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To wit: GUN/TOY GUN

My client "Sam" sure sounded like a badass:  four counts of aggravated robbery, each with one- and three-year gun specs, and four counts of kidnapping.  According to the police report that the prosecutor was reading me, Sam tried to hold up four people in an apartment at gunpoint.

Then the prosecutor got to the part where the "gun" Sam had was a plastic toy one.

"Guess somebody didn't read this very closely in the grand jury room," he muttered.  

Several months go by, for Sam's psychiatric evaluation and his transfer to a judge on the mental health docket.  Different prosecutor, nice young kid named Steve.  I'm thinking that this is really a robbery by force, a third degree felony.  He offers me a plea to a second degree felony; otherwise they'll go back and reindict, and no deals.  See how that goes, I tell him.

So the grand jury reindicts Sam -- on twenty counts.  The four counts of kidnapping, one for each of the victims (one of whom was asleep in another room the entire time), plus sixteen counts of robbery, under four different theories:  serious physical harm, physical harm, force, and four counts alleging that Sam "had a deadly weapon, to wit:  a GUN and/or a TOY GUN, on or about his person or under his control."  Steve isn't pleased; "This isn't what I told them to do," he says at the next pretrial.  Then again, he's just a foot soldier; he didn't have much more control over what happened in the grand jury than I did.

The day before trial, he says that his supervisor has okayed a plea to two third degree felonies, a robbery and a kidnapping.  I visit Sam in the jail, and he's having none of it.  I press, but not too hard; after you do this for a while, you get a good sense of when a client's going to bend and when he's not.  And you've got to be real careful here.  Most defendants believe in the old saying that you get what you pay for:  if they're not paying for their representation, they think there's a good chance you're working for the other side.  Trying to ram a plea deal down a client's throat is a good way to reinforce that belief.

What I do spend a lot of time on is trying to persuade Sam to try the case to the judge, not a jury.  The judge has his quirks, but nobody's going to describe him as prosecutor-friendly.  And he's been around for a while.  You throw a twenty-count indictment at a jury, and they'll be impressed.  You throw a twenty-count indictment for something like this at a judge in this county, and he's likely to say, "Geez, you guys overindict much?"

Sam is steadfast:  he wants a jury.  Until about an hour into voir dire the next day, when he leans over and whispers, "I think I'd be better off with the judge."

Well, no kidding.  I ask for a sidebar with the judge, he sends the jury out, and we try to figure if Sam can waive at this point.  I finally convince everyone that he can, and the judge says, "But what do I tell the jury?"

"Go back and tell 'em, 'Boy, did you people ever scare the hell out of that guy!" 

So off we go.  Sam claims what really happened is that he was over there smoking crack with the other people, got paranoid, and grabbed the crack and tried to run out of the apartment with it.  That theory lasts about two minutes into the testimony of the first witness, a guy named Tyler:  he was staying over that night with his 72-year-old mother and a couple of other friends because they were all going to his wife's funeral the next day. 

Still, I've got an angle.  While I would have had to put Sam on the stand to let the jury know he was psychotic, which would also let them in on his three prior robbery convictions, the judge had read the psych reports, so he already knows that.  I try to get across in the questioning that Sam just got goofy and was attempting to get out the apartment.  Tyler testifies that Sam stood up, showed the butt of the (plastic) gun, said "You know what this is," and charged him.  I get him to acknowledge that he was between Sam and the door, and that Sam made no other demands for money or anything else consistent with robbery.  Tyler was a pretty healthy-looking guy, and I also want to point out that he got the best of the encounter.  I ask him if he got any medical treatment, and he shrugs and says, "Yeah, for my hands."  "So the defendant kept hitting you in the fists with his face, huh?"  Even he laughs.

By the time all the evidence is in, the judge has 29'd all but four counts.  From the judge's questioning, Steve knows that his case hinges on convincing the judge that the phrase, "You know what this is" is the contemporary street version for "this is a stickup."  He's plugged that phrase into Lexis, and come up with a couple of cases.  I haven't seen them, but I take a gamble and argue that they probably involve cases where there's some other evidence of robbery.  Good gamble.  The judge reads the first one, which involves the defendant not only using the phrase, but rifling the victim's pockets and taking money and his wallet.

We come back a day later for the verdict, and it's a not guilty.  Steve's bummed by the result, and I feel bad for him.  There wasn't a thing that he could have or should have done differently:  not a question he should've asked, a witness he should've called, an argument he should've made.

I'm a big believer in the theory that bullshit arguments only hurt you, by detracting from your credibility.  That goes for indictments, too.  If this judge had been presented with a simple, streamlined case of third degree robbery, he might've bought it.  There's a consensus among judges, defense attorneys, and even prosecutors that this prosecutor's office overindicts, and takes cases to trial that it shouldn't.  Sam's case was just more proof of that.

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