California Superior Court judges normally allow the prosecutor to give an opening statement followed by a defense lawyer performing the same act so that each side has an equal opportunity to address the jury at the outset of a trial.
But is it fair for a judge to block a defense lawyer from speaking to jurors until after the prosecutor gives an opening statement and presents the government’s entire case?
That hypothetical question became August 2011 reality In People v. Joseph Son, a bizarre sexual assault cold case out of Huntington Beach that won worldwide attention because the defendant served as a Dr. Evil sidekick in Austin Powers: International Man of Mystery.
After first announcing he’d give both sides 30 minutes each for opening statements, Orange County Judge Francisco Briseno, a former deputy district attorney, changed his mind, allowing over defense objections prosecutor Eric Scarborough to monopolize what turned out to be the trial’s first week.
Outside the presence of the jury, Briseno fretted about what the defense would tell jurors, in part, because Son had not declared if he would testify.
Scarborough went on to lose one felony count (conspiracy to commit murder) but won another (torture).
Claiming Briseno violated his constitutional right to a fair trial, an incarcerated Son appealed to federal judges in December 2014 and, after studying the issue, U.S. Magistrate Judge Andrew J. Wistrich agreed Briseno botched his decision.
“Prohibiting defense counsel from informing the jury what he expects the evidence to show, what he expects the evidence will not show, and to prepare the jury for the nature of the graphic evidence to be introduced went beyond what sound and considered discretion required,” Wistrich declared in a March opinion. “Considered discretion did not require the court to remove defense counsel’s only opportunity to blunt the impact of [the victim’s] testimony . . . We therefore conclude the trial court erred in denying defendant the right to make an opening statement prior to the presentation of the prosecutor’s case-in-chief.”
But the federal judge called the blunder “harmless” because, in Wistrich’s view, Briseno essentially provided a key component of what would have been a defense opening statement by informing jurors to keep an open mind throughout the trial.
Employing circular logic, Wistrich’s added that Briseno’s error didn’t matter because Son was found guilty.
The federal judge ultimately dismissed all the defendant’s complaints, including the fact that Briseno blocked the defense from thoroughly questioning the victim about what even the police conceded were her contradictory descriptions of her wounds.
Upshot: Because U.S. District Court Judge Percy Anderson accepted Wistrich’s findings late last month, Son, 45 and a onetime mixed martial arts star, will continue serving his punishment: life in prison without the possibility for parole. He’s presently housed at the California Medical Facility in Vacaville. In October 2011, he murdered his cellmate, according to prison officials.
