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Victory by video

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Photo from website of U.S. District Court (W.D. Mi.).

A department store has a jewelry sale. A store loss prevention officer (LPO) sets his sights on a shopper trying on various rings. Based on his suspicions, he detains the customer after she leaves the store, and finds she is wearing a ring that fits an empty box that his colleague found in the jewelry department.

The customer hires us. We immediately subpoena video footage of the incident, to reduce the risk that the video will be destroyed, misplaced, or taped over. The LPO calls me and amiably offers for me to review and copy the video at any time. I show up and see my client in the video trying on and off many rings, with a sale sign in the background. I see her walk with a salesperson to a cash register, pull out a credit card, pay, and leave the store with her purchases in a bag.

The prosecutor will not negotiate a dismissal or case inactivation in exchange for community service. We go to trial. The prosecutor’s sole witness is the LPO, who tries telling an open-and-shut story about my client’s trying on many items, and being found with a ring on her finger that matches an empty ring box in the jewelry department. The prosecutor makes no effort to offer any video footage into evidence.

I put the LPO on the witness stand in my case in chief for the sole purpose of getting the video into evidence as a defense exhibit. I begin playing the lengthy video for the judge. The case is jailable not over 90 days, which means no jury trial right unless we lose and appeal to the Maryland Circuit Court for a de novo trial.

The hour draws towards the court’s closing time, and the judge directs that the clerk’s office set a date for the trial to resume. The prosecutor points out that the LPO is set to go overseas with the military in two months. A few days later, I watch the calendar tick away as the trial date resumption is set for after the LPO will be overseas. I do not need the LPO any further, because I have gotten the video admitted into evidence. All his presence will do is —- as a prosecution rebuttal witness — to explain away my theory and theme of the case that my client merely was trying rings on and off during a sale, probably entered the store with jewelry (considering that she loves jewelry so much to have tried on and off so many rings), paid for her purchase, and had nothing to do with the empty ring box in the jewelry department that could have been present before my client’s arrival and that would have fit just about any woman’s ring. I told the judge that we do not know what was in my client’s bag (considering in part that the LPO failed to mention the bag, let alone what was in there), and that this alone amounted to reasonable doubt.

On our return to court to resume the trial, the most favorable part of the video resumes, showing our client finishing trying rings on and off, paying for a purchase, and leaving the store with her purchase.

In acquitting our client, the judge points out that the LPO’s story made sense before she watched the video, but that the LPO’s testimony was not corroborated by the video.

What would have happened if no video footage had been available, or did not get the scenery I needed? Had my client actually have stolen something, the video may have been to our detriment. On the other hand, department store LPO’s so often bring video footage that the risk often is best to subpoena the video and to seek holes therein in the prosecution’s case, and to discuss the video and rest of the case with the client in terms of whether to seek to negotiate a case resolution, and the type of resolution to seek. Some theft videos are very lengthy and involve multiple camera angles, thus making it all the less feasible to wait until the court date to review the video footage on a laptop computer.

I defended  many more theft cases as a public defender lawyer than I do as a private practitioner. I have learned that a wide range of effective defenses exist for theft cases, including challenging ownership, intention to steal, knowledge that property was stolen property, and whether the property seized was even stolen property in the first place. Theft convictions can be a black mark on a person’s record forever; it is heartening to know that so many strong defenses often exist in theft prosecutions.