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One in the L column

They don't call it an adversarial system of justice for nothing.  If you're going to go to trial, you need to have confidence in your case; juries can smell doubt.  The problem, though, is that if you're not careful you can develop more confidence than is warranted.

In this county, if you're assigned to represent a defendant and he picks up a new case while the initial case is still pending, you're automatically assigned to the new case.  We call that the gift that keeps on giving; I'd guess that happens in 10% of my cases.  It happened to Larry.  He'd gotten into a fight with his girlfriend and her father and uncle, breaking the latter's nose.  That was no big deal -- felonious assault  and two misdemeanor counts -- but the day after another fight with his girlfriend, someone had driven by her family's house fired about half a dozen shots into it.  The family fingered Larry for that, so now he faced four counts of felonious assault and four of discharging a firearm into a habitation, all with one-, three-, and five-year gun specs, the latter two of which don't merge.  The upshot was that Larry was looking at a minimum mandatory ten years on each charge.

The case wasn't going to get worked out.   The family wanted at least eight years, and Larry was so dumb he could have gotten hit by a parked car:  when I explained his predicament and the possibility of a plea bargain, he told me that he'd be willing to plead to a misdemeanor.  Still, the case wasn't that bad, I thought.  The only identification was from the brother, who claimed that Larry was in the back seat of one of the two cars involved in the driveby, but when the 911 operator asked which car that was, the father responded, "We couldn't tell, it happened so fast."  Would've been better if the brother had said that, but still.  The girlfriend claimed Larry had called her up afterwards and left a voicemail on her cellphone saying he did it, but there was no voicemail, and she'd written a bunch of love letters to him in jail, hardly consistent with the claim that he'd admitted shooting up her house and almost killing her family.  And I got the police dispatch tapes, which showed that there were two other driveby shootings in the same neighborhood at about the same time.  So off to trial we went.

It turns out I had co-counsel; some guy was looking for trial experience so he could get on the assigned counsel list, and asked to sit second-chair.  He was very impressed with my voir dire -- then again, considering that hadn't had the two trials necessary to get on the list, what the hell did he know? -- and I thought it went well, too.  Identification was going to be a big issue in the case and I was going to keep Larry off the stand if I had to use wild horses, so I spent time with the jury getting them to give me reasons why somebody might think they saw something when they didn't, or why somebody might not want to take the stand even if they weren't guilty.  I picked that trick up from a judge's voir dire, and it's effective.

The cross-examination of the first cop went well, too.  He was the guy from SIU, and he'd taken pictures and collected the shell casings.  I asked him about how they can do DNA tests on casings, and he acknowledged they hadn't done that.  Then I asked him to indicate to the jury which of the 34 exhibits he'd gone through showed that Larry had anything to do with this.  The answer, of course, was none.  Good theater.

From there, though, it was pretty much downhill.  The brother was solid in his identification, and came across as thoroughly frightened by the experience; he clearly didn't subscribe to Winston Churchill's observation that there is nothing more exhilarating than to be shot at without result.  The girlfriend disproved the theory that opposites attract; she might have been dumber than Larry.  The prosecutor had introduced her cell phone records to show the times Larry called her the day of the shooting, but didn't realize that the records used military time:  when he had her testifying about receiving calls at 8:15, right after the shooting (it took place in the early evening), the records were actually indicating calls for that morning.  When I pointed that out to her, she looked at me quizzically and said, "But what time is it in Cleveland?"  The bigger problem was that she came up with a reason for continuing to communicate with Larry:  he'd gotten her pregnant, and after the shooting she'd delivered triplets.

I see a bright future for those kids.

The prosecutor closed his case without calling the investigating detective, who'd sat through the whole trial.  The reason was simple:  the detective hadn't done squat.  He'd finally gotten around to taking statements about two weeks after the incident, but took them from the girlfriend (who wasn't there) and the mother (who hadn't seen anything).  So I called him as my witness, simply to go through that, and to play the dispatch tapes indicating there'd been other shootings in the area that night. 

My "co-counsel" thought we were losing after the state's case, but that the examination of the detective, and my closing, had pulled us back to even.  Larry was much more pessimistic, asking me about four times during the trial, "We're losing, aren't we?" and at one point offering to plead out to a three-year sentence.  That offer came during the prosecutor's closing.  A bit late...

When I got a call just two hours later that the jury had come to a verdict, I figured it was a sure winner.  After all, the jury couldn't split the baby:   they had to find Larry guilty or not guilty of everything.  Finding him guilty would have required them to sign no fewer than thirty-two verdict forms:  one for each of the offenses, plus three more for each of the three gun specs.  No way they would have had time to deliberate and do all that.

Way.  I spent the next five minutes listening to the judge try to figure out different ways of intoning the word "guilty" thirty-two times.

There's a saying among lawyers that the best argument you make is the one on the way back to your office.  There's a lot that can happen in even a short trial, and it's customary to engage in lengthy post-mortems -- "what if I'd asked this question?" "what if I'd argued this?"  The problem was, in this case I couldn't think of anything significant that I would have done differently.  Which brings to mind one of my favorite scenes from the TV show M*A*S*H, where Colonel Stewart calls up an artillery commander, who turns out to have been a classmate at West Point, to tell him to stop inadvertently shelling his own men.  Stewart talks to the guy for a few minutes, hangs up the phone, and says wearily, "Man finishes 376th out of a class of 384, and he tells you he'll do his best."  My best just wasn't very good that day.  Or maybe the case was much worse than I thought it was.

In any event, it goes to prove one of my other observations:  trial or appellate law isn't for those will self-esteem issues.  Because every now and then -- much more frequently in the latter than the former -- you're going to get your butt kicked.

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