Sergio De La Pava - A Naked Singularity

DEFENSE COUNSEL: Objection.

THE COURT: Overruled.

MR. McSLAPPASHEE: The way he did it that day was simple.

DEFENSE COUNSEL: Objection.

THE COURT: Overruled. But do confine yourself to what the evidence will show Mr. Sharpenhan.

MR. SHARPENHAN: You will hear from Mr. Jerry Bolo. Mr. Bolo will testify that he has worked for the Salieri Construction Company for over nine years. The company does remodeling and restorations and owns a van that it uses for those purposes. Mr. Bolo will testify that the van is used for purely commercial purposes such as transporting materials and tools to and from work sites.

He will further testify further that at approximately 11:30 p.m. on the night of April 27 of last year he had parked the van outside of a church on 35th Street. In New York. He will testify about New York. Mr. Bolo will testify that 35th Street is in the county and state of New York. The 35th Street where this occurred is anyway. You will hear Mr. Bolo say that he parked the van outside of that church, which is on 35th Street inside the city and state of New York. The county and state of New York. He parked that van there because he was doing work on the church inside. The inside of the church. He will testify that he was doing this work for nuns. Nuns were in that church.

DEFENSE COUNSEL: Objection.

THE COURT: Overruled. Continue Mr. McSlappahan.

MR. McSLAPPAHAN: Mr. Bolo will testify that during the course of doing work on that church, he went out to his van to retrieve a tool that he needed. He will testify that as he neared that van he noticed that a window had been broken and that the side door had been opened. Imagine for a moment the fear that he must have felt.

DEFENSE COUNSEL: Objection.

THE COURT: Overruled.

MR. McSLAPPAHAN: He will testify that he approached the van, looked inside, and saw this defendant inside the van rummaging through its contents. At that point he called the police and he and the defendant waited there until Officer Leary arrived to place the defendant under arrest.

You will hear from Police Officer Parker Leary. Officer Leary will testify that on the night of April 27th he was working an 11:15 p.m. to 7:50 a.m. tour when he received a radio run indicating that someone had broken into a van on 35th Street in the county and state of New York.

DEFENSE COUNSEL: Objection.

THE COURT: Overruled.

MR. McSLAPPAHAN: Officer Leary will testify that when he arrived at that location, Mr. Bolo and the defendant were there. He will testify that after Mr. Bolo had told him what had happened, he placed Mr. Hurtado under arrest. Prior to arresting Hurtado, however, he searched him. In the course of that search, he found a screwdriver with a sharpened point. Officer Leary will further testify that such a screwdriver is commonly used to commit burglary related offenses.

DEFENSE COUNSEL: Objection.

THE COURT: Overruled.

MR. McSLAPPAHAN: At the end, the Court will instruct you on the law. That is solely the province of the Court and I am in no position to tell you what the law is.

Sufficient to say, that the law is clear that if this van is used for commercial purposes then breaking into it is a Burglary in the Third Degree.

DEFENSE COUNSEL: Objection.

THE COURT: Overruled.

MR. McSLAPPAHAN: The law says that this is a Burglary in the Third Degree.

DEFENSE COUNSEL: Objection.

THE COURT: Overruled.

MR. McSLAPPAHAN: This was a Burglary in the Third Degree.

DEFENSE COUNSEL: Objection.

THE COURT: Overruled.

MR. McSLAPPAHAN: At the end of the case I will be asking you to return the only verdict consistent with the evidence, which is not guilty to the only count in the indictment Burglary in the Third Degree. Withdrawn, I misspoke. I will be asking you to return a verdict of guilty to the indictment. To the only count in the indictment of Burglary. Burglary in the Third Degree, which is the only count in the indictment. Thank you.

THE COURT: Thank you Mr. McShanahan. Counsel will you be making an opening statement?

DEFENSE COUNSEL: I will but can we approach first?

THE COURT: No.

DEFENSE COUNSEL: Very well, though slightly bizarre. A short while ago every member of this jury stood up, raised their right hand, and took an oath. Like most oaths, what you did can essentially be viewed as a promise. Boiling it down even further what you promised to do was uphold and apply the law as it is explained to you. The law as it applies to hearing a case, to deliberating on a case, and most importantly here, the law as it relates to the criminal statute the defendant is accused of violating.

Why is this kind of oath necessary? Maybe the answer is this. I think that jurors, like all human beings entering a novel situation, enter jury service with the kind of preconceptions that may even amount to a predisposition. One of those is surely the tendency to view guilt or innocence as blanket, either/or concepts not susceptible to degrees or shades of variation. Of course our criminal justice system is, to some extent, founded on the notion of varying levels of culpability as evidenced by the fact that crimes come in differing degrees such as the Third Degree Burglary alleged here.

As we discussed during voir dire, those crimes and their respective degrees are themselves defined in statutes that break the crime down into separate, necessary elements, each of which must be proven beyond a reasonable doubt by the prosecutor if there is to be a conviction.

Why do I mention all of that in an opening statement? Simply because it is precisely that kind of subtle analysis which will be required of you in this case. As I said repeatedly during voir dire, this will not be a dramatic case of the kind you might see on Perry Mason or Matlock. You will not be hearing from the defendant and there will be no surprise witnesses emerging from the last row of the courtroom. Moreover, your primary task will not be to decide what happened on the night of April 27th. Your true obligation is to hold the prosecution to their burden of proof. Specifically, to hold them to the extremely stringent yet highly appropriate standard of proof that is proof beyond all reasonable doubt. And you’ll be asked to steadfastly apply that standard to every single element of the crime charged in this indictment. Once you do that you’ll see this indictment for what it is, a worthless piece of paper because the DA cannot legally prove beyond a reasonable doubt that the defendant committed the crime it alleges. In short, you’ll agree with me that the prosecution greatly overreached in charging Mr. Hurtado with the very serious crime of Burglary in the Third Degree where the evidence makes out a Petit Larceny at best. In only that way can you properly fulfill the oath you took, a critical oath that often serves as primary protection for the lone individual who finds the full powers of the state arrayed against him. Thank you.

THE COURT: Thank you counsels. As I said ladies and gentlemen that is going to be all for today We have a relatively busy day scheduled for tomorrow, during which I anticipate that you will hear all of the testimony in the case and begin your deliberations. Because of that I’m going to ask that you all be here at 9:30 sharp tomorrow morning. Please remember not to enter the courtroom until you are escorted in by a court officer. Also remember my instructions to you. You have not heard any evidence in this case yet. You are not to discuss this case with any of your fellow jurors or with anyone else for that matter. You are not to form any opinions on this case based on what has transpired here today, namely, jury selection and opening statements. You are not to visit the scene where this incident occurred. I don’t anticipate any such coverage, but should there be any, you must avoid any exposure to media coverage of this case.