Friday, March 19, 2010

But Why Are Jurors Coming In?

One of the downsides of Trial Chicken, is that occasionally one ends up sitting with the client at the counsel table as the jury files in, thinking, Holy Shit, this wasn't supposed to go!

Since a not-guilty verdict should eliminate the attendant malpractice problems, I'll continue this confession, to comfort those of you who have found yourselves in this spot, or serve as a cautionary tale, or at least remind everyone to always stick a couple of yellow pads and a trial notebook in your briefcases.

No, I didn't walk into court and meet my client for the first time on the day of trial--it was a DV case--assault in the third degree, as close as you can get to a misdemeanor and still be charged with a felony--and I had interviewed the witnesses, who all agreed that no assault had occurred, but I burned up all of my trial preparation time writing a trial brief which I thought should and would result in dismissal of the case.(You'd think I'd know better by now.) Since I worked on my beautiful trial brief until 2:00 a.m., I slept as late as I could in the morning, and went straight to court, where I had arranged to meet my client.

Problem Number One:  My female client was wearing a frayed sweatshirt and jeans, with rubber Croc-style shoes that had broken straps that trailed behind her like tails.  I had discussed "nice clothes" for court with her, but I've learned over the years that "nice clothes" means different things to different people, and I usually make my clients show me what they plan on wearing to trial.  But it didn't matter--there was no way the state was going forward with this lame case, and even if it did--the judge would dismiss it based on my motion  (yes, I realized how stupid this sounds now).

Problem Number Two:  The prosecutor showed up with a cop in tow.  Which seemed strange, because why would she need a cop for a case that she was going to dismiss?

Problem Number Three:  The judge would not listen to anything I had to say.  I moved to preclude the state from calling my gal's husband as a witness for the sole purpose of impeaching him with otherwise inadmissable hearsay.  I have refined my method on this motion over time, and had a certificate from the "victim"-husband, stating what he would testify to at trial, and my client and I were prepared to stipulate to all other elements of the offense in order to prevent the state from squirreling out of the rule by claiming that it doesn't know how its own witness would testify or that its primary purpose for calling him was to show venue or something.

I was a little surprised when the judge, looking weary and annoyed for having bothered to read my brief, said, What is the purpose of this motion?  Isn't this just a garden-variety DV case where the victim recants and then the state uses the 911 tape?  

Well, Judge, my brief cites the cases ...

I haven't had any other lawyers bring this motion in my court.  

Oh, the things I wanted to say.  Finally, I managed, I don't know quite how to respond to that, Judge--I've supplied the court with legal authority, both state and federal, for my motion, and I am asking the court to analyze the facts according to the law rather than what happens in this courtroom every day.  If the court has contrary authority, I'm sure it can provide it to the state, and then the state can argue against my motion. (I imagine you can see where this was going ... )

Problem Number Four:  I didn't have any notepads.  I normally have a couple of yellow pads in my giant brief-case-y-purse-thing, but I had driven over to a CLE in Seattle on Friday, and my briefcase only had the CLE notebook and my case file in it.   Luckily, though, the pages of my brief had two sides:

While the bailiff went to round up the jury panel, I ran down the hall to the Conflict Public Defender Office, which still has its office tucked in the corner of the courthouse.  (Ten years ago, our office was in this same space, so I still know the nice ladies there--and where they keep their candy.)  The nice ladies let me rummage through their client closet until I found a cream-colored satiny blouse, which I made my client change into in their file room.  (As I am writing this, I am a little horrified at how my client must have felt through this scrambling, but at the time there wasn't any time for freaking out, we just had to get shit done.)  I persuaded her to let me braid her hair, and we were ready to go back in the courtroom.  I even realized that I could use the CLE notebook for a quick trial notebook.  I checked the cover to make sure that it didn't refer to the CLE I had been to, but it looked fine:

OK, maybe "Continuing Legal Education" wasn't ideal, but it was better than the trial cyclone my uncontained papers would create.

As in every trial, many, many funny things happened, but my favorite was a question my client asked me on the second day: "How come the judge sleeps only when you're talking?"

We finished closing arguments at 5:00 p.m. on Tuesday, and I had another trial to start on Wednesday at 9:30 a.m.  I stayed up almost all night, again, writing a trial brief, this time to exclude the 911 tape, which was the only evidence the state had in a brother-on-brother fight involving a guitar.

The second case was assigned to a different judge.  The new judge said, "Thank you Ms. Defender, for providing the court with this trial brief and the transcript of the 911 tape (which took me forever to type).  I know you just finished another trial, and probably had to stay up late, and I appreciate your efforts as I'm sure your client does."  Now, this same judge sometimes thanks the in-custody clients for coming to court, but at that point I was so grateful to be treated with respect that I almost cried.

The new judge excluded the 911 tape and dismissed the case (this is how trial chicken is supposed to work), just in time for the first judge's bailiff to come and find me and tell me that the jury had a verdict, which was, as I mentioned, not guilty.  Best trial morning ever.

After the verdict, I was rearranging my materials in my briefcase, and pulled the trial notebook out, noticing for the first time the message on its spine that had been facing the jury the entire trial:

I'm really glad I saw that only after the verdict, or I might have shot myself.  A not-guilty verdict can cure a lot of fuck-ups, which is why you learn a lot more from the trials you lose and subsequently beat yourself up over. But this particular fuck-up did give me a good idea for my next trial:


June said...

f-in hilarious!

Lizards said...

What is a trial brief? In Georgia, if we want something kept out, we just file a motion in limine and include our supporting law in that. Is that basically the same thing?

Anita Moore said...

Lizards: yep. Also, sometimes there is an issue you know is going to come up at trial, and that you need to educate the court on, and a trial brief can also serve that purpose.

Great wins, Carol! I've got a good one for you: today I had a trial set where I got not only the case that was on dismissed, but also all of the guy's other pending cases. A far better outcome than I had anticipated, proving that prayer works. Also homework done ahead of time didn't hurt.

jbontrager78 said...

Congrats on the win and excellent idea for your next trial notebook!

j'lynn said...

Love it! Congrats!!

Lee said...

This cracked me the eff up. People use the term LOL far too loosely, but I was literally laughing out loud when I saw the binder spine.

I'm interested in the arguments you make to prevent them from calling a witness solely to impeach them, can you send me one of your trial briefs on the issue when you have a chance?

Jamison said...

Classic Carol D post!

As you say, we can laugh at the binder knowing that the case came out well. But you know you would have been kicking yourself for years if you had lost the trial.

I also particularly liked your client's observation about the judge only falling to sleep when you were talking! I don't think judges always appreciate the intentional or unintentional signals they send to clients.

carol d said...

Lizards: I'm glad you asked me about "trial brief" because it reminded me that when I first heard people using the term (and it probably means different things in different places, or nothing at all in some)I was pretty stressed because I wasn't exactly sure what it was, and it made me feel like I didn't know what I was doing, etc. But it's basically a legal memordandum that addresses issues that you expect to come up in trial. Some issues might be motions in limine, but the trial brief can address any issue about which you want to make sure the judge is aware of the law. Not to be confused with the "pocket brief," which is a brief about an issue you think might come up, but you don't want to alert the prosecutor to ahead of time, so you type up a statement of the law on the issue, and then keep it in your pocket (or trial notebook) until you need it.

carol d said...


Gideon said...

I don't get it.

carol d said...

That is because I am a genius!

Or because I posted my comment on the wrong post.

Cat K said...

Huge fan -- you remind me why I've stayed in this work for 26 years and why I love public defenders.