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The fourth lawyer

There are difficult clients, and there are difficult clients.  Here's what you need to know about Daryl Whittaker, and no, of course it's not his real name:

    • I was the fourth lawyer on his rape case, and the fifth on his felonious assault case.

That's all you need to know.  

Oh, sure, there's some icing on the cake:  he'd sued two of his previous lawyers, along with the judge, the prosecutor's office, and CSEA.  (Don't even ask about how CSEA figures into this.)  There's the disciplinary complaint against the judge.  There's the fact that the case has been pending for eleven months.

But, to horribly mix food metaphors, this is all gravy.  I was the fourth lawyer on the case.

I have a general rule:  I will not be the third lawyer on a case.  Hey, you didn't get along with a lawyer, it happens.  You don't get along with two lawyers, I'm at the stage of my life and career where I don't need to experiment further on whether the problem was you or the lawyers.

But Daryl specifically asked for me.  So I went over there to talk to him before I agreed to take the case, and he was all smiles and rainbows, telling me how he'd heard I was a really good lawyer and just the one he needed.

So despite a sea of red flags waving in the breeze, my ego -- a most formidable force -- said, "Hey, he wants you!  Take it!"

And so I did.

We fell out of love on the second date.   He'd laid out his arguments in the motions he'd demanded his previous attorneys file:  the police report was faked, and his DNA had been taken illegally.  That's all he wanted to talk about.

So fast forward about seven months to last Saturday.  All that stuff had been denied by the judge, and we were trying to case on Tuesday, no ifs, ands, or buts.

You never really know how good or bad a case is until you prepare it for trial.  Sure, you'll read the discovery, the police reports, the witness statements, and you'll certainly pick out the big things.  But it's not until you start reading that stuff and planning out your cross-examination of the witnesses that you really put it all together.

The State's case was terrible.

What the victim told the police in 2015, when Daryl's DNA popped up as a hit on CODIS, and what she told the police in 1996 was night and day.  Any reasonably competent defense attorney would be able to destroy her on cross-examination.

And that's before we get to her five prior felony drug convictions.  I mean, the five within the ten-year window of EvidR 609(B).  There were others before that.

So, it's Saturday afternoon, and I'm all done with the outline of her cross, and I'm really feeling good about all this.  And there's still the five priors.

I like to dress that up.  Not just, "Were you convicted in 2008 of drug possession?"  I have a certified copy of the journal entry, and I show it to her.  And then I say something like, "Back then, you were in a courtroom just like this one, except up on the 21st floor, in front of Judge X -- a nice man, right?  And you were standing in front of a podium just like this one.  And the judge, he asked you how you pleaded to a charge of drug possession, and you remember?  You said, 'Guilty,' right?"

Of course, I needed to find out what happened with the case, especially if she got a prison sentence.  So I started to pull up the cases on the online docket.

The first one I checked was from 2006.  EvidR 609(B) provides a 10-year lookback on convictions for all felonies except fifth-degree felonies, but the ten years starts to run from the time the defendant completes her sentence.  She got time served in that one, so I move up to the docket of the 2008 case.  That's certain to fall within the period.

And the first entry is this one:

IT IS HEREBY ORDERED THAT RUSSELL S. BENSING, ESQ., HERETOFORE ASSIGNED AS COUNSEL FOR THE DEFENDANT IN THIS CAUSE, BE ALLOWED $400.00 FOR SERVICES SO RENDERED. IT IS ORDERED THAT THE COURT CERTIFY SAID AMOUNT TO THE COUNTY AUDITOR AND THE COMMISSIONERS FOR ALLOWANCE AND PAYMENT.

Didn't remember her at all.  She remembered me, though.  Told the prosecutor she thought I was a really good lawyer, and that I'd helped her a lot.  Not enough to keep her from picking up three subsequent cases, apparently...

So that was that.  Representing a defendant where the victim is a former client is pretty much the quintessential conflict of interest.  The judge let me off the case and went in search of a fifth lawyer for Daryl.

Here's a memo that's probably going out in the county prosecutor's office tomorrow.

TO:  All assistant prosecuting attorneys, including supervisors
FROM:  The Power
SUBJECT:  609(B) Evidence

From this point on, the assistant prosecuting attorney on the case is responsible for checking the docket of every State witness or victim who is subject to impeachment by proof of a prior conviction under Evid.R. 609(B), and ensuring that there is no conflict between any such witness or victim and defense counsel in the present case.

Good idea for defense attorneys to check on that, too.

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