July 27, 2008

Porter risked it all as a witness

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."

So, with all that in mind, how did Porter do?

He gave articulate and detailed answers in the direct examination by attorney Kirk McAllister.

Porter's memory went fuzzy, however, when it came to explaining how he spent the fortune of Frank Craig, the 85-year-old Hickman rancher whose life and money Porter is accused of taking.

Prosecutor John R. Mayne asked Porter why money Craig set aside for an agriculture museum in Hickman ended up in improvements on Porter's estate in La Grange. Porter grew snippety with Mayne at times, evasive at others, including when Mayne asked where Craig's money had gone.

"Uh ... places," Porter responded.

Judge Thomas Zeff twice admonished Porter -- for failing to answer questions as asked and for talking when he wasn't supposed to, including while Zeff was talking.

"Don't interrupt me, either," Zeff snapped at Porter.

"You fight with the judge, you lose every time," Hammer said, speaking in general terms and not about the Porter case.

Later, Mayne asked a question about possible drug use by Porter's son, Aaron.

Instead of answering something akin to, "I don't know," Porter said, "My son has never done any drugs in his life."

That gave Mayne the opening to question Porter about his son's recent indictment on crack cocaine charges in Alabama. Porter claimed he didn't know that Aaron Porter, who had been a police officer in Mobile, had been indicted there.

"Arrested?" Mayne followed.

"Yes," Porter replied.

When talking about the two crashes -- one in March 2002 when Craig was critically injured and the second in April 2004 when he died -- Porter, the driver in both crashes, spoke in technical terms. He showed little emotion toward Craig in describing either accident, even as he talked about trying to rescue Craig after the pickup plunged into an irrigation canal near Hickman.

So what impact did Porter make on the jurors? Did he wow them? Did he explain things in a way that undercuts the prosecution's case?

Did he come off as truthful or evasive? Honest and misunderstood or deceitful and crooked?

"Juries are more sophisticated these days," Bay Area defense attorney Daniel Horowitz said. "They want to hear from the defendant. They really give your client credit for taking the stand. They can tell the difference between honest mistakes and lies."

Although the trial is nearing its conclusion, McAllister still has witnesses to call and evidence to present.

By the end of this week or early next, Porter's fate will rest in the hands of those 12 poker-faced jurors who believed either his explanations or the prosecutor's evidence and witnesses.

Porter obviously felt his best chance was on the stand.

"It's one of the riskiest things a defendant can ever do," Hammer said. "It's a total roll of the dice. Sometimes, it's all the defendant has. If it tips the balance -- if just one juror sympathizes -- it was worth the risk."

Jeff Jardine's column appears Sundays, Tuesdays and Thursdays in Local News. He can be reached at jjardine@modbee.com or 578-2383.

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