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Holding out

I hate it when my client, a 19-year-old kid who dropped out of high school in the 10th grade, is the smartest guy in the room.

So here's the situation with Deron.  One night back in July of 2010, some guy we'll call Jack was standing on his treelawn talking to a couple of buddies, when, he claims, Deron rode up on a bike, said to Jack, "Do we have a problem?" and promptly pulled out a gun.  Jack had his own, it turns out, and was quicker on the draw, getting off five shots.  Deron took off running, then, again according to Jack, turned and got off a couple of shots of his own.

So much for the notion that a well-armed society is a polite society, I suppose...  Deron got picked up a while later, and, since he was 17 at the time, wound up in juvenile court.  He was subject to a bindover, but the prosecution was willing to make him a deal:  two years in a youth camp.  He turned it down.

That's going to become a theme here.

So Deron got bound over to common pleas court, and that's where I enter the scene, stage left.  I get the discovery, and it's a pretty straight-up case.  John's got a concealed carry permit, which means he doesn't have a record.  He knows Deron from the neighborhood, so it's not a stranger identification.  Deron's facing a felonious assault charge with a three-year gun spec, so he's looking at a minimum of five years.  My first job was to visit Deron in the jail and see what he wanted to do.  I explained that we could go through Door A and fight the charges tooth and nail at trial, or we could check out what's behind Door B and see what kind of deal the prosecutor was willing to offer.

Scene 2 finds me at a pretrial, requesting the prosecutor to get his supervisor to allow a plea to attempted felonious assault, a third-degree felony, with a one-year firearm specification.  Scene 3 finds me sitting across from the same prosecutor two weeks later, and him telling me that his boss has okayed the deal.  Somewhat my surprise; I figured he'd come back with the felonious and a one-year spec or the attempted and a three-year spec, but wouldn't reduce both.  The judge agrees to give him the minimum 9-month sentence, plus the year for the gun.  He's already been in jail seven months, so he's only got do fourteen left to do.  Scene 4 ends with him happily pleading guilty and thanking me profusely for getting him such a great deal.

Well, no.  Scene 4 has him walking out of the holding cell and into the courtroom for the plea, then whispering to me that he won't take the deal.

This brings us to Act II.  There are some preliminary scenes here, mainly featuring me sitting in the visiting room at the jail, explaining in increasingly impatient tones to Deron why he's crazy to turn down the deal.  He's 19 years old, I tell him, and I remember, however dimly, back when I was in my early 20's, and how much fun I had, and how I wouldn't have had nearly as much fun if I'd spent the first half of my 20's in a jail cell with some guy named Bubba who referred to me as his girlfriend.  I told him all the horror stories, like the appeal I'd just finished where the client pled guilty to a third degree felony and would've gotten probation, but got upset with what the victim said at sentencing and asked to withdraw her plea, and then went to trial and got convicted and is doing thirteen years in prison.  Basically, I tell him this is at best a tossup:  if the jury believes the victim -- and I can't give them much reason not to -- Deron goes away.

All to no avail, so the curtain comes down on Act II on Wednesday with us scheduled for trial, and me wanting to try the case like I want to see how many teeth I can pull out of my mouth with a pair of pliers at one sitting.  The prosecutor had called me up the week before and told me that they had a whole lot of Deron's phone conversations from jail on tape, and I figured that might buy me some time -- I'd ask the judge for a continuance to review the tapes, and meanwhile maybe Deron would see the light.  Nope.  The judge says the prosecutor can't use the tapes because of the late disclosure, the bailiff calls up the jury, and Act III opens with the trial.  There are three prosecutors -- the guy who's handling the case, and a couple of young, attractive female attorneys sitting in.   I'm going to be doing the Charge of the Light Brigade, and there might be cannons to the right of me, but at least there's some eye candy to the left.

We get done with voir dire on Wednesday, and yesterday morning the first thing is Deron standing up and telling the judge he wants a new lawyer, because he thought a different one could get him a better deal.

The judge and I go back a ways, and he reads my blog, and he lays it on a bit thick, telling Deron that not only am I a great trial lawyer, but my knowledge of the law is so vast that other lawyers seek out my advice.  "And even judges, too, right, Mr. Bensing?"  Yeah, I think, that reminds me, I gotta get back to the office by three so I can take the weekly call from Scalia asking for my insights, rather than have him be sent to voicemail like the last few times.  Sure.  Of course, I could have showed up that morning wearing a gym suit and a drool bucket, and the judge wouldn't have replaced me in midtrial. 

Jack's a decent witness, but here's why the lawyer always has the advantage in cross-examination:  most witnesses are not accustomed to the mental combat that goes into that.  If you press, eventually they'll give.  John did.  The seventy foot distance he said he was from Deron became three hundred feet by the time I was done, and yes, there was only one street light on the whole block, and there was another guy who was with Deron, and although Jack wouldn't admit it outright, I at least created a possiblity that the jury would conclude that the other guy, not Deron, had fired the shots.  Or that the jury would conclude the state hadn't proved beyond a reasonable doubt that Deron had, which was all that I needed.

Then came the cops.  Or didn't.  Neither of the officers who'd responded to the scene showed up, and the detective, who did, looked at the report and told the prosecutor he had no recollection of the case whatsoever.  So the prosecutor sidled up to me and asked me if I my guy would take a plea if they dropped the gun spec.

Which he agreed to do, in a heartbeat, and we got it done right then before he could change his mind.  The judge put him on court-supervised release until the sentencing in a month, so Deron walked out of the jail later that afternoon.

Guess I showed him who was right, huh?

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