Source: The Legal Intelligencer
Date: September 15, 2011
Byline: Gina Passarella
Pa. Justices Mull Showing Jury Slow-Motion Video of Murder
An attorney for Lewis M. Jordan, found guilty of first-degree murder and sentenced to death for the 2007 shooting of a Philadelphia police officer in a Dunkin Donuts, argued before the Pennsylvania Supreme Court Wednesday that evidence put on during the guilt phase of the trial improperly swayed the jury to find Jordan committed premeditated murder.
Defense attorney Michael Coard said his client had pled guilty to the robbery and murder, leaving the jury to decide only whether the killing of Officer Chuck Cassidy was a first- or second-degree offense. But the evidence, including the widow’s testimony and playing surveillance footage of the crime in slow motion, was prejudicial to his client, Coard said.
The jury in Commonwealth v. Jordan saw the surveillance footage of the murder in real time and then in slow motion. Coard said the slowing down of the video for the jury was a novel issue.
Showing the videotape in slow motion went to the heart of the jury’s determination of whether the crime was premeditated. It showed an “exaggerated” portrayal of events to the jury, he said.
Justice Seamus P. McCaffery asked whether the state was showing the slow-motion footage simply to rebut the defense’s argument that Lewis acted out of panic when he shot Cassidy.
Coard said showing the footage in real time would have been enough.
“Slow motion enhanced and supported the commonwealth’s theory in an unrealistic way,” he said.
Justice J. Michael Eakin asked how long the two-second footage of the real-time incident was when played in slow motion. Coard said it was at least twice that amount of time, or maybe four or five seconds.
McCaffery asked whether “this court should reverse the trial court based on an additional three seconds of footage?”
Coard said it should because if the real-time footage happened to have been five minutes, double the length in slow motion would have been even more significant.
Justice Max Baer said Coard had an excellent argument for the trial court level, but questioned how any appeals court in the country could reverse a trial judge on the issue.
The justices had plenty of questions on the slow-motion video for the state’s attorney, too. Eakin asked Philadelphia Assistant District Attorney Anthony V. Pomeranz why the video was slowed down. Pomeranz said it was to allow the jury to assess Jordan’s intent.
“What can you see in this case only in the slower version that you couldn’t see in the fast version?” Eakin asked.
Pomeranz again said it was to better assess the intent, which wasn’t enough for Eakin, who more sternly asked how slowing it down helps. Pomeranz pointed out the jury could better see Jordan turn and raise the gun before shooting. He further argued that Jordan wasn’t prejudiced by the video being shown in slow motion.
Eakin said he thought Jordan had a problem showing how he was prejudiced, but said he wasn’t sure how a four second video could be “anything other than more dramatic” than the real-time version.
“If this was Criss Angel doing hand tricks — he’s a magician — I understand, but how does this help?” Eakin asked.
The attorneys and the court also spent a chunk of the argument session discussing whether Cassidy’s wife’s testimony was appropriate.
Coard said Judy Cassidy was a “heroic wife of a fallen officer,” but said her testimony went beyond the “life in being” testimony in a guilt phase of a trial. He said it was emotional and extensive and more appropriate for a victim impact statement at the penalty phase of a case.
“So the police officer’s wife should not have been emotional during her testimony?” McCaffery quickly interjected.
Coard said she should have been, but it would have been appropriate after the guilt phase of the trial.
Justice Joan Orie Melvin asked whether an objection was raised to her testimony during trial. Coard said when his co-counsel motioned to the judge, the judge said “no” and that he wouldn’t talk about it now. An official objection was overruled in a sidebar later.
Before Pomeranz could begin his argument, Chief Justice Ronald D. Castille said the widow’s testimony struck him as something typically done in the penalty phase. Pomeranz said the wife wasn’t discussing how she couldn’t live without her husband, but rather what he wore to a recent Halloween party before his Oct. 31 shooting and the last time he saw his son.
Castille asked what “life in being” has to do with a Halloween party or Cassidy’s last dinner.
“That’s beyond ‘life in being,'” Castille said. “That’s appealing to the jury’s emotions it would seem.”
Pomeranz said it was not the type of evidence that would sway a jury, but rather factual information. He said the trial judge admitted it was more emotional than usual, but not prejudicial.
Baer asked what possible pertinence the testimony had to the degree of guilt. Pomeranz said it didn’t speak to the elements of the crime, but wasn’t overly emotional or prejudicial.
Coard also argued the trial court shouldn’t have allowed the “gory” details of the five robberies Jordan committed before the sixth one that led to the shooting death of Cassidy. Coard said Jordan had pled guilty to those crimes and they were piled on unnecessarily in the guilt phase of the murder trial.
Justice Debra Todd asked why the state couldn’t have raised the robberies to show evidence of escalating criminal behavior. Coard said it was only in the fifth robbery that he first used a gun, shooting it into the ground.
McCaffery pointed out that Jordan had a gun in each robbery, fired it in the fifth and shot and killed someone in the sixth. He asked how that didn’t show escalating criminal behavior.
Coard said that doesn’t show Jordan intended to kill anyone.
The Following is from Attorney Michael Coard, expanding upon the content of the article and not published by the above journal.
On September 14, 2011, attorney activist Michael Coard argued in a death penalty case before the Pennsylvania Supreme Court in an attempt to save the life of John Lewis who killed a Philadelphia police officer in 2007.
He reminded the court that Lewis had pled guilty to the homicide but pointed out that it was second- not first- degree murder. First degree murder is “premeditated.” But second degree murder is “felony murder,” which means a death resulted during the commission of a felony. Coard stated that this is precisely what happened in this case. He said that Lewis killed the officer during a felony, which was the robbery and that he did not go to the scene of the robbery to shoot a cop but only to rob a store. First degree murder allows for a death sentence while the penalty for second degree murder is life imprisonment. The shooting death, Coard noted, was merely a tragic “panicky reaction” to the officer “suddenly surprising” Lewis from behind.
Coard’s three oral arguments to save Lewis’s life were the following. The first argument was that the trial judge committed reversible error by permitting the DA to play the video of the shooting in slow motion. Coard said that such a viewing presented the misleading, unfair, unrealistic, and totally false impression that Lewis “premeditated.”
The second argument was that the judge also erred by allowing the DA to present specific evidence of five other robberies to the jury in the murder trial. Coard mentioned that the only legal purpose for any DA to present any evidence in any case is to prove a defendant guilty. But in this situation, Lewis had already pled guilty to those robberies. Therefore, there was nothing for the DA to prove. The only reason for presenting that irrelevant robbery evidence, Coard contended, was to unlawfully get the jury emotionally charged up against Lewis.
The third argument was that the judge again erred, this time by allowing the officer’s widow to present exceptionally emotionally charged testimony during the trial instead of during the sentencing hearing. In these kinds of cases, the law requires only “life in being” testimony from family members at trial. In other words, during the trial to determine guilty or not guilty, they can testify only about their knowledge of the person having been alive some time shortly before the official time of death. But if a defendant is found guilty, then and only then can a witness give “victim impact” testimony, meaning (emotional) testimony about how sad he/she became as a result of the death. But the widow in this case was allowed to improperly give the “victim impact” testimony during the trial and that in turn improperly swayed the jury with overwhelming emotion.
You can view the Supreme Court argument tonight at 7:00 on the Pennsylvania Cable Network (on channel 35 in most Philadelphia areas).