Interesting read. Too bad Derstine didn't read this before MR's trial. I did find it rather odd in which the defense did not give an opening statement. I have been looking into information as to why Derstine waived his right to presenting an opening statement, which I always felt was critical in showing the accused innocence or raise a reasonable doubt. From all the articles I have read so far, it sounds like a
big mistake not to give an opening statement. I can give a few reasons of my own as to why I believe Derstine failed to give an open statement:
1. He wanted to hear how the Crown was going to present everything and hear what each witness had to say before he can spin his theory on what happened.
2. Derstine knows or feels with great certainty there is no way he can convince the jurors MR is not guilty of abduction, sexual assault causing bodily harm and murder of Tori, based on evidence including witnesses and expert witnesses testimony. He already knows MR is guilty of abduction and murder under the criminal code.
3. Derstine is not as brilliant as some people speculate or claim he is or he himself has portrayed himself to be.
4. Derstine doesn't really give a carp how this case plays out, he's still getting his 15 minutes of fame for representing this high profile case. In the end, he will do his little interview outside London's courthouse and say
I tried, but it's impossible to argue a case like this with overwhelming evidence. We will appeal the decision.
It still boggles my mind Derstine has had ample opportunities to cross examine numerous witnesses, to raise doubt in the jurors minds, but has yet he failed to do so.
What really was an
ah ha moment for me was when he asked McLean if the blood, sperm and DNA evidence showed MR had sex with Tori. That was a huge red flag for me. Derstine was only worried about the sexual assault charges. Derstine may as well said
ok I know I cannot argue away the abduction or murder charges and because you McLean, have not been clear with your technical explanation let's throw this question out there about the sex, common sense tells us, we all know something happened between MR and Tori in order for you to find their blood and DNA mixed.
MOO that's all!
The Defense Must Open
The defendant in a criminal case needs a good theme, just as
much as, if not more than, the plaintiff in a civil case. For example:
This is a case of self-defense. Or if you can carefully talk about
the burden of proof in opening statement, you have made great
strides in improving your chances of an acquittal or a hung jury.
Even when you have no real defense, never waive the opportunity
to communicate with the jury. Get up and say something! Stress
how important it is to everyone, not only the defendant, that the
safeguards of the presumption of innocence be rigorously applied.
Explain that the presumption of innocence does not end when the
trial starts, but continues until and unless the prosecution presents
believable evidence to the jurys satisfaction beyond a reasonable
doubt on each and every element of the charged offenses.
In both state and federal court, I have too often seen defense
counsel announce to the court, Your Honor, we will reserve our
opening statement. Without showing outward emotion, I cringe.
Reserve your opening? Reserve what? The prosecution has just
painted a picture of your client as a person who deals in drugs and
conspires with those who sell them. Drugs have permeated our
society and ruined thousands of lives, even some of the children,
spouses, and friends of the jurors. Counsel must get up and change
that picture or at least neutralize itby showing that your client
did not knowingly, with specific intent, violate the controlled substance laws. Defense counsel must remember that you are trying
the case to the jury and not the judge. The rule of primacy dictates
that defense counsel make an opening statement. You must defuse
and neutralize the rule of primacy. Get up! Get up! Get up! Talk
about how the burden of proof never shifts to the defendant. Tell
the jurors in opening that not guilty means not proved guilty.
Early on, you must touch the hearts and minds of the jurors by
showing how wrong these charges against the accused are. If you
wait until the prosecution rests to begin your opening statement
in a criminal case, you havewith rare exceptionjust sent your
client to prison. Every criminal defense lawyer should know that
it is an uphill climb. The criminal defendant is at a disadvantage
from the beginning. The jury is thinking, He or she must have
done something wrong; otherwise there would not be a trial.
http://www.michbar.org/journal/pdf/pdf4article1805.pdf
