2012 Clinet and a murder trial in Maine.

[JoelD]

Congrats, Jim. You deserve that 2000 Calon, it's a great, masculine wine.

It seemed 50/50 from what must have obviously been very one sided articles that were posted. Will we get to hear all the other details at some point from a less biased source?

[Nicklasss]

Not sure what you are saying, Nicola.
You are not allowed to hunt in Canada?
You are not allowed to defend yourself?

Yes we're allowed to hunt, yes we're allowed to defend ourselve, but we don't own 2-3 guns per capita in average, like in the USA.

Legislation vs guns is more strict here, you can still get guns, but it is less in our karma. So this is why that case is not one we see often here.

So now, i'm looking forward the first person in the USA, that will kill many people, and go to court saying that he/she was feeling in danger, all those people were dangerous for the integrity/security of himself/herself, so shoot them all for self defense. Surely not guilty. Ok. I'm simplifying things a bit too much with my bad and sad example, but managing that many guns and shooting like in USA is simply a different reality than here.

And i still like you Jim as Canada is your second favorite country after... France.

[JimHow]

I guess it is only the third full murder acquittal in Maine in the past 30 years. I think I should quit while I’m ahead. Yes Joel there are many tales to tell from this case, was just regaling my lawyer buddies over a beer.

[Blanquito]

My favorite part of this riveting tale was the picture of the BD addressing the court. The man in his element!

[AKR]

Ha, great that you picked up in that, Arv.
A juror actually wrote a note to the judge asking that very question in the middle of the trial, a question he did not answer.
He had a very serious felony record of robberies, a federal drug conviction, etc. The judge barred us from letting the jury know that. His buddy by his side had four felony robbery convictions. The jury heard about those because he testified.

My phone hasn’t stopped ringing, I’m getting calls from around the country.

Yes, understandable that the victim is not the one being put on trial. But it seems like a prosecutor - who would have had access to all that information - should have given greater weight to those factors when initially bringing charges. This case will be part of that office's permanent record now, a real black eye.

No matter what, the acquitted doesn't get back the two years of his life he was detained, nor does the victim get revived, so everyone in the matter is worse off. Anger management classes would be good for more of society.

Still congratulations on this; it astounds me that this was even pursued by the state.

[marcs]

Now you need to help your poor defendant in Alaska! That seems like it could well be a case of actual innocence and a rush to judgement. Having the state turn up with some fragmentary DNA evidence to charge you with murder after 30 years, what a nightmare

[JimHow]

Arv: What do you think is going to happen to Elizabeth Holmes?

[DavidG]

Well done Jim, congratulations. My two take-aways:

First, confirmation that the "news" media is mostly about entertainment and marketing, and have replaced car salesmen as most likely to spout rubbish. A broad brush, yes, but it covers well.

Second, thank God there are still people like you willing and able to do this work, and rational people willing to listen to reason. The last 5 years have made me doubt that. It’s reassuring to see we’re not all slaves to the sound bite.

And speaking of sound bite, how well do you think jurors adhere to admonitions not to listen to or read news of the case? How much of a factor is reporting after the trial has started?

[JimHow]

Thanks, Dave, yeah, I've been dealing with that for years.
People can't believe how I get some of these people off and I tell them, well, don't believe everything you read in the newspapers.
The newspaper reporter is going to send me the recording of my one hour and 45 minute closing, I'll try to post it here when I get it.

[DavidG]

Technical question: did both bullets show an upward trajectory through the body, suggesting both were fired while the attacker was still upright and by the car?

[JimHow]

Yes. The autopsy evidence was very favorable to us. Both bullet wounds were angled, and the trajectories were from bottom up and left to right, very consistent with being fired upward from inside the very low to the ground Volkswagen Golf, in which the driver's seat is literally like one foot above the pavement.

[DavidG]

That tells a very different story than "shot twice in the back."

One of the newspaper articles you linked earlier said that the bullet that "lodged near his spine" killed him, not the one that put "three good-sized holes in his heart." That alone told me two things: the prosecutor was making shit up, and the reporter was swallowing it hook, line, and sinker.

[JimHow]

Yeah, this was a classic case of the state police developing a theory about what happened, then trying to fit square pegs into round holes to make the forensic evidence work for their theory. The worst part was when they tried to develop a theory that Jean suffered "immediate paraplegia" when a bullet hit not directly on the spine, but concussed the nerve endings near the dura and membranes surrounding the spine. The state's own hack expert acknowledged that is is a "very rare phenomenon," it is something that occurs in combat settings with lower velocity ballistics. We had our own neurologist expert at the ready but we didn't need to call him because we made minced meat out of their expert. It's really scary to think that people get convicted of serious crimes all the time on this type of shit from the government.

[DavidG]

Sounds like the prosecution didn’t bother analyzing the autopsy evidence beyond what the police and ME told them.

How far from the car was the body? If not more than a step or two, if I was the DA I would’ve dropped the case. If more than a few steps, if I were prosecuting my theory would go as follows:

First shot, near the spine… sure, self defense. The deceased turned to run as soon as he saw the gun but that’s a split second. The shell casing in the car is consistent with that.

But the second shot, the one that went through the heart and killed him? That would’ve dropped him on the spot. No one can run away with 3 good-sized holes in their heart. (I’m assuming the news report was accurate on that detail?) If he’d been standing next to the car when the killing shot was fired, the body would have been next to the car. So he must have been running away and no closer than x feet from the car, even if you account for momentum, when he was shot in the back the second time.

The second shell casing outside the car is consistent with the gun being held outside the car when it was fired into the back of the retreating victim. And the bullet trajectory? If you’re running away after being shot in the back, you’re not running upright. You’re leaning and stumbling forward, so a bullet fired horizontal to the ground would have exactly the trajectory through the victim's body that the autopsy showed, assuming it didn’t deviate from it’s path after it entered the victim's back as he was bent over forward while running away.

If necessary, I could probably find a credible expert to explain that a bullet can change direction after it enters the body, especially if it enters at an angle and encounters tissue of different density. So let’s not put too much weight on the angle "angle," the body was found x feet from the car and that’s where the victim was, running away, when the second shot blew apart his heart.

What’s theJim How defense of that theory?

[marcs]

LOL David is sitting there thinking he would vote to convict....

[DavidG]

And the first shot couldn’t have been the one that put 3 holes in his heart because that would have dropped him next to the car.

[JimHow]

The body was about five feet past the back of the car.
He was shot right through the center of the heart.
Interestingly, the state never argued that that shot stopped him in his steps.
We actually researched that and it appears you can continue to run briefly after you've been shot in the heart.
They hung their hat on the immediate paraplegia from the spine injury.
The security video showed Jean running in an upright position as he emerged from behind the car.
He would have had to have been bent over in an almost inverse L shape for the bullets to have traveled in the paths consistent with the autopsy.
There were three factors that weighed in our favor:
1. The lone bullet casing in the car was our strongest piece of evidence. The casing is ejected to the right and back. It had to be fired from the car. The casing outside the car was right outside the door and not consistent with the state's case. Had Gage been firing back with his gun parallel to the car, it would have ejected much further out away from the car and to the back of Gage, toward the front of his car. On cross the state's expert conceded that it could have landed on Gage's lap and otherwise been brushed outside the car onto the pavement right in front of the door.
2. The angles deduced from the autopsy were very consistent with being shot from below and to the left. They were both steep angles, but one in particular started just below his lowest rib and went upward through his heart.
3. All witnesses heard the shots fired rapidly: "Pa-pow"... "Bang-bang"... "One right after another"... "Almost simultaneously"... "Like a semi-automatic weapon."
When you connected all the dots, there's no way he was shot behind the car.

[JimHow]

We had two nurses on our jury, including the forewoman, who was crying during my closing.

[DavidG]

LOL David is sitting there thinking he would vote to convict....

I’m just thinking… the prosecutor might have been able to present a stronger case. Not saying I would vote to convict, only that it might have made Jim's job even tougher.

What did the evidence show? How far from the car was the body?

Ahhh… I see Jim's follow-up. Yeah, no way they should have even brought this to trial.

[JoelD]

3. All witnesses heard the shots fired rapidly: "Pa-pow"... "Bang-bang"... "One right after another"... "Almost simultaneously"... "Like a semi-automatic weapon."
When you connected all the dots, there's no way he was shot behind the car.

Now that we have all this info, and 5ft from the car really isn't that far. This clearly sounds like self defense. You're taught to fire multiple shots in quick succession. And it was only two shots, not 4-5.

Glad you got him off, Jim. He may have made some questionable decisions but he obviously didn't deserve to even be in Jail for the two years that he was. That's terrible.

Is there any kind of retribution for that time served? Where they are found innocent, maybe shouldn't have even been prosecuted?

[JimHow]

No, he's out of luck, Joel, 26 months in the prime of his life gone.
I'm still furious at the state in this case.
In the end, though, we are lucky they didn't want to offer us a manslaughter plea.
They offered only murder, which carries a minimum 25 years.
When they refused to budge from murder, in a sense that made our jobs easier.
When you ain't got nothing, you got nothing to lose.
My client would have probably taken a manslaughter plea for as much as 10 years, in order to mitigate the risk against 25 to life.
Instead, he walked out of the courthouse. They took him in the back room to take off the shackles beneath his court suit, he went and hugged his mother and father, and walked out of the courthouse a free man. It was pretty amazing.

[JoelD]

No, he's out of luck, Joel, 26 months in the prime of his life gone.
I'm still furious at the state in this case.
In the end, though, we are lucky they didn't want to offer us a manslaughter plea.
They offered only murder, which carries a minimum 25 years.
When they refused to budge from murder, in a sense that made our jobs easier.
When you ain't got nothing, you got nothing to lose.
My client would have probably taken a manslaughter plea for as much as 10 years, in order to mitigate the risk against 25 to life.
Instead, he walked out of the courthouse. They took him in the back room to take off the shackles beneath his court suit, he went and hugged his mother and father, and walked out of the courthouse a free man. It was pretty amazing.

Well, as sad as that is about the 26 months, if he would have taken the manslaughter plea it would have been a lot longer. I think it's about as good of an outcome as can be expected under the circumstances.

Glad he found you. Hopefully he can move on from this. I'll be very curious to hear more in a few days!

[DavidG]

What's really scary is the amount of latitude given to prosecutors and that too often the facts don't come to light or they aren't understood or taken seriously by the jury. The deck is heavily stacked against those with good representation, let alone those assigned to an overworked and underpaid public defender.

[Blanquito]

So true. Imagine the defendant’s fate if he didn’t have a rockstar lawyer, say a poor person of color with an overworked public defender? Sometimes it feels like way too many innocents are incarcerated while white collar criminals walk free.

[AKR]

Arv: What do you think is going to happen to Elizabeth Holmes?

I don't think she's will get anywhere near the punishment she deserves. Some key evidence - a database of test results - was destroyed during the Theranos bankruptcy proceedings and that ends up cloaking how much villainy was committed. The items she is being charged with - mostly financial fraudulent representation type of issues - pale compared to giving thousands upon thousands of people wrong medical tests results, and tearing their lives apart over that.

It also seems to me that juries have an even harder time understanding financial minutiae compared to conventional physical crime.

[Winona Chief]

Jim, wondering if you were able to illustrate to the jury the difference in size of the defendant and the deceased? Sounds like the defendant was a very small person and the other guy was the size of an NFL defensive line man. Seems to me, being attacked by someone so much bigger would justify use of a gun in defense.

Chris Bublitz

[JimHow]

Indeed I was, Chris.
Jean was 283 pounds per the autopsy.
Gage is 105 pounds.
Jean's 200 pound buddy Keelin was by his side as well.
During my closing I had Gage stand up at defense counsel table to show how small he is.
He was standing next to my associate Jesse Archer, who is 6'4" and 230 pounds.
It was at that moment that the jury forewoman started crying, and others looked like they were going to follow suit.
We blew up a large poster board image of that still shot of Jean and Keelin, which I utilized during trial and had up on the tripod through most of my closing.

[AKR]

Seems to me, being attacked by someone so much bigger would justify use of a gun in defense.

As we sometimes say out West, 'God made man ... but Samuel Colt made them equal'