The Fifth Amendment vs. The Third Degree

Edward Fleury declines to testify in his own defense

Massachussens, parents and gun advocates have all been following closely the trial of Edward Fleury, a retired police chief, who is on trial for involuntary manslaughter in conjunction with a gun show he organized and promoted. At the show, Christopher Bezilj, age 8, accidently shot himself to death while firing an Uzi machine gun. My earlier posts on this trial can be found here and here.

The prosecution recently rested its case, confronting Rosemary Scapicchio, Flery's defense lawyer, with some difficult strategic decisions. One that faces almost every criminal defense team is whether the defendant should testify in his own defense. In the end, Ms. Scapicchio opted not to put her client on the stand.

When should a defendant testify?

There are a few main factors that a defense attorney must consider when deciding whether to put her client on the stand.

The first question is whether the case is predominantly about "who did what to whom when" (factual dispute) or whether the defendant's conduct was, in fact, criminal (interpretive dispute).  When the dispute is factual, the defendant might very well be in a position to shed light on important questions. It might be very important to the defense for the jury to hear "his side" of the story.

This implicates the next question. Will the probative value of the defendant's testimony outweigh the costs associated with his testimony? Is there another defense witness available to testify to the defense version of events? Is the defendant belligerent? Does he seem shifty or untrustworthy? Does he look threatening? Can he be trusted not to start inventing things on the stand? All of these factors must be taken into account as part of the cost-benefit analysis associated with deciding to have the defendant testify.

The Fleury trial is fairly unique in that almost all of the questions to be resolved by the jury are interpretive ones. With respect to the manslaughter charge, the jury must decide whether running a gun show at which children were permitted to fire machine guns is intrinsically so risky as to be criminally negligent.

Even the three charges of providing a machine gun to minors rest on an interpretive question. There is an exception to the prohibition for when the child is supervised by an adult with a machine gun license. The jury must decide what exactly constitutes "suprevision," as Fleury was licensed and present, but not directly involved in handling the guns.

Mr. Fleury has no particular expertise with respect to these interpretive questions. While he might have been able to testify as to whether he thought he was "supervising" the children firing the machine guns, it seems counterproductive to have him take more responsibility for what was happening at the gun show. Putting Mr. Fleury on the stand therefore offered a variety of dangers, but not much positive value.

The defense rests... completely

In the end, Ms. Scapicchio chose to mount no defense at all. She called no witnesses, relying instead on the strength of her cross-examinations to introduce reasonable doubt into the minds of the jurors.

I admit to finding this strategy a bit baffling. While there might not have been much she could do to counter the factual case presented by the prosecution, those pesky interpretive questions were left hanging. Might she not have called some expert on gun shows to testify that it is quite common to allow children to fire machine guns? Isn't there some sort of NRA guideline regarding parental responsibility for firearm safety when children are involved?

While I certainly understand the defense decision not to put Mr. Fleury on the stand, I think it might have been unwise not to mount any defense at all.

In my earlier posts, I discussed the importance of deflecting blame away from Mr. Fleury, even if that strategy required the risky move of blaming the victim's father for his death. Early in the trial, Ms. Scapicchio seemed to be following this path. Somewhat surprisingly, in her closing arguments, she asserted that the death had been a tragic accident, nothing more. She chose not to directly implicate the father. It will be interesting to see how this strategy plays out.