Tuesday, November 18, 2008

By JEFF JARDINE
jjardine@modbee.com

last updated: July 27, 2008 11:59:35 AM

Delivering a sermon before a church full of awestruck worshippers on Sunday is one thing.

Testifying before 12 poker-faced jurors is another.

The difference? Nobody cross-examines the preacher after the homily. That's what made Doug Porter's testimony last week so intriguing. Charged with murder, attempted murder, embezzlement and elder abuse, the former Hickman Community Church pastor took a huge risk by taking the stand in Stanislaus County Superior Court.

The majority of murder defendants do not testify. Their attorneys generally recommend against it, though it's the defendant's call. Too much can go wrong. They might panic. They might contradict themselves. They might become argumentative with the prosecutor, often helping the state's case more than their own. Worse yet, they might be themselves, which, in some cases, can have an adverse effect.

"Once they're on the stand long enough, their true personalities come through," said Jim Hammer, a former San Francisco prosecutor who offers legal insight during high-profile cases, including Scott Peterson's murder trial.

"For a defense attorney, that's probably the single toughest piece of strategy in a big case," said Dean Johnson, a former San Mateo County prosecutor who also monitored the Peterson trial. "Most of the time, you don't want the defendant to take the stand. But that decision is solely in the defendant's hands. The case always gets better for us (prosecutors) when the defendant takes the stand."

Why? Because if there are weaknesses in the prosecutor's case, a loose-lipped defendant can strengthen them, Johnson said.

"If there are any holes, they inevitably fill them," Johnson said. "They might say something and won't see that the prosecution has the evidence (to contradict them). Then the jury thinks, '(The defendant) just looked at us and, under the penalty of perjury, lied to us.' "

Peterson considered testifying until his lawyer, Mark Geragos, hired former Alameda County prosecutor Michael Cardoza to do a mock cross-examination in Peterson's jail cell. It obviously didn't go well. Peterson never took the stand before being convicted of killing his wife and unborn son and is now on San Quentin State Prison's death row.

But, in a way, the jurors did hear from Peterson when the prosecution played audiotapes of his conversations with girlfriend Amber Frey.

O.J. Simpson also went through some mock cross-examinations. His legal team hired attorney Cristina Arguedas, who posed as prosecutor Marcia Clark -- even wearing a wig to resemble her, Johnson said.

"He was uncomfortable," he said. Simpson never took the stand and was acquitted.

Then there was the case of Hans Reiser, the Bay Area computer programmer who took the stand in his own defense and all but guaranteed his conviction for the murder of his wife, Nina.

Reiser interrupted his attorney and nearly was barred from the courtroom by the judge.

He spent 11 days on the stand, each day improving the prosecution's case. When the trial ended in April, the judge told him: "You are rude. You are arrogant. There are not enough words in the English language to describe the way you are."

"Hans Reiser comes off as this completely narcissistic guy, and the jury wouldn't have seen it if he hadn't taken the stand," Hammer said.

Earlier this month, Reiser led authorities to his wife's body.

"This is the big argument you have with your client," said Ruth Jones, a professor at McGeorge School of Law in Sacramento. "Yeah, you (the client) can do a great direct, but what about the cross? We practice to cross-exam people like you. We know what we're doing. The vast majority of witnesses have never been cross-examined before; they've never been involved in the court system at all."

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