Spoiler Alert! Spoilers for “The Staircase” ahead.
Chapter 9: Reopening the Case
A Second Chance, A Second Trial.
We knew during the trial that Deaver was essentially making it up as he went along. His “experiments” were a joke, and his opinions were not consistent with what other blood spatter experts had written in articles and books or testified to in other cases.
But when an expert is willing to flat-out lie about the blood spatter even after being confronted with photos of the scene, to deny the validity of what other experts have agreed upon, and to “disagree” with whatever articles and books on blood spatter interpretation he is shown, it’s hard to prove he is lying, as opposed to simply providing a conflicting “expert opinion.”
The developments regarding Deaver’s history of lying and concealing evidence to help the prosecution, which surfaced in 2009 and 2010, gave me hope that we might be able to get Michael’s conviction overturned. We filed a motion seeking a new trial and asked for an evidentiary hearing, which Judge Hudson granted.
Despite Candace’s attempt to delay the hearing by attacking the new Durham DA, and the subsequent bomb threat (which we all believed had been called in by Candace after the judge denied her request to delay the hearing), the hearing began on December 7, 2011, Pearl Harbor Day.
Of course, at that hearing we had to establish that Deaver’s testimony had been a critical part of the prosecution’s case in 2003. Otherwise, even if we proved he had lied, that could be deemed “harmless error.” Fortunately, because the French film crew had videotaped all of the trial, there was a full record of what occurred – a full video record. I requested a copy of their videotape, then went back through the trial transcript, identified the key testimony and arguments by Deaver, Hardin and Black, and then made video clips of these to show to Judge Hudson during the hearing.
Before I reviewed the transcript again preparing for the 2011 hearing, I had completely forgotten that Hardin argued in closing that Deaver’s testimony was “critical” to his case because it established there had been a “second attack,” and that the second attack is what proved “premeditation.” This was pure gold for us – Michael had been charged with and convicted of first degree murder. That verdict required the jury to find premeditation. Hardin’s own closing therefore established that Deaver’s testimony was critical to Michael’s conviction.
We were also able to show the new experts we hired for the hearing the video clips of Deaver’s testimony and have them comment on what he had claimed under oath. The fact that we could thereby “bring” Judge Hudson back to the courtroom in 2003, so he could see and hear Deaver lie to him and the jury, was much more powerful than simply showing him the cold written transcript. Deaver’s tone and mannerisms amplified his false opinions.
In short, I sincerely believe being able to show Judge Hudson those clips was critically important to getting Michael a new trial. It turned out that Michael’s initial instinct in 2002 had been correct. Agreeing to the documentary had prevented a total miscarriage of justice, although it did not prevent Deaver and the prosecution from depriving Michael of eight years of his life.
The thing that struck me most throughout series was your honesty and integrity, not just in the courtroom, not just in interactions with Michael, but also when it was just you and the film crew. I always knew you were searching for the truth, and trying to give your client the due process that we are all afforded. It wasn’t (and never is) about proving that your client was innocent, it was about poking holes in everything they threw your way, and establishing the truth every step. You and your team were relentless, and our justice system would be in a much better place if it had more people like you in it. After reading through a summary of some of your previous cases, I can see that your whole career has truly been dedicated to the pursuit of a fair process, and I applaud you for that and hope that the best is yet to come. Cheers!
Thanks Cameron. I really appreciate that.
I second your sentiments, Cameron.
One of the things that continues to stick out in my mind is David’s explanation of the available verdict “not proven” in Scotland. So interesting to me. I kept wanting to yell that out at the TV whenever the court sessions were playing.
I cannot for one second imagine the emotional rollercoaster that happens during trials. This has given me a glimpse of the heartbreak, angst, passion, intelligence, and sacrifice that goes into it…all in the name of justice and truth.
I have a Psych degree and am fascinated that this was all filmed. While I can’t truly be inside the mind of David or Mike or the girls or anyone – I feel so honored and humbled that they would allow us into the intimacy of this 17 year journey.
On a lighter note, I wanted to punch the guy who couldn’t get your pictures cued correctly during your closing argument prep session. COME ON MAN!! 🙂
You did an amazing job defending Peterson against all odds. It makes me sick how they allowed both the death in Germany and his bisexuality into record. I believe it unfairly prejudiced the jury. Mr Deaver makes is a an embarrassment to his organized profession. Glad he was exposed but not before he caused a lot of damage.
David, there was mention of a juror on the trial who said they weighted Deaver’s testimony very heavily when deciding to convict Michael. I was wondering if you considered, or if it is even possible to call that juror to testify in the evidentiary hearing? Can a former juror be called to testify in such a matter?
That would not be permitted. Can only impeach a verdict if juror considered matters outside the record.
I am proud of the way you carried yourself Attorney Rudolf. Well done.
So many questions for you… This case is fascinating.
David, why was Deaver never prosecuted for perjury? Seems to me (and I’m sure most viewers) that he should be spending a significant amount of time in prison for robbing so many people of years and decades of their lives. Do you have any insight into this?
I’m a practicing criminal defense lawyer and I really enjoyed watching your work on The Staircase. I particularly loved the comment you made about your closing argument – that in other countries the question is guilty or not proven – and the top 10 reasonable doubt theme. I’m preparing for a trial right now and would love to review your closing argument for more inspiration. Is there any chance you could email me a copy? I would greatly appreciate it! As I said before, I am a big fan! All the best, Rachel