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Good days, bad days

I had a good morning on Wednesday, which turned into a bad morning, but was better than the bad two weeks before that, although there were some good days in those two weeks, too.

Wednesday's morning started with a visit with my client Stan.  I got assigned his case two days before:  felonious assault, with a pregnant victim specification.  I get the State's discovery, and the police report says the victim, Stan's ex-girlfriend, was talking with a friend when Stan ran up, brandishing a silver knife, and holding it against her throat while telling her he was going to kill her because she was pregnant with another man's child.

Then he left, with her unharmed.

There's also a statement by her, in which the silver knife has now become a box-cutter, and the friend has become her brother-in-law.  On the state's witness list, the only non-police officer is the alleged victim, so friend/brother-in-law didn't make the cut.

Stan's being held on a $100,000 bond, and when I visit him on Wednesday morning, he tells me that the ex-girlfriend is a crack addict who's constantly pestering him for money.  I check her record, and sure enough, she's got twelve prior felonies.  At the pretrial an hour later, I lay this all out for Marty, the prosecutor, and tell him he needs to stop at Petsmart that night to buy a leash for the case.  Marty's a good guy; he pretends to like the line, and tells me he'll bring the victim in and see what she says; if it's fishy, he'll get the case dismissed.

Then I go to my next pretrial, and wind up in a three-way gunfight from The Good, the Bad, and the Ugly.  Cornelius is charged with beating the crap out of a guy and stealing his money, but they don't have a good case.  Cornelius isn't a good guy, though, either, with about 15 prior convictions, including one for aggravated burglary, for which he was sentenced to three years in 2005.    So here's the situation.  The prosecutor thinks I can get a deal for a 4th degree felony, but won't ask her supervisor unless my client commits to taking it.  Cornelius won't commit to taking it unless he knows what the judge is going to do at sentencing.  And the judge won't tell us what she's going to do at sentencing until the prosecutor makes the offer of the 4th degree.  I was going to suggest we all do a rock/papers/scissors contest to work it out, but instead we're going to come back on Friday and see if something magic happens in the meantime.

It didn't the previous two weeks, which I spent in trial in a murder case for a client we'll call Anthony, accused of killing a victim we'll call Shelly.  Back in June of 2002, Shelly's mother came to her house and found Shelly lying dead on the living room floor; she'd been stabbed three times in the chest, and had bled to death.  Later that evening, Anthony went to the police and informed them that he'd been there the night before.  He'd known Shelly for some time, and that night they'd done some weed, and she asked him to go out and get some more.  When he came back a couple of hours later, he found her lying there.  He picked her up and asked her who'd done this, he told the police, but she took her last breath before she could tell him.  He paced around for thirty minutes, trying to figure out what to do, then wiped off the door knobs and left, tossing his blood-stained shirt into a dumpster before going home to his girlfriend.  He told her and another friend the whole thing the next day, and decided to go the police.

They held him for a couple days, then released him.  The Feds gave Cleveland some money to open a cold-case squad in 2007, and in 2010 they got a DNA sample from Anthony and ran it against some fingernail scrapings that had been retrieved from Shelly; it came back positive.  Antoine got indicted, and Dave, another lawyer from my office, and I spent the middle part of the past month trying it.

And man, did we try the hell out of that case.  I don't do a whole lot of trial work -- maybe two or three a year -- but Dave does a lot more, and he's very, very good:  he was given the lifetime achievement award by the local criminal bar a couple years back.  There's a number of things you need to be a good trial attorney -- good speaking skills, being able to think on your feet, a good understanding of the rules of evidence -- but there's no substitute for experience:  learning how to judge witnesses and knowing just how far to take them.  When we were prepping for the cross-exam of the detective, for example, I suggested pressing him on a particular issue.  "Nah, you don't try to hit a home run with the homicide cops," Dave said, "You just make your points and sit down before they bury you."

I've often maintained that defense attorneys don't win cases by putting evidence on; they win by trashing the evidence, or keeping evidence out.  That latter one was key here.  Somebody had to have killed Shelley.  Our nominee was the father of her two-year-old child.  Shelley had been on the phone that night with her good friend Lora, and told Lora that the baby's daddy was coming over; in fact, she ended the phone call by telling Lora that the guy had just pulled up.  Our big boost came when they took a paternity test of Anthony after he was indicted and determined there was no way he was the baby's father.  Of course, that didn't preclude the possibility that Shelly thought Anthony was the father of her child, and there was some key evidence on that point:  Lora said as much in her statement, and Anthony had told the police that Shelly didn't know for sure who the father was.  We kept all that out.  And we did a fairly good job of muting the fingernail DNA evidence.  On cross I asked the analyst some questions about how DNA can be found in skin cells, and how easily those cells are shed.  I then walked up to her, had her hold out her hand, and ran my fingernails lightly over the back.  "Could that be enough to pick up some of your skin cells?"  Yes, she agreed.  "So if I walked out of the courtroom and wound up dead, they'd find your DNA underneath my fingernails, right?"

Good theatre, and the closing argument went well, too, with us precisely outlining the faults in the state's case and all the reasonable doubts lurking therein.  The jury was mightily impressed, too; they took a whole three hours before coming back with a conviction.

And it didn't surprise me in the least.  It was funny; I spent the entire case game-planning the strategies, coming up with ways to attack each little point, explanations for every aspect of the case, but by the time the closing arguments were done and we were walking out of the courtroom, I knew it was over.  Because stripped of all those niggling little points and counterpoints, it came down to this:  Anthony's story was physically impossible.  All the blood was in the kitchen, indicating Shelly had been killed in that room and then dragged into the living room.  Plus we had a guy who not only didn't call the police, but wiped his fingerprints off both doors, not just the one he claimed he came in through, and then ran off, threw his blood-stained shirt into a dumpster, and got rid of the van he was driving that night.  (The police never found it.)  And, of course, the ultimate irony:  if Anthony hadn't made the statement, they wouldn't have had anything on him.  Without that, they wouldn't have even been able to put him on the scene.

So a bit of a lesson:  sometimes you can get so caught up in the intricate details that you lose sight of the big picture.  Reminded me of what one judge told me about another one time:  "Yeah, Ben, he saw a lot of trees in his career.  Never saw a forest, but he sure saw a lot of trees."

Those forests will get you every time.


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