The Daily Moth

As a former prosecutor in the Manhattan District Attorney’s Office for nearly eight years, Michael Schwartz was called on by the Daily Moth, an Internet-based news agency for the Deaf community, to explain the nuances of a murder case against a Deaf defendant. Schwartz answered questions about the criminal law process, including bail and the preliminary hearing, and illuminated the challenges facing both the defense counsel and the prosecutor and their possible strategies in dealing with these challenges.

[Transcript]

MICHAEL SCHWARTZ:

Hello, my name is Michael Schwartz. I am a professor of law at Syracuse University’s College of Law located in Syracuse, New York!

ALEX:

I wanted to ask you for your expertise and assessment of Mavrick Fisher’s murder case. Lake County’s police department and the District Attorney (DA) has already accused Fisher of murder of another deaf man, Grant Whittaker, and there were many comments that reflected the seriousness of the circumstances that surround Mavrick. Just this past Monday, Mavrick appeared at his arraignment hearing which was his second appearance after his first one was put on hold. Mavrick has pleaded not guilty and completely denies all the additional charges that have been levied upon him. What does it mean now for Mavrick’s defense since he has pleaded not guilty?

MICHAEL:

Okay, by way of background, I’m a former Assistant District Attorney (ADA) myself. I’ve been with a New York County DA’s office in Manhattan, New York for 8 years now. I was in the Appeals Bureau so I have developed knowledge of criminal law. So, I do hope that I’m qualified to answer these questions!

ALEX:

Of course!

MICHAEL:

So, um, the significance of pleading not guilty is simply that the defendant and his attorneys have decided to challenge the prosecutor’s case. It’s their right to do so under our current laws. They have the right to say to the state, “come on, try it and prove your case beyond a reasonable doubt.”

Now, having said that, it is possible that now the lawyers are intending to negotiate for a guilty plea later on. They may be doing this or maybe they’re going to prepare for the trial. So, the significance is simple that he, the defendant, is exercising his right to demand that the state proves his guilt beyond reasonable doubt.

This appears to be a strong case against Mavrick. If he goes on and challenges the state to proceed with the trial, with eyewitness testimonies, motions and et cetera. This makes the state have to work harder to find Mavrick guilty. Then the penalty would be a lot more severe than if he is willing to plead guilty right away or sooner. If you plead guilty then you can negotiate down your sentence. These lawyers are doing a lot of work interviewing the clients, and gathering evidence from the prosecutors. They’re making strategic decisions on whether or not they want to proceed to trial, or because Mavrick has already told others that he has committed these crimes. That’s going to be hard to throw out that evidence and the other thing is the lawyers will review all the evidence in order to try to knock out certain parts of the evidence. They might ask the court, in the preliminary hearing, which I understand has been set for October 23?

ALEX:

October 23, yes.

MICHAEL:

A preliminary hearing is simply an opportunity for the defense to ask, perhaps, to eliminate or reduce the charges against the client? They might ask for a psychiatric evaluation. They might ask to move the case out of the county because they might be getting a lot of publicity. They feel they can’t get a fair trial so they might ask for the trial proceedings to be moved to another county. It is kind of like a trial before a trial. That’s the preliminary hearing where the prosecutor has to “show their hands” by presenting the evidence they have against the defendant. This is so that the judge will know that the prosecutor is not making up a case, that there is a solid case even if it is circumstantial or whatever. It is an opportunity for the defense to see what the prosecution has on their client. Some preliminary hearings can be very brief! Some of them can last 1, 2 or 3 hours long so it depends.

ALEX:

You mentioned that they might ask for a psychiatric evaluation. What did you mean?

MICHAEL:

I mean that they might plead not guilty by reason of insanity. Maybe there’s some evidence that Mavrick “freaked out” or he suffered some kind of a mental disease. If there is some evidence found then they could call in a doctor then it becomes a battle of medical opinions where the prosecution may attempt to prove that Mavrick knew what he was doing. They will say that you cannot excuse his behavior based on his knowledge of what is right and wrong. The prosecution will try to prove this while the defense’s experts will state that they’ve examined, interviewed and found that he has some kind of a mental disease.

I do not know if that is what will happen here, but it is one possibility.

ALEX:

What do you imagine that the DA’s strategy will be moving forward?

MICHAEL:

Police reports, they will gather all the documents from the investigation and turn them over to the defense. In New York, it’s called a DD-5. Police will interview anyone who might’ve seen something before, during and after the crime. Police will investigate the crime scene where the body was found. Was he murdered and was the body left there? If he was murdered somewhere else then did someone else see what happened before, during or after the crime? They could interview potential eyewitnesses or canvass the area asking people if they heard anything, saw anything “on the night of -insert date here-“. Then they give all the documents from the investigation to the District Attorney (DA). The prosecutors will then review the documents and plan for the trial. They could put on police officers on the stand and put on eyewitnesses who saw something before, during or after the crime. They’ll bring up circumstantial evidence as well. Maybe they can produce the rock that killed Grant, the deaf victim. The defense might make a motion to eliminate certain eyewitnesses. The prosecution must prepare for these kinds of motions. The trial might move to dismiss the charges based on lack of evidence. I don’t know if that will happen, but it is possible though! So, it’s a lot of work for both the prosecution and defendant to prepare. Maybe the prosecution will persuade the defense to negotiate in order to save money, to save time, to save them the trouble of bringing in witnesses. Like in a sexual assault case, forcing a young victim who is a minor to endure the strains of trial can be very traumatic for this child. This creates more pressure to negotiate a plea to avoid further trauma. Here, with this murder case, I think if he pleads not guilty, and is not willing to change his plea, then the prosecution will have to pursue harsher, maximum amount of penalty possible.

ALEX:

Can Mavrick and his defense team change their plea?

MICHAEL:

Yes.

ALEX:

When’s the deadline before Mavrick is unable to do so?

MICHAEL:

There are no deadlines for this. However, I’m not knowledgeable about California’s rules, but you can change your plea. Either it is up to or during the trial, they can plead guilty often because they see all the evidence that the prosecution has brought up in trial as well as witnesses, detectives, police officers and others. Before, during and after the trial they often give up after sufficient evidence is found. Plus they, at times, will flee! That’s a sign of guilt. The prosecution will bring it up that there was an attempt to flee. So, yes, you can change your plea anytime. I wouldn’t be surprised given the strength of this case that the defense attorneys are now under negotiations. If the negotiations fail, that cannot be used against the defendant in trial. They cannot do this against the defendant.

ALEX:

I think that covers everything and I’m really appreciative for your time in explaining and helping us understand more clearly about the possible circumstances ahead.

Thank you!

MICHAEL:

My pleasure!