Criminal Law's Cool - Deep Dive #4 - When a Trial Judge Shuts Down Your Defense

When a trial judge shuts down your legitimate defense and the Jury isn't allowed to hear it.

This week's case: People v. montgomery, decided January 18, 2018 by the Appellate Division, First Department (Manhattan)

This week's topic: The Trial Judge Shutting Down a Legitimate Defense 


So being a criminal defense lawyer is hard for a lot of reasons.  You probably can guess several of the reasons being a criminal defense lawyer is hard.  One of them that you probably wouldn't guess is the trial judge point blank denying you the opportunity to present your defense to the jury.  I mean totally - like you are not allowed to call witnesses to prove your defense and you are not allowed to speak your defense to the jury.  It doesn't matter that you may have prepared your defense this way or that you may have evidence and witnesses lined up, or that you may have prepared jury selection, opening and closing statements, and cross examinations based on your defense.  With the wave of the trial judge's hand, your witnesses are "irrelevant" and you are precluded from talking about your defense to the jury.  Does this sound like some sort of frontier justice from 1830 in some saloon? 

Try Manhattan Supreme Court, Criminal Term, in the year 2018.  The trial Judge who precluded the legitimate defense from trial was A. Kirke Bartley, former Queens prosecutor, now trial court judge in Manhattan Supreme Court.  Enjoy a fascinating window into this hellish nightmare for the poor soul of a defense lawyer on this week's Deep Dive.

Background Relevant to this Deep Dive

The defendant, Mr. Montgomery, was arrested after being identified in several lineups.  The lineups were conducted by the police as part of an investigation into what the police themselves described as a "pattern" of seven robberies they believed to have been committed by the same person.  Mr. Montgomery was identified in four of seven lineups.  Mr. Montgomery was NOT identified in three of seven lineups.  (One witness identified a "filler" in the lineup, that is a person who is known not to have committed the robbery.  Two witnesses said that they did not recognize anyone in the lineups in which Mr. Montgomery was a participant.)

The prosecutor went forward and obtained indictments against Mr. Montgomery on the four robberies where he was identified, leaving the three other robberies as dormant cases.  Do not assume that the Government believed that the defendant was not a participant in the three robberies left over.  During motion practice as the indicted cases progressed, the Government affirmatively maintained that the robberies were part of a "pattern" and also that proof of one of the robberies charged should be permitted to help prove the identity of the defendant on the other robberies.

The Government made this argument about proof of one of the four robberies being admissible on the issue of identity of the robber of the other robberies because of a tricky issue that is in play when people are accused of more than one distinct crime.  As a general rule, it is considered less than ideal for a defendant to be tried for multiple distinct crimes in the same trial because of the worry that jurors will become overwhelmed by the volume of criminal charges and simply assume that at least one of the charges must be true.  Therefore, in response to the defense lawyer's complaint about having to do four trials at once, the Government argued that BECAUSE THIS WAS A PATTERN OF SIMILAR ROBBERIES, the very fact that there was a pattern is actually legitimate proof that the same person committed them all.  Therefore, there shouldn't be a problem with trying them all together.  Otherwise, the argument goes, it wouldn't be fair to the Government because the Government would be deprived of perfectly good evidence that it needs to make its case against Mr. Montgomery.

The Good for the Goose - Good for the Gander Defense

But the defense had a very interesting defense, and factually compelling defense.

According to the defense, indeed all of the seven robberies that the police and the prosecutors thought were part of a pattern, WERE INDEED committed by the same person - just NOT THE DEFENDANT.  The defendant's lawyer had video surveillance from several, but not all of the robberies supporting the notion that indeed it was the same person who committed all seven of the robberies.  

So why was this so important?  Because remember that at three out of seven times, witnesses either identified a filler or affirmatively said that they did not recognize Mr. Montgomery.  If even one of the three non-identifiers failed to identify Mr. Gentry because in fact he was not the robber, then, assuming the robberies were all committed by the same person, he must not be guilty of ANY of them.  

The defense wanted to wrap this up into a defense to all of the four robberies with which he was charged.  The defense therefore wanted actually to present evidence of the three robberies the Government did not indict him for and present evidence that he was innocent of all of those robberies.  The defense wanted to do that so that the defense lawyer could then argue that if Mr. Montgomery were innocent of those other three, and those other three were indeed part of the same pattern robberies, that he must be not guilty of the charged robberies.

And you would think the Government would have had a hard time getting up the nerve to complain about the defendant being allowed to present this evidence and make these claims.  After all, the Government already made the exact same sort of arguments before to make the case for it being allowed to put all the different robbery cases together in one big trial.  The Government specifically argued that evidence of one distinct robbery helped to prove the identity of the robber in another distinct robbery.  And the Government was the one that labeled all seven robberies as a pattern in the first place, with the theory being that the same person committed all seven robberies.

The Government Complains

But just when you think the Government could not possibly have the nerve to take a position in utter opposition to its own position in the very same case, you have to think again.

When the defense attempted to raise this defense, the Government actually objected.  Suddenly, the Government was terribly concerned about "confusing" the jury with multiple distinct robberies.  And suddenly the Government was concerned with the unfairness of something about one robbery being used to argue a conclusion about a different robbery. 

The Government howled.  And the Judge listened. 

Welcome to the world of criminal defense.  The movie My Cousin Vinny is actually one of the most accurate portrayals of criminal trial work (other than the speed with which the case proceeded to trial) and one particular scene comes to mind.  There is a scene where Joe Pesci finally makes a legally very good (in real life) argument about needing an adjournment in the trial to challenge some expert testimony offered by the Government.  The Judge responds to Pesci's argument something like this: "...that was a very good, well thought out, cogent argument...application DENIED".  Pesci's expression of disbelief, resignation, and frustration is priceless and alas all too familiar to most criminal defense lawyers.

The Trial Judge Shuts Down the Defense - As in Totally Shuts it Down

The trial Judge agreed with the Government's complaints and arguments, and denied the defendant the right to present evidence about the true nature of the "pattern" even though it was the Government itself that initially characterized the additional robberies as a pattern, and even though it was the Government's theory that it was in fact the same person who had committed all seven robberies. 

Suddenly these concepts (that were completely reasonable and necessary when they benefited the Government's case) were too much for the jury to handle.

And I have to say that experiences such as this, where the very core of the defense that you hope to run and that you legitimately expect to run is cut out from under you, are what keep you up at night as a defense lawyer.  From the bench a Judge makes a ruling that utterly decimates everything you wanted to be able to do and everything you prepared for and then with a wave of his hand and says, "move on" as if you are going to be able to "move on" to some new utterly different defense.   Being able to withstand this sort of stress in front of a jury and not appear to be rattled is part of what is required to be an effective trial lawyer. 

Lest you imagine that the evidence was strong...

Mr. Montgomery's first trial resulted in a mistrial because the jurors, after three days of deliberating, could not reach a unanimous verdict.  Therefore, it is fairly safe to assume that the evidence against Mr. Montgomery even without the added evidence of him not being identified in three other lineups from the pattern, was not all that great. 

Nevertheless, second time, for the Government, was a charm, and they got the convictions they wanted.

The Decision on Appeal

On appeal the First Department unanimously held that Judge Bartley was wrong to deny the defense the ability to present the evidence and make the argument.  In this case, the Appeals judges believed that the defense had sufficiently justified the defense such that it ought to have been available to the jury.  Whether any jury will accept the argument is a different story, perhaps, but the First Department Judges decided that the jury should have at least had the information.  Defense counsel should have been allowed to use the evidence of the failure of the witnesses to identify Mr. Montgomery in the lineups for the other robberies. 

What is truly troubling about this case and the preclusion of the defense lawyer's entire defense from a case such as this is that this case and its defense related to a serious concern of actual innocence.  Remember that as a serious, but technical matter, a criminal case is not really meant to be about a determination of innocence.  It is about whether the Government can prove a defendant guilty beyond a reasonable doubt.  Being found "not guilty" therefore is NOT a determination of being pure and innocent.  It could be, but doesn't have to be.  We believe that before our Government can deprive us of our freedom, it needs to be able to document proof to a very high level, and if it can't document that proof, it shouldn't take our freedom.

Therefore, many criminal cases turn on this serious, important, but technical issue -- not so much whether the accused is actually pure and innocent, but whether the Government has enough proof to justify depriving someone of his freedom.

But here, the defense was raising, in these circumstances, the very real possibility of actual innocence.  Did the people who identified Mr. Montgomery pick him out of the lineups because he WAS the robber, or because he LOOKED LIKE the robber?  This isn't about quantity of evidence, this defense was about an issue of actual innocence.  The trial judge here, in depriving the defense of the ability just to present the evidence of the other robberies, wasn't issuing a single ruling as to the admissibility of a single question on hearsay grounds.  Here the trial judge was excluding the entire defense of the accused and one that called into question the real possibility that an innocent person was on trial.  The trial judge was denying the jury the chance even to consider the defense.  In the end, who knows whether the jury would have accepted or rejected the defense, but for pity sake, to deny the accused the ability even to speak the defense?  For a Judge facing decisions about how to rule on trial issues, where there is even a sliver of possibility that actual innocence is in play, it would seem that the approach that would be most compatible with restful sleep at night would be one where discretionary rulings tilted toward allowing the defense to run its defense.

The oral argument about the case from October 11, 2017 is available online at the First Department website - note that the entire oral argument session is recorded, and that People v. Montgomery is about halfway through the broadcast archive I have linked.

Here is a link to People v. Montgomery.


By Don Murray, Esq.

Don Murray is a New York City Criminal lawyer who has been exclusively practicing criminal defense for 27 years.  He is available for consultation on criminal matters by appointment.  Please call or text 718-268-2171.