Appellate Advocacy Blog

Editor: Tessa L. Dysart
The University of Arizona
James E. Rogers College of Law

Wednesday, September 21, 2022

Fact statements and points of view, part I

The fact statement is an advocate's chance to tell a story (within the bounds of the appropriate standard of review) that engages the reader and makes her more likely to see events in a way that elicits sympathy for your client's position. Though not a place for overt advocacy--connecting the dots--it is a place for subtle persuasion--laying out the dots so that the reader clearly sees the picture by connecting the dots for themselves before you do so explicitly in the argument section.

When telling a story, it matters from whose vantage point you recount it. As I read through records, I'm constantly asking myself, "from whose perspective am I going to tell this?" Third-person omniscient? From the victim's point of view? The perpetrator's? A witness? An investigator? Most briefs will include several of those, but choosing whose perspective to use and when takes judgment and skill. 

A few thoughts on how to figure this out:

1. Look for good quotes. Some witnesses are natural storytellers and just have a way of evoking mental images that engage the reader and help her visualize what happened. If you are gifted with such witness testimony, quote it liberally.

2. Develop an eye for irony. Every law school exam is chock-full of dramatic irony. Oh, B--little do you know that A already sold Blackacre to C years ago! And here you are buying it without a records search. Sad! If a witness tells a story well, you'll be able to pick out these kinds of moments and use them to engaging effect. 

An example of the first two principles from Fred Voros, a longtime appellate advocate and former judge on the Utah Court of Appeals. This was a from a case stemming from the kidnapping and abuse of a young girl. The testimony is from the victim's mother: "On May 1, 1993, defendant purchased a red or maroon 1984 Oldsmobile.  One week later, on May 8, he dropped in at a friend’s shop in Brigham City. . . . On 8 May 1993, Ashley H. was six years old and her sister Trisha was five.  At about 6:30 p.m. that Saturday evening the girls got on their bikes to go to a school near their Corinne home.  Ashley “loved to be on her bike, riding the little course she set up at the school.”

The girls’ mother, Deborah H., tried to walk down to the school to be with them, but the phone kept ringing.  Deborah finally told the last caller that she had to leave and “hung up on whoever it was.” Just then, the mother testified, “I thought I heard my daughters’ little prancing feet on the porch, but instead when I popped the door open to welcome them home, it was just [Trisha] dragging her sister’s bike up on the porch.”  Trisha was angry. She said that Ashley had fallen off her bike and then gone with a stranger.  Trisha was “very mad” because she knew “that’s not what we are supposed to do.” Trisha said the stranger took Ashley away in a red car. . . ."

The mother's testimony is almost poetic--you can almost see the movie as she describes the scenes. If you have a little girl, you know what those "little prancing feet" sound like. If you rode bikes as a kid, you know what those "little courses" by the school look like (incidentally, my friends and I had a bike course on a dirt lot set up right across the street from our elementary school). So vivid and (in hindsight) poignant.

That poignancy comes largely from dramatic irony. The reader knows--but the mother doesn't--that something is terribly wrong. And when the it begins to dawn on the mother, it has not even occurred to her younger daughter, who is mad at the wrong person (her sister) and for the wrong reason (not following a family rule). Gripping stuff.

3. Consider formulas that work. There's a reason that Law and Order has been on the air (in various incarnations) for decades and that other such shows (NCIS, CSI, true-crime documentaries) are so successful. The crime procedural formula works. The unsuspecting citizen or cop stumbles across a dead body. Cut to the investigation. Cut to the prosecution. Cut to the denouement and learn how and why the body really got there. You can echo this sort of formula in a brief to good effect. For example, using a flash-forward: start with the biggest/most important event in the case, then go back and show the reader how things got to that point. Or breaking up bits of the story (as Judge Bacharach's book talks about) into digestible chunks to aid reader attention and retention using headings and white space.

Consider this fact statement from a murder case (with record cites omitted): complete with crime-procedural formula, a couple of cliches (break in the case, raining after a murder), and headings.  

“[W]e had no known suspects, we had nothing, we just had a dead girl in the car.”

Officers Jim Spangenberg and Joshua Scharman were patrolling Salt Lake City’s west side one February afternoon.  There had recently been a “rash of Honda thefts” in Salt Lake, and in the parking lot of Poplar Grove Park was a blue Honda Accord “just parked there by itself.”  A light rain was falling, but the driver’s side window was down and the car appeared empty. It seemed like just another stolen car.  The officers stopped to take a look.

While Officer Scharman stayed in the patrol car to run the license plate, Officer Spangenberg looked for signs of tampering with the steering column. At first, Officer Spangenberg did not see anything unusual in the back seat—“a black coat, a towel, some other miscellaneous items, didn’t think too much of it.” But after giving the steering column a once over, he looked back and saw a knee poking out from under the towel.

Under the towel and coat lay the body of Tara Brennan.  She had a belt around her neck, stab wounds to her face, defensive wounds to her hands, and a “significant slash” to her neck.  The car’s interior bore signs of a desperate struggle: shoe scuff marks on the ceiling and a window; a broken rear view mirror and directional signal; and “blood throughout” the back of the car. 

Tara, a bright girl with a promising future, had a troubled past.  Though a college graduate and law student, she struggled with a crack cocaine addiction.  After failing drug treatment programs in California, she returned to Utah to get away from bad influences and get sober.    She spent the day before her murder with her mother, running errands and getting her old Honda Accord running again.  After the errands, Tara drove the car around, ostensibly to see if it still ran well after sitting in her mother’s driveway for a year.  She had about $200 with her. But when police found her body the next day, the wallet and money she had with her the day before were gone.  

Police ran down leads, collected and analyzed physical evidence, interviewed Tara’s friends and family, and re-traced Tara’s steps, all to no avail.  After all that, they had “no known suspects, [they] had nothing, [they] just had a dead girl in the car.”  

A short-lived lead

A few weeks later, crime lab analysts found Defendant’s DNA on a cigarette butt found in a cup holder in the Accord’s front seat.  Police interviewed Defendant and showed him a picture of Tara.  He “recognized her right off,” saying he had seen her near the homeless shelter.  He claimed that she approached him to buy crack cocaine, he obliged, and they smoked it together using his pipe, after which he smoked the cigarette that led police to him. He claimed that after about 45 minutes together, they parted ways and he went to the overflow shelter for the night.  The shelter log did not show Defendant checking in that night, but police “exhausted every lead [they] had,” and the case went cold for more than two years.

A break in the case

Y-STR DNA testing showed promise for a break in the case.  STR (short tandem repeat) testing had been used reliably for some time, but was usually applied to the entire strand of DNA.  Y-STR testing is “the exact same science,” but focuses only on the Y chromosome.  This focus enables analysts to identify a very small amount of male DNA that might otherwise go undetected in the presence of a large amount of female DNA. But because the Y chromosome is usually identical up and down paternal lines, Y-STR can only exclude suspects rather than affirmatively identify them.  Even so, some Y chromosome profiles, or “haplotypes,” are rarer than others.  

Police took the murder weapon and Tara’s fingernail clippings for Y-chromosome DNA testing.  On both the murder weapon and the fingernails, analysts found a male haplotype so rare that it was not even in their DNA comparison database.  It excluded 99.6% of males, but not Defendant.  

In May 2006, police interviewed Defendant again.   He again admitted to being with Tara the night she was murdered, but gave more details of his activities before and after the murder, some of which differed from his first account..."

There are many more techniques that I will lay out in future posts. Stay tuned!

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