War Stories, Chapter 43
Time for another retro post. Every now and then, instead of providing insightful analysis, I regale my readers with an episode from my own experiences in what most observers have concluded is a thoroughly undistinguished legal career. This post, from January of 2008, recounts one of them.
If you happen to need advice on how to prepare a jury in voir dire for the fact that your client's a transvestite, I'm the go-to guy there.
I spent the last two days trying a crackpipe case involving a 46-year-old transvestite -- we'll call her Jamie -- with twenty-seven prior convictions, almost all of them for drugs. Check that, twenty-six prior convictions. She had twenty-seven prior cases, but on one of them, about seven years ago, she'd gone to trial and been acquitted. So she was figuring to catch lightning in a bottle again. I told her I'd talk to the judge about putting her on probation if she pled, but she was having none of it. She didn't have a crackpipe, she said, and she wasn't going to plead to anything.
By the way, when I say "transvestite," on those twenty-six priors, she went to prison seven times. On one of them, they sent her to the women's prison.
Like most lawyers, I use voir dire to condition jurors: to inculcate them in certain principles, like reasonable doubt and burden of proof, and to prepare them for certain facts that are going to come out during the trial which are particularly adverse to my client. Needless to say, this one presented some challenges in that regard. I'd suggested to the judge that my task might be easier if we used some background theme music during the voir dire -- my preferences would have been Aerosmith's Dude Looks Like a Lady or Lou Reed's Walk on the Wild Side -- but he nixed that.
It went well, for a while, anyway. My client was going to testify, so I did a bit of reverse psychology on self-incrimination, explaining her 5th Amendment rights to the jury, how she didn't have to testify and how the judge was going to instruct them that they couldn't take that into consideration, and getting the jurors to promise me that they wouldn't hold it against her... and then, "Well, Mrs. Smith, let me tell you right now, I'm going to promise you my client will take the stand. She wants to tell you her side of the story." That got them pretty charged up, but it was downhill after that. When I explained that, as a result of her taking the stand, it would come out that she had eleven felony convictions in the last ten years, and certainly they could promise me that they wouldn't hold that against her, there were several jurors who were giving me the "you're kidding, right?" looks. And when I said, "You're probably wondering why the judge referred to my client as a he and I'm referring to her as a she," several starting looking around for the hidden cameras, certain that Ashton Kutcher was going to pop out and tell them they'd just been punk'd.
The trial itself was a riot. The facts were pretty simple: the vice squad was on a prostitution detail, and according to the police, Jamie waved down one of the decoys, and offered to perform fellatio for ten dollars. When the takedown cars showed up, Jamie reached under her miniskirt and pulled an object out of the crotch of her panties, then got out of the car. The cop waiting outside the car asked her what was in her hand, and Jamie opened it and said, "Nothing." There was the clink of glass hitting concrete, and the cop shined her flashlight on the ground, and lo and behold, there was a crackpipe a foot or so away from Jamie.
Jamie's story corresponded to that, up to the part about the negotations over the sex act. But she steadfastly maintained that she had nothing to do with a crack pipe, having been clean of drugs since 2005. Her denials reached a crescendo when she learned forward in the witness chair, locked her eyes on the jury, and declared, "I haven't had a stem in my mouth in two years." I am not making this up. I looked up at the judge, who was just about falling out of his chair. The other high point of the trial occurred during her cross-examination, when the prosecutor referred to a "hand job." In her best drag queen voice, Jamie patiently corrected him: "It's a head job, not a hand job."
After that, it was instructions and closing, and then back to wait for the verdict, which, the judge opined, shouldn't be more than five minutes in the offing. Given the nature of the case, the conversation among the lawyers, the judge, and the cops quickly degenerated to the level of the locker-room. The judge suggested that Jamie's distinctions between hand jobs and head jobs should prove a useful subject of discussion for the recently-married prosecutor and his wife at dinner that night. The other officers gave the decoy cop a good ribbing; when Jamie had first entered his vehicle, she'd given him a kiss on the cheek, and the other officers swore he didn't wash the spot for two weeks. I chimed in by telling him that maybe his fellow officers wouldn't have given him such a hard time if he hadn't sent flowers to my client when she was in jail.
I'd set the over-under at forty-five minutes for a verdict, but it took almost an hour and half. We trudged back into the courtroom for the inevitable. And the inevitable occurred, as it inevitably does; Jamie didn't even flinch when the judge said "guilty."
The judge referred Jamie for a presentence report, and didn't remand her, but warned her that if she didn't show up for sentencing she'd get the maximum. The judge is a good guy, so I'm not sure what he's going to do. While we were waiting for the verdict, he mentioned that if he put her on paper, she'd just be back with another case in another month or so. Of course, if he ships her, the taxpayers of Ohio get to pay a couple grand a month to defer that next case for the length of her prison stay.
On the elevator ride down to the probation department, Jamie asked me what I thought was going to happen when we returned for the sentencing. As a lawyer, I'm always relieved when the rare occasion occurs that a client asks me a question of which I'm absolutely sure of the answer. As I was here. I looked at Jamie and said, "Nothing that hasn't happened to you before."
As I wrote a month later, Jamie got paper in my case. She picked up two new drug cases after that. The judge gave her probation in each of those, too.