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Smith had reason to be unsettled. Haggag Mohsin was represented by Teresa Caffese, a petite, feisty pit bull of a public defender, ranked among the top 75 women litigators in the state last year by the Daily Journal, a legal newspaper.
During her cross-examination of the prosecution's star witness, Caffese seized on inconsistencies in Smith's story. At her interview with the police inspector the day after the shooting, Smith had said that Mohsin had "tap[ped] on my window, and pulled a gun out, and shot me." But during direct examination at the trial she said he'd shot from across the street on the corner.
Caffese grilled her on the change in her story. "I know I said that he tapped on the window, but I do not recall that," Smith said. Caffese asked when Smith had had that realization; she responded that after she got home from the hospital, she was having "nightmares ... seeing him, and he was on the corner."
Caffese attacked Smith's credibility, delving into her extensive criminal record. After Smith denied ever biting a Walgreens clerk or grabbing another by the neck while trying to get away in two separate shoplifting incidents, Caffese hauled in store employees to testify to exactly that. When asked about her most recent arrest this year for allegedly jogging away with $3,500 worth of rings from a jewelry vendor who testified that Smith later phoned back and threatened to have her kids beat the woman up: "I was falsely accused." By the end of the second day of Caffese's cross-examination, Smith asked for a break, wiping tears from her eyes with a tissue, and swiveled around in her chair to face the back wall.
Scott Stratman, the attorney who will represent the Mohsins in the pending civil suit, complimented Caffese in the courthouse cafeteria afterward: "I thought you did what you set out to do."
Smith wasn't the only person Caffese made look bad during the trial. In cross-examining the investigators, she exposed haphazard police work. After the shooting, the police inspector assigned to the case, Richard Daniele, interviewed Mohsin for just 17 minutes, and Smith and Hatch separately for a total of 27 minutes. No other witnesses were interviewed before police handed the case to the DA for prosecution just 24 hours later. Officers who testified conceded that they had never thoroughly searched the trunk of Smith's car or the women's purses to see whether they had, as Mohsin claimed, stolen clothing from Pop Ya Collar. Smith's car was released to her without being processed for fingerprints or measurements of the bullet holes to analyze the path of the bullet.
Caffese pressed Inspector Daniele in follow-up questions about his rush to close the case rather than corroborate Mohsin's statements: You were busy with other cases, so you couldn't follow up with whether he was telling you the truth or not? "Correct," he replied.
When it came time for the defense to present its case, Caffese called various witnesses to vouch for Mohsin's character. Teachers from McClymonds High School in Oakland testified that Mohsin was part of an Arab minority in a student body that was more than 80 percent African American, and helped start a club after 9/11 to promote understanding between races. "I was repeatedly impressed by his restraint" in not lashing out at "towelhead" and "A-rab" remarks, said Alexander Briscoe, then a dropout prevention counselor at the school.
When Mohsin took the stand in a black pinstripe suit and burgundy shirt, his usually confident voice shrank to a mumble; the court reporter often had to ask him to speak up. He relayed the details of his past — how he had worked since high school to support himself, how he'd previously only fired an old-fashioned rifle at his wedding in Yemen, as per tradition. Loftus asked Mohsin whether he remembered telling Inspector Daniele that what he did was wrong. Mohsin answered that he did. "Anytime someone's injured, that's wrong," he said, adding emphatically, "I wasn't intending to shoot anyone," looking Loftus directly in the eye. Mohsin admitted that in the two times he peeked out the door before leaving the store, the suspected shoplifters had moved farther down the sidewalk. He had taken time to lock the doors, turning his back on the men who had allegedly threatened him.
And then there was the fact that he hadn't merely shown the advancing men the gun to scare them away, but had fired it. Did they see his gun? Mohsin answered that he didn't know.
Loftus also pointed out a glaring hole in Mohsin's testimony: He had never told officers that one of the two men who'd entered the store with the women had threatened to burn it down after the earlier robbery. Why hadn't he told Daniele that on the day of the shooting? "I was answering everything they asked me," he said. "I didn't know that was the last statement I was gonna make."
Karlene Navarro, Caffese's co-counsel on the case, later offered another explanation. "Haggag is very direct and literal," she says. "He'll answer only what you ask and that's it. It's a little frustrating."
In her closing statements, Loftus argued that Smith and the police were not the ones on trial. She made a point of saying that prosecutors hadn't charged Mohsin with attempted murder, but with shooting into an occupied vehicle, a felony, with an additional enhancement of personally using a firearm to cause great bodily injury. Mohsin later said that moment scared him the most, since the jury doesn't hear the potential sentence and Loftus seemed to downplay it as a "petty charge." Set by a 1997 state legislature bill putting stricter mandatory minimum sentencing on firearm crimes, the potential sentence for the enhancement is 25 years to life. Caffese argued that the charge was "politically driven," saying, "I don't know if Ms. Loftus wants to run for DA and votes in the Bayview are more important than justice."
