How did San Francisco criminal defense lawyer Eric Safire find himself, mid-hearing, asking the judge and the prosecution for assurances that he would not be arrested?
He engaged in a little courtroom theatre, and it blew up in his face.
Courtroom theatrics are always risky. Just ask the O.J. prosecutors, who asked a ham actor to try on gloves in front of a jury. Sometimes it merely makes a lawyer look foolish, or look like he or she has no regard for the jury's intelligence. Other times it blows up in the lawyers face.
Mr. Safire found himself defending Charles "Cheese" Heard at a preliminary hearing on charges of murder spurred by a bejeweled Bamm-Bamm pendent. [No, really.] When the prosecutor asked the witness to identify Cheese, Mr. Safire apparently made a pre-arranged signal, leading to eight of Cheese's compatriots — alleged by the government to be gang members — to stand up in unison and glare at the witness. This did not stop the identification, but did lead to the arrest of the eight spectators on witness intimidation charges.
Safire — who asserts that his aim was to confuse the witness and leave her unable to pick his client out from the crowd — was reduced to blubbing:
Safire then sought assurances from Judge Wallace Douglass and the prosecutor that he would be immune from prosecution. "Before I continue, I want a representation from the district attorney's office that I'm not going to be arrested," Safire said, adding that the men were "here at my request – I motioned for them to stand up."
He said the men's arrest created a "chilling effect on my ability to represent my client." He threatened to withdraw from the case.
"I can't guarantee that you won't be arrested," Douglass said. "The district attorney can arrest who he wants."
Now, having your client dress like someone else in the courtroom, and sit near them, in hopes that the witness will identify the wrong person is a classic bit of theatre. If it works, and if the case rests on identification, then it's great. Of course, if it doesn't work, then it merely reinforces the strength of the identification. Moreover, it's almost always impractical, because in most courtrooms your client is the guy sitting next to you at counsel table, and few judges will let you seat the client in the audience during a witness' testimony. It's not clear here where Cheese was seated. If Cheese was seated at counsel table (or near it), and Mr. Safire arranged for eight people in the audience to stand up, that seems extraordinarily unlikely to interfere with the identification of Cheese, and profoundly and predictably likely to be taken as witness intimidation. I think Mr. Safire needs to hire his own lawyer.
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