers images not of a hapless teen locked up for decades on shamelessly overblown charges, but rampaging violent people who are completely unconstrained by the justice system? It won’t matter if the raw number of stories are low, or if the stories themselves have nothing to do with the policies in dispute. Nothing is more potent fuel for reactionary policies than the sense that violent people are “getting away with it,” so it’s worth asking ‘How soft is too soft’?”