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Russ' Excellent Adventure

Voir dire started to go south when one juror told the bailiff that she couldn't stand me.

We brought her out into the courtroom, and in probing questioning, a bit too extensive for my taste, the prosecutor established that the prospective juror felt that I was a complete phony, play-acting to the point where she felt she was in a television show.  She looked at me and said, "It's nothing personal."

Well, that's good.

When she said that the only way she could be fair and impartial was if I didn't say anything the rest of the trial, we agreed to remove her.  Still, what she said lingered.  I was defending a cold case rape, with my defense being that the woman was a prostitute.  I'm so sensitive to feminist issues that I make Alan Alda look like Vlad the Impaler, and here I was sounding like a pre-rape-shield shyster.  By the time closing argument came around, I was sure I could feel the hatred from the jury box rolling over me like a wave.

So I was surprised when they came back in an hour and fifteen minutes with a not guilty.

Several lessons.

Know thyself.  I let the one juror rattle me.  I shouldn't have; we talked to the jury afterward, and they had no problem with me.  An old lawyer once told me about the hound-dog method of jury selection.  Every now and then, you'll see two dogs being walked down the street, who take an instant dislike to each other, barking and howling.  That works with people, too.  If you're getting bad vibes from a prospective juror, kick them off.  I was fortunate in that she was outspoken in her contempt of me, rather than keeping quiet about it.

Know your case.  The woman's story was that on December 16, 1996, sometime around six-thirty in the evening, she was standing on the corner of West 25th and Vestry talking to her friend John Bryant on the phone.  A nicely dressed man came up, and she hung up so he could use the phone. 

Instead, the man pepper-sprayed her, forced her into his car at knifepoint, drove her to the next block, raped her, then pepper-sprayed her another time and threw her out of the car.  She stumbled into the ER at St. Lutheran's, which fortuitously was on the same block.

Except that the police report and medical records show this happened at 4:00 AM, while she was standing on the street corner "waiting for a friend."  There was no Jim Bryant and no phone call.  And she didn't go to the ER; the records showed that the police took her there.  After supposedly having been raped and pepper-sprayed, she walked right past a brightly-lit area with a red sign saying "EMERGENCY ROOM" to go another hundred yards to call the police.

The first time I read the police report, the 4:00 AM punched me in the mouth.  Yet neither of the prosecutors - very good ones, mind you - saw that as a problem. 

One of the hardest things for a lawyer is maintaining objectivity.  I think that's a particular problem for prosecutors working in a specialized unit, like cold cases.  You develop an attachment to your victims, and that sometimes results in a blind spot.  The time issue had to be addressed.  It wasn't as if the woman had come in and said, "Look, it was twenty-one years ago, all I remember is that it was dark."  She came up with a very detailed explanation, which wasn't true.  All the prosecutor did in response was spend half her final close telling the jury I was despicable for even calling the woman a prostitute.

Know the law.  Did you know the defendant can introduce a police report?  He can; under EvidR 803(8), a police report is admissible, except in criminal cases, unless introduced by the defendant.  I got it in, and it helped to have that time discrepancy staring the jury in the fact.  It might help you, too, on occasion.  Keep it in mind.

So then there's the theory of the case.  Mine was that this was a consensual encounter, and ended badly:  he didn't pay her as much as she wanted, he didn't pay her at all, he didn't give her the drugs.  She got pissed, called the cops, and claimed rape.  My evidence of this was my client, who testified to just that scenario in detail.

Well, no.  For various reasons, had he tried to take the stand, I would have tackled him before he got there.

The prosecutor argued that absent testimony from my client, there was no evidence of consent.  But you don't need testimony from your client.  I handled an appeal a few years back, State v. Tatum.  The victim claimed the defendant robbed him at gunpoint while he was sitting in his car, waiting for a friend.  Turns out the friend was a drug dealer, and the victim admitted that the defendant offered to sell him some weed.  The lawyer tried to argue in closing that this was simply a drug deal gone bad:  the victim had bought some bogus weed, and was angry about it, leading to him claiming to have been robbed.

"Tried" is the operative word there; the prosecutor said he was arguing facts not in evidence, and the judge shut him down.  I argued that the lawyer was simply presenting his theory of the case, telling the jury what inferences they can make from the evidence, and the appellate court agreed. 

Here, I argued that the jury could infer the woman was a prostitute from the time, and infer that she hadn't been raped or pepper-sprayed because she walked past the emergency room.   It's not airtight by any stretch, but I don't need it to be.  I don't have to prove the story; it just has to create a reasonable doubt about the State's story.  And in the absence of a prosecution theory that provided a counter-explanation, it was enough.

Prosecutors are always telling jurors that circumstantial evidence is just as good as direct evidence.  That's a two-way street:  you can play the inference game, too.  Do it.


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