There are a thousand thoughts lying within a man that he does not know till he takes up a pen to write. -William Makepeace Thackeray, novelist (1811-1863)

Thackeray of course captures the thought far better than me, but the sentiment is the same; the reason I started blogging was to re-examine the basic principles of trial work to see if they stand up to scrutiny. Character witnesses are a good example. My default position with them is to run as far as possible from them. Clients love the idea of character evidence, but are naive about the possible damage. I have witnessed too many disasters with them. I watched more than one experienced lawyer go down in flames with character witnesses.

The fear with character evidence is that, while direct is highly restrictive, the cross is highly expansive. When reputation is at issue, the world of gossip and innuendo is perfectly admissible. After all, reputation is gossip, i.e., what people say and think about you.

A good cross-examiner can lay waste to your defense through the power of just asking questions. “Have you heard that Mr. Jones is a drug trafficker?” or mafia don? Or child molester? Or thief? Just asking the question regardless of the answer is damaging. Imagine the image arising in the minds of the jurors.

But watching the Murray legal team use five wonderful character witnesses has me re-examining my prejudice. The rule is actually very restrictive for direct but, as usual in practice, it didn’t work that way and they got in far more than the rule allows. The prosecution also had overplayed the greed factor, thus asking for this rebuttal.

Here is a summary of their powerful witnessing:

1. Gerry Causey, a heart attack patient, told the jury Murray saved his life. Causey said Murray is “the best doctor” he’s ever had. He also said Murray took great care in explaining everything he was doing. Causey, who also called Murray his best friend, raved about the treatment he received. Causey asserted that Dr. Murray would call his wife and would often apprise her of test results, and upcoming appointments.

“It’s because of Dr. Murray, the way he cares for you, the way he makes you feel.”
“There’s no way, he’s greedy. He doesn’t charge me my deductible, never has.”
“The reason I came here to help Dr. Murray is I know his love, his compassion, his feeling for his patients, every one of them and I just don’t think he did what he’s accused of doing.”

On cross the prosecutors pointed out that Murray’s treatment was done in a monitored environment with the help of a large staff. But the cross backfired when Causey shot back: “He’s the best doctor I’ve ever been to, And I just don’t think he did what he’s being accused of.”

2. Andrew Guest testified that Murray performed two different procedures on his heart in 2002, “That man sitting there is the best doctor I’ve ever seen.” Murray even called him on weekends to check up on him.

During cross-examination, lead prosecutor David Walgren asked Guest, “I don’t mean to be flip . . . but he never give you Propofol in your bedroom did he?” Guest rejoined: “I am alive today because of that man.”

3. Lunette Sampson, who survived three heart attacks, told the jury Murray saved her life, fixing another doctor’s botched operation. “I never had a more caring doctor.”

Walgren, on cross, contended that Murray was able to fix her heart because he had access to her medical records, and of course, Murray didn’t have any to give the ER doctors, who scrambled to save Michael Jackson’s life.

4. Dennis Hix testified Dr. Murray placed 13 stints in his heart for free. Murray also operated on his brother’s heart free of charge and that the accused man, both literally and figuratively, had snatched him from death’s grip, despite a previous consultation with another doctor who had advised he could not operate.

After reviewing Dennis Hix’s radiological films, a self-assured, confident Murray confirmed to the angina sufferer, “I can fix that,” and did, placing stents into blood vessels near the man’s heart and performing another stent fix for Hix four weeks later.

Hix told the jury that the initial work-up and surgery refusal by a previous doctor did not result in stenting because his occluded or blocked blood vessels were too small. So Dr. Murray had the hospital order smaller equipment to keep from “blowing out” his veins.

“He’s Not Greedy . . .”

What’s more, Hix said, “There’s no way . . . [Dr. Murray’s] greedy . . . and, I’ve sent patients to him, including my own brother who was uninsured.”

Hix, who said “insurance didn’t hardly pay for nuthin,” related how his health-coverage-lacking brother did not want to lose his house, but needed treatment and Dr. Murray advised he would arrange for there to be no charge for treatment.

While Hix’s brother Jerry was waiting to qualify for Medicare (which provides coverage at age 65), Hix quoted Dr. Murray, who said, “I will treat you for free until you turn 65.”

“I’m 66. I’ve gone to a lot of doctors, A LOT of doctors, and I’ve never had one who gave me the care he did.”
Murray never charged Hix beyond what his insurance would pay. “I had a type of insurance that don’t hardly pay for nothing, so he did it for me free.”

5. The unquestioned star of the character defense was 82-year-old Roby Mosley. She came on a mission to explain who Murray really was. Gray-haired, dressed in a red coat, carrying a cane, she was one tough old bird.  Mosley, an Acres Homes Community Board secretary, told jurors Dr. Murray couldn’t have been greedy because he opened up a clinic in one of Houston’s poorest neighborhoods in honor of his father. Mosley testified that a grieving Dr. Murray pledged to open a clinic to fill the void his father left in the disadvantaged area. Murray did open an Acres Homes office and alternated weeks with seeing patients at his main Houston office.

“If this man had been greedy, he never would have come to an area, a community of Acres Homes, 75% of them poor, on welfare and Social Security.”

“You didn’t see a sign in his office pay first. You saw the doctor first.”

If all this wasn’t enough, the jurors watched Murray who had tears flowing down his face as Mosley described how he selflessly treated patients who couldn’t afford his care. It doesn’t get any better than this for the defense. Not only did he rebut the greed accusation but proved he was a good and caring doctor and his own show of emotion matched that of the witnesses. The prosecution was unable to damage any of them on cross.

How important are these witnesses? The prosecution spent weeks demonizing him; the character witnesses in a couple of hours humanized him. The court will instruct the jury that character evidence is a defense to the charge and can result in a verdict of not guilty. Is this enough to overcome all the prosecution testimony? I don’t think so, but it painted a far more sympathetic picture of Murray and may make his defense more palatable to the jurors.

Here are the federal rules on character evidence:

Rule 404. Character Evidence Not Admissible To Prove Conduct; Exceptions; Other Crimes

(a) Character evidence generally.—Evidence of a person’s character or a trait of character is not admissible for the purpose of proving action in conformity therewith on a particular occasion, except:
(1) Character of accused.—Evidence of a pertinent trait of character offered by an accused, or by the prosecution to rebut the same, or if evidence of a trait of character of the alleged victim of the crime is offered by an accused and admitted under Rule 404(a)(2), evidence of the same trait of character of the accused offered by the prosecution;

Rule 405. Methods of Proving Character

(a) Reputation or opinion.—In all cases in which evidence of character or a trait of character of a person is admissible, proof may be made by testimony as to reputation or by testimony in the form of an opinion. On cross-examination, inquiry is allowable into relevant specific instances of conduct.
(b) Specific instances of conduct.—In cases in which character or a trait of character of a person is an essential element of a charge, claim, or defense, proof may also be made of specific instances of that person’s conduct.

We all want to think that our good deeds and honesty should come to our defense when we are in trouble. They can, but it must follow these fairly strict rules. Rule 404(a)(1) allows a defendant to offer his good character as substantive evidence that he did not commit the crime. His defense is that he has good character, and he acted consistent with this good character on this occasion. Unless it is a 405(b) case where character is an essential element, like in defamation, the character of a criminal defendant is not at issue at the outset of the case. But a defendant can inject character into the case through Rule 404(a)(1). The standard way is to call character witnesses to testify about his reputation in the community for a pertinent trait, or to elicit a witness’ opinion about the defendant for a pertinent trait. A pertinent trait is one that is relevant to the crime.

After direct testimony, the prosecution can cross examine the witness. The prosecutor can ask the witness whether the witness is aware of specific acts of the defendant which are inconsistent with the testimony the witness just gave. [See 405(a), last sentence.]  These questions are to impeach the character witness, and are not considered substantive evidence. The prosecution cross examination has some limits:

a. They must have a good faith basis that the acts actually occurred (they can’t just make things up).
b. The acts must be relevant to the character trait at issue.
c. The prosecution must have a good faith basis that the acts affected the defendant’s reputation in the community (or, if an “opinion” character witness, that the acts would reasonably affect a person’s opinion for the trait).
d. Then the prosecution can call negative character witnesses in its rebuttal case. The same rules for the defendant’s character witnesses apply, but the prosecution’s witnesses would give negative testimony about the pertinent trait.

The Federal Rules of Evidence specifically provide that at trial a defendant may adduce “evidence of a pertinent trait of character.” Fed. R. Evid. 404(a)(1). See United States v. Yarbrough, 527 F.3d at 1101-02 (citing Petersen v. United States, 268 F.2d 87, 88 (10th Cir. 1959) (tax evasion trial, defendant admitted underpayment but denied wrongful intent and sought to present three character witnesses, the trial court limited him to one character witness, which was error because: “The rule is well established that ‘a defendant may offer his good character to evidence the improbability of his doing the act charged . . . .  In a case such as this where the defendant admits understatement of income and defends solely on the lack of wilful intent, the character of the defendant is an important element. In the exercise of a sound judicial discretion a court may limit the number of witnesses permitted to testify to a single fact . . . . However, to restrict a defendant to one character witness is a harsh limitation in a case such as this where the sole defense is lack of wilful intent.”)); United States v. Angelini, 678 F.2d 380, 381 (1st Cir. 1982) (“Evidence that [the defendant] was a law-abiding person would tend to make it less likely that he would knowingly break the law.”).

Not all good character evidence of a defendant is pertinent and admissible under FRE 404(a)(1). For example United States v. Harris, 491 F.3d 440, 447 (D.C. Cir. 2007) (“it is familiar ground that while a criminal defendant can put character in issue, the evidence can concern only a ‘pertinent trait of character,’ and even then may be excluded if ‘its probative value is substantially out-weighed by the danger of unfair prejudice.’”).

The character trait has to be relevant to crime charged. Relevant character traits include: Law-abiding nature; peacefulness, when charged with a crime of violence; honesty, which relates to crimes of dishonesty; temperance, when drugs and alcohol involved; and generally, good moral character.

As this short discussion of the rules makes clear, Murray was able to go far beyond the contours of the rules. I think the prosecution made a mistake by not filing a motion in limine to limit the testimony and was asleep at the wheel while it was coming in. Of course, by then it was too late. It would be hard to interrupt these witnesses. All the testimony about being a good doctor, etc., seems to fall outside any pertinent character trait. But once again, in the heat of battle we see the rules bent by the failure of the opponent to raise a proper objection.