Taking The Stand In Your Own Defense Is Unusual But It Happened This Week On Cape Cod – wgbh.org

This week, a Cape Cod jury found Thomas Latanowich guilty of murder for killing Yarmouth police sergeant Sean Gannon in 2018. Daniel Medwed, GBH News legal analyst and Northeastern law professor, joined Marilyn Schairer on Morning Edition to take a deep dive on the unusual trial. This transcript has been edited for clarity and length.

Schairer: Lets get a quick review of the events that led to the criminal charges against Latanowich.

Medwed: Back on April 12, 2018, Yarmouth police officers executed an arrest warrant for Latanowich, on a charge of violating the terms of his probation violation at a house in Marstons Mills on the Cape. Along with other officers, Gannon went to the scene with his K-9 Nero to assist with apprehending Latanowich. Things soon went south. The police scoured the house, with no sign of the suspect, until they discovered a section of the attic covered by insulation that they hadnt checked before. Gannon pulled the insulation down and was shot in the forehead and killed by Latanowich. His dog Nero was also shot but fortunately recovered.

That incident triggered a raft of criminal charges against Latanowich, and the key issue at trial was whether he committed first-degree murder, which requires the jury to find that the defendant acted with premeditation and deliberation, or second-degree murder that he simply acted intentionally, yes, but not in premediated fashion.

Schairer: The defense took a controversial approach. Latanowich testified in his own defense. How unusual is it for a criminal defendant to testify and why?

Medwed: Its extremely unusual, for a range of reasons. First of all, prosecutors carry the burden of proof in a criminal case they have to prove guilt beyond a reasonable doubt. The defendant has a constitutional right not to testify under the Fifth Amendment and the defense isnt required to put on a case at all.

When I was a young lawyer, I was taught that the defense can sit on its hands and do nothing all trial, and still insist during closing argument that the prosecution didnt carry its burden. By putting the defendant on the stand, the defense runs the risk of making the jury think it bears the burden of proving innocence, even though thats not the case.

Second, by testifying, a defendant exposes himself to whats called impeachment. The prosecutor can introduce prior inconsistent statements or other evidence to suggest that the defendant is lying on the stand. Most importantly, the defendant can be impeached with prior convictions the rationale is that your criminal record is somehow relevant to your credibility as a witness because breaking the law is a form of dishonesty that jurors should know about. Thats the theory, and one Im skeptical of because it discourages many defendants from testifying. Finally, given that jurors often want to hear the defendants side of the story and are puzzled by the choice not to take the stand, judges routinely instruct the jury that they may not draw an adverse inference any negative opinion from the defendants assertion of his Fifth Amendment right.

WATCH: Daniel Medwed on defendants taking the stand

Schairer: Daniel, you just mentioned how unusual it is for a criminal defendant to waive the Fifth Amendment privilege against self-incrimination and testify. Why do you think Latanowich took the stand in his case?

Medwed: Its hard to say, but its important to underscore that the decision to testify doesnt belong to the lawyer, but the defendant. The defense lawyers job is to offer advice, to convey the pros and cons, but its ultimately up to the defendant to make that call. So, my hunch is that Latanowich made the call.

Schairer: It didnt work out too well for him, did it?

Medwed: No, it didnt. He was convicted of second-degree murder as well as six other criminal charges and the judge imposed a sentence that, in the aggregate, means he is not even eligible for parole for 35 years. That said, the jury acquitted [him] of the most serious charge, first-degree murder, and I guess its possible that his testimony helped him in that regard because he told the jury that he mistook Gannon for someone, a civilian, who had shot at him before. Juror exit interviews, I suppose, could shed light on that issue.

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Taking The Stand In Your Own Defense Is Unusual But It Happened This Week On Cape Cod - wgbh.org