Chapters 41, 42, 43, and 44, Manslaughter Trial

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CHAPTER FORTY-ONE

I decided to try to settle Nate’s case.  I called Doug.  “How about reckless endangerment?”

“Reckless endangerment, Kate?  That’s a misdemeanor.  You’ve got to be kidding.”

“Your guy was the asshole.”

“I forgot that part of the statute.  It is a crime to recklessly cause the death of another human being … unless he’s an asshole.”

“Asshole’s provoke fights.”

“Kate, your guy didn’t have a scratch on him.  Even if Nate joined the fight in self defense, he went way too far.  You don’t get to kill someone just because they pick a fight with you.”

“How about second-degree manslaughter?”  I offered this in slight desperation; I didn’t think Nate would accept this plea, even if Doug offered it.

“Look, Kate, it’s not like I don’t have sympathy for your guy.  But the truth is, I don’t have any discretion on this case.  It comes from the top—no deals on Bridges.”

“That’s pretty pathetic.  Don’t you have the authority to do what you think is right on your own cases?”

Doug laughed.  “I have the authority to do as I am told.  Anyway, I’m not sure what is right on this case.  I’ll let the jury decide.”

“That is the weakest cop-out I have ever heard.”

“Kate, we have a jury system in this country.  I can’t see how relying on that system is ‘weak.’”

“Juries are completely insane.  They get it wrong all the time.  Your judgment is better than any jury’s.”

“Why, Kate.  I didn’t know you felt this way about me.”

“Use your own judgment and do what’s right on this case.  Let’s settle it with a felony conviction, but no prison time.  I’ll even give you six months of electronic monitoring.”

“That’s very generous of you, Kate.  But, no.  And that really is my final answer.  You might as well stop pestering me and get ready for trial.”

CHAPTER FORTY-TWO

            I finally had to confront Nate about the worst part of the case—his statement to the police, which the detective called his “confession.”  I was particularly worried about part of the interview where Nate admitted that he had “lost control” during the fight.  It was pretty obvious that Nate hadn’t started the fight, that he was initially defending himself.  The police believed that he went too far in defending himself.  The law allows a person to defend himself; but the force used must be “reasonable.”  The police wanted Nate to admit that he went beyond self-defense, that he “lost control” and viciously attacked Terry after any need to defend himself had passed.  Police thought that if Nate “lost control,” then he had acted recklessly, and was thus guilty of manslaughter.  I had a transcript of Nate’s recorded conversation with the police.  The transcript read as follows:

Nathaniel Bridges:  I just want to go home.

            Detective Bolsch:  We would like you to answer some questions.

            Nathaniel Bridges:  I just want you to understand how it happened.  Terry came at me.  I didn’t mean to kill him.

            Detective Bolsch:  “At what point did you lose control?”

            Nathaniel Bridges:  “I didn’t lose control.  Like I said earlier.  He came at me, and it was on.  It happened …so fast.”

            Bolsch:  Remember what you told us earlier.

            Bridges:  I can’t remember anything anymore.

            Bolsch:  We asked you about losing control and you said, I don’t know, maybe when he was on the floor.

            Bridges:  I really don’t think I lost control, it was so fast.  I stopped as soon as I realized he wouldn’t be getting back up.

            Bolsch:  You told us before that you lost control.

            Bridges:  I’m not even sure what that means.  Fights are out of control by definition.

            Bolsch:  So you agree that you lost control?

            Bridges:  I guess.

]

“I don’t understand why she wanted me to say I lost control,” Nate said.

“You’re not charged with murder.  You’re charged with manslaughter.  If you had been in control, and intentionally hit him until he died, it would be murder.  You’re charged with recklessly causing Terry’s death.  So they’re trying to say that you were initially defending yourself, but eventually lost control and beat him in a rage until you killed him.  They’re trying to say that by losing control, you recklessly caused his death, and are therefore guilty of manslaughter.”

“But it was a fight—I just hit him until I knew he wouldn’t come at me any more.”

“I know.  We’ll have to make sure the jury understands that.”

            After coming back to the apartment and finding that Terry wasn’t breathing, Nate had called 911.  I considered this call a good fact.  He had waited about five minutes before calling, but I didn’t think five minute was an excessive amount of freaking-out time.

            “What were you thinking before you decided to call the police?”

            “My first thought was to run away—to just start running.  Then, I thought about calling my parents.  Next, I had a vague plan to leave the country.  I mainly remember thinking, I can’t believe it, I can’t believe this happened.  For a second I was pissed at Terry for getting me into this mess.  Then I couldn’t believe it again.  In the end, I knew what I had to do.  I called the police.”

            I looked at the police report: an ambulance arrived at the apartments at 3:41 a.m. with the police a few seconds behind.  Nate told police that Terry had started a fight in their apartment.  Nate said that he fought back, and was surprised by Terry’s ferocity.  Nate told them that he pushed Terry hard against the wall, causing Terry to fall down.  Nate then went to the bathroom.  He thought the fight was over.  When he came out, however, Terry lunged at him.  Nate thought that he hit Terry five or six times in the head.  The last punch dropped Terry.  In order to cool down, Nate left to get a soda out of the pop machine.  When Nate got back to the apartment, Terry was dead.

            “What about this stomp mark on his chest?” I asked.

            “I don’t remember doing it.”

            “Are you saying it’s not your boot print?”  The bruise pattern was a distinctive waffle print that exactly matched the hiking boots Nate had been wearing that night.

            “No.  I just don’t remember.  If I did it, it was to make sure that he stayed down.  That’s what I remember going through my head:  I’ve got to keep him from coming at me again.”

            “It says here that you got to the police station at 8:00 a.m.  What did you do from 3:30 to 8:00?”

            “Sat in the patrol car.”

            “Did they let you change clothes or anything?”

            “No.”

            “You just sat there in your bloody clothes for four hours?”

            “Yes.”

            “That sounds horrible.”

            “Let’s just say that if there had been a gun in the police car, I wouldn’t be here today.”

            “Where did they take you?”

            “To the police station.”

            “Why there?”

            “I told them I would talk to them, tell them everything that happened.”

            “Didn’t they tell you that you had the right to talk to an attorney?”

            “Yes, but I didn’t need one—Terry started the fight.  I was defending myself.  I was sure that once I told them what happened, they would understand that I hadn’t done anything wrong, and they would let me go.”

            “What happened once you got to the police station?”

            “They put me in this little room.  Oh yeah, and they gave me a breathalyzer test.”

            “Do you know what the result was?”

            “Point one zero.”

            “Were you drunk?”

            “I don’t know what I was.”

            “What kind of questions did she ask you?”

            “All I remember was that I just wanted to tell her what had happened, but she kept asking me the same question, over and over again.”

            “What question was that?”

            “At what point did I lose control.”

            “What did you tell her?”

            “I kept saying that I didn’t lose control, that it all happened so fast.  She kept trying to trick me into saying stuff.  I probably slipped up a couple of times.”

            “Slipped up and told her the truth?”

            “No.  I was trying to tell the truth.  But she wanted me to say that I lost control.  I hadn’t slept in 48 hours and I hadn’t eaten for 18.  I was tired, hungry, half drunk, and terrified.  She was playing mind games with me.”

            “How long did you talk to her?”

            “Before or after they used the tape recorder?”

            “What do you mean, before or after they used the tape recorder?  Didn’t they record the whole thing?”

            “No, the first two hours was just me answering Detective Bolsch’s questions.  After the first session, she took a break.  When she came back, she had a tape recorder.”

            I looked through my police reports.  I had seen the transcript of the 20 minute tape-recorded conversation.  Detective Bolsch had also written a report of an “initial interview” she conducted with Nate.  When I reconstructed the time line, I could tell that Nate was right: the “initial interview” had lasted two hours.  Why had she recorded only the last 20 minutes of a two hour interview?

CHAPTER FORTY-THREE

            In the next couple of months, I worked my way through the investigation of Nate’s case, while juggling my other 80 felony cases.  I interviewed all of the students who had been with Nate and Terry that night.  I talked to all of the police involved.  I examined the physical evidence.  I consulted a blood spatter expert.  (“It’s blood spatter, not blood splatter,” he corrected me when I first called.)

“According to my client,” I told the expert, “he hit the guy maybe five or six times.  But there’s so much blood.  Is it possible to have a fight with five or six blows to the head and have this much blood?”

“It’s possible,” he said.  “Head wounds bleed profusely.  The deceased has a couple of lacerations on his face, and his nose was also bleeding.  Once he has blood on his face, any subsequent blows would cause the blood to spatter.  Picture a leaky water balloon.  If you hit it, more liquid comes out, and any liquid on the surface will also fly off in a blood-spatter pattern.  That is, if you have blood on the surface of an object, and strike it, then the blood will fly off of the object.  Also, when the person moves his head quickly, blood will fly off his face.”

“So, theoretically, the amount of blood in the apartment could be consistent with five or six blows?

“Theoretically. But there’s an awful lot of blood.”

I also scheduled an interviewed with Dr. Robinson, the state pathologist.  José had good things to say about her—that she was straightforward and honest.  He said she didn’t try to slant her opinion to favor the state.  I wondered if Terry’s high level of intoxication had possibly caused his death, rather than a blow to the head.

On a Wednesday afternoon, about two weeks before the trial, I drove to Trinity Hospital, which housed the pathologist’s office in its basement.  As I wandered around the hospital’s main floor, searching for the elevator to the morgue, I wondered if I would see dead bodies lying on steel tables.  I imagined the pale bodies coming alive, rising from their tables … I forced myself to push the “down” button on the elevator.  The elevator doors opened, and I found a normal-looking reception area, rather than the imagined space filled with steel and corpses.  The receptionist led me to a small conference room where Dr. Robinson was waiting for me.  She had several notebooks stacked on the table.

            “Thanks for agreeing to meet with me.” I said.

            “Of course,” she said.  We both knew she was required to meet with me, but it never hurt to be polite.

            I decided to be honest.  “I’ve read your report over and over, I’ve looked up all the words in a medical dictionary, and I still have no idea what it says.”

            “What do you want to know?”

            “Um, I want to know what your report says in real-people language.”

            “OK.  The cause of death was a subdural hematoma caused by blunt force.”

            She noticed the blank look on my face.

            “A subdural hematoma is a collection of blood on the surface of the brain.  When some sort of trauma, like a blow to the head, causes a sudden change in velocity of the head, the tiny veins that run between the surface of the brain and its outer covering stretch and tear, allowing blood to collect.  The collecting blood exerts pressure on the brain, which, if untreated, can lead to death.

.           “Can you tell how many times he was hit?”

            “I’d say at least five to six times.”

            “Isn’t that sort of a normal number of hits in a fight?”

            “Fighting is not my area of expertise.”

            “Can a person develop a subdural hematoma from a single blow?”

            “Yes.”

            “Is this common?”

            “I wouldn’t say common—but it’s not unheard of.”

            “Can you tell if he was on the ground when he received the fatal blow?”

            “There is the stomp mark on his chest.  If you notice the pattern of bruising on the decedent’s chest, you’ll see a pattern that matches the defendant’s footwear.  This indicates that the decedent was on the ground when he was stomped on.”

            “Can you tell if the stomp happened before or after he died?”

            “Before.”

            “Did the stomp kill him?”

            “No, but it seems to show that he was being kicked while he was down.”

CHAPTER FORTY-FOUR

            I woke up at 2:00 a.m. on the morning of the first day of Nate’s trial.  Trial thoughts raced: my voir dire questions weren’t good enough … I needed more time to practice my opening statement … my cross-examination needed more work. …  Why didn’t I have all of this ready?  The trial started today.  I closed my eyes and waited.  Who was I kidding?  I was done with sleep for the day.  With a sigh, I got out of bed.

It was 2:45 a.m. when I left my apartment for work.  I walked the few blocks to my office as quickly as I could, wishing I had some mace or karate training.  The traffic lights silently flashed red and yellow, blinking reminders that it was too early to be awake.  I avoided eye-contact with the drug dealers and prostitutes hanging out in the shadows, fearing that I would recognize them as my former or current clients.  I wondered if the judge would make me go to trial if I was mugged.

I arrived at my office—unmugged, alas—and walked through the dark hallways to my office.  I switched on my computer, thinking that no one would believe that I came to work at 3:00 a.m.

            Just to prove I was in my office at this ridiculous hour, I sent Doug an e-mail:  “I feel like I am going to throw up,” I typed, feeling like I was going to throw up.  I wondered if any lawyer had ever thrown up in trial, just from nerves.  Maybe I would be the first.  For the next couple of hours, I worked on my motions in limine and voir dire questions.  By 8:00, I had made significant progress, but still felt far from ready.  I wondered if any lawyer had ever felt completely ready for trial.

Just before leaving for court at 8:30, I received a reply e-mail from Doug.  “Don’t worry,” I read.  “You are smart and you work hard.”

            Doug’s e-mail made my eyes fill with tears.  I must seem pathetic if Doug felt like he had to be nice to me.

            “Stop being nice to me,” I replied.  “You are freaking me out.”  I headed off to court, feeling like I was going to simultaneously cry and vomit.

I climbed the stairs of the courthouse to the fourth floor, precariously carrying my three trial notebooks and various evidentiary books.  Nate and his family were waiting for me in the court hallway.  Because I couldn’t think of anything comforting to say to them, I simply shook their hands and guided Nate into Judge Stewart’s courtroom.  I was glad that Nate’s trial had been assigned to her.  Although her manner could be gruff, she knew the law, and followed it dispassionately.  I expected her legal rulings would be fair.

I took the counsel table closest to the jury, but placed myself in the seat between Nate and the jury box.  I didn’t want the jurors too close to his enormous muscles.  I should have made him go on a starvation diet before the trial.  Instead, even though he was no longer playing football, he had continued to work out, probably to relieve stress.  He was even bigger now than when I had first seen him.

            Doug came in a few minutes later, nice-looking in his navy trial suit.  He had tried to tame his hair with shiny hair product, but errant curls were escaping their placement.  I didn’t make eye-contact with him; I sat still, looking forward, waiting for the judge to come out.  There was nothing I could do to stop the trial from starting.

            As usual, the judge came into the courtroom and asked if the parties were ready to proceed.  Doug and I both answered affirmatively.  The judge’s bailiff escorted the jury venire panel into the courtroom.  Strangely, once the jurors were in their places, the stress dissipated.  I don’t know if I still felt stress and dread but was too busy to notice, or if the feeling actually disappeared, but once the trial started I forgot to worry.

            I always asked my clients to keep track of the prospective jurors they liked or disliked.  For one thing, unlike celebrity lawyers, I didn’t have a jury or trial consultant, so if I wanted a second opinion, my client was the only person I could ask.  Secondly, I figured that if I were on trial I would want to have a say into who ended up on my jury.

I had Nate write the numbers 1 though 35 on a yellow pad, and told him to make notes of his positive or negative impressions of people.  “You can just put plus signs if you like them, or minus signs if you don’t, I said.  “Or you can be like me and use smiley face, frowny face.”  I realized I probably shouldn’t have said the smiley face, frowny face part.  I actually did use this system—a good juror would end up with about 15 smiley faces drawn by his name, and a bad one would have a bunch of angry, scowling frowny faces—but these symbols probably didn’t appear very professional to an outside observer.  Nate still looked extremely tense, but he wrote the jurors’ numbers down the side of the page.

Doug asked his voir dire questions first.  He looked confident and relaxed, but I knew he was nervous by the way he twisted his hands behind his back.  Despite his nerves, his style was more relaxed than most prosecutors.  I found myself becoming irritated when he had all the jurors laughing and talking.

            In my portion of voir dire, I managed to get the jurors to talk about fights without making a fool of myself.  There were too many women on the panel, though.  I needed jurors who had been in fights, who understood the unstable brew of adrenaline, rage, and alcohol.  One woman stared at me with crossed arms and a dour expression.  I looked over at Nate’s legal pad, and noticed that he was carefully drawing frowny faces by the dour lady’s number; this small concession—the enormous, tough guy football player carefully drawing frowny faces—made me smile.  Nate and I were a team now.  We would keep as many men as possible, and the women who seemed scrappy.  We would definitely kick the dour lady off.

After we completed voir dire, the bailiff passed the juror sheet back and forth between Doug and me.  We could each use six peremptory challenges.  That is, we could each strike six people who we did not want to be on the jury.  Doug crossed off the former rodeo rider.  The bailiff passed the sheet to me.  I crossed off the prim elementary school teacher.  I kept track of the changes on my own sheet of paper, crossing off names of the people who had been bumped and drawing arrows for the people who were moving up.

            Finally, when we had finished using all of our challenges, we waited for the juror shuffle to begin.  The judge announced which jurors “in the box” could leave, and then which jurors from the pool sitting in the audience section of the courtroom would advance into their places.

            While the shuffle took place, I reviewed my opening statement, practicing the first couple of sentences in my head.  I liked to memorize the first lines, in order to give a compelling introduction.  After those first sentences, I spoke from an outline.

            “Thank you, ladies and gentlemen,” the judge announced when the shuffle was complete.  “You will now take your oath as jurors,”

I looked up at the jurors.  What!  The dour lady was standing in the box, raising her hand to take the jurors’ oath.  What was she doing there?  She wasn’t supposed to be there.  I mentally retraced the peremptory challenges.  Doug and I had both exercised all of our peremptories, and one woman had been excused for cause.  Then, I remembered.  Just before we began, one lady had mentioned that she had to go out of town to attend her sister’s funeral.  I looked down at my list.  I had forgotten to mark her off.  This mistake had thrown my tracking system and allowed the dour lady on the jury.

Nate nudged me.  “I thought we didn’t want that lady,” he whispered.  The downside to all of my openness regarding jury selection was, of course, now Nate knew that I had screwed up.

“Umm, I’m sure she’ll be OK,” I said guiltily.  I was horrified by this mistake, but had to push it out of my mind.

I stood up and walked to the lectern with an outline of my opening on a single page.  I didn’t want to distract the jury by flipping pages on a notepad.  I also wanted to appear sincere and prepared.  Most of all, I wanted them to listen to me.

I walked away from the lectern and my outline.  I was tempted to begin my opening with a common series of stylistic crutches:  “Ladies and Gentlemen of the Jury, May it Please the Court and Counsel, bla, bla, bla.”  The only person I was here to please was my client, for one thing, and for another, all of those introductory comments diluted the drama of the first words I would say to the jury.  I forced myself to skip the ineffective but comfortable words.

“Imagine this,” I said.  “You are in college.  You are hanging out with a friend.  Just normal guy stuff—watching TV, playing video games, drinking beer.  Your friend is someone who can be a bit of a jerk when he drinks.  But this doesn’t worry you, because you are bigger and stronger, and you are the one who always gets your friend calmed down.

“When your friend starts acting like he wants to fight someone, you still aren’t that worried—you pull him out of a couple of fights, just like you have many times before.  You get him back to your apartment, and figure you’ll watch a movie and crash.  But something happens to your friend, maybe it’s the movie, maybe it’s because he was even drunker than you knew, but he gets really emotional over a girl who just dumped him.  He is on the verge of tears, but then he gets mad.  He starts punching walls, pounding on the floor, and then begins howling inconsolably.

“You follow your friend into the kitchen when you hear his fist slam through the drywall.  When he turns around, his eyes are different, different than you have ever seen them.  He lowers his head and charges at you.  From that point on, you are fighting for survival based on instinct.”

I walked in front of the jury.  “The only thing Nate Bridge did was try to be a friend and then defend himself when attacked.  Nate Bridges is an innocent man who acted in self defense.”

            Doug’s first witness was Detective Bolsch.  As the lead detective on the case, she had been involved from the beginning, arriving at the crime scene minutes after the ambulance.  She had supervised the collection of evidence and photography of the apartment.  Everything came down to whether Nate had gone too far in defending himself.  Detective Bolsch thought that she had gotten Nate to admit that he had used excessive force, when he had admitted to her that at some point in the fight he had “lost control.”

            After having the detective describe her role in the investigation, Doug led her to the subject that he thought would win the case.

            “Detective Bolsch, did you have an opportunity to interview Mr. Bridges?”

            “Yes, I did.”

            “Where did that interview take place?”

            “The interview occurred at the police department, in one of the interview rooms.”

            “When did the interview begin?”

            “At 8:10 in the morning.”

            “When did it end?”

            “At 10:30.”

            “Did you record the interview?”

            “After an initial interview, I recorded his statement.”

            “Did you record the initial interview?”  Doug had anticipated that I would attack the failure to record the entire interview.

            “No.”

            “Why not?”

            “Initially, I was interviewing Mr. Bridges because he was a witness.  I don’t usually record witness interviews because I take good notes.  During the initial interview, however, Mr. Bridges admitted that he had lost control during the fight.  After he made this admission, I asked him if he would be willing to make a recorded statement.”

            “Did Mr. Bridges say that he lost control during the fight?”

            “Yes.”

            “When did he make this admission?”

            “Twice during the initial interview, and then also on the tape.”

            Doug then played the recorded interview to the jury.  I winced at the part where the detective asked Nate if he admitted that he lost control.  Doug hoped to prove that Nate had gone beyond “reasonable” self-defense and pummeled his friend to death in a blind rage.  Even though I considered Nate’s “I-guess” answer equivocal, it reverberated through the courtroom.  Nate’s words about how he was feeling during the fight were important, more important than usual, because whether he committed a crime or not basically came down to his state of mind.  The fact that Terry was dead did not necessarily mean that Nate had committed a crime.  In fact, everyone agreed that Nate was initially acting in self defense.  What mattered was whether he started out in self defense, but somewhere along the line snapped and pummeled his friend to death after the need to defend himself had stopped.  So it was what was in his head.

            “I have no further questions, your honor,” Doug said, ending strong.

            The judge turned to me.  “Ms. Hamilton.”

            I picked up my trial notebook and carried it to the lectern.  I needed to convince the jury that the phrase “lost control” was the detective’s idea, rather than Nate’s.  I had to make them understand that she had coerced him into saying what she wanted to hear.

            “Detective Bolsch, you testified that it wasn’t necessary to tape-record your initial interview with Jason because you ‘take good notes.’”

            “Yes.”

            “You believe that your notes are so good, in fact, that it is not necessary to back them up with any sort of electronic recording.”

            “Yes.”

            “Would you agree, though, that the very best way to preserve the contents of an interview would be through video or audio recording?”

            “My notes are very good.”

            “Are you saying that your notes are so good that there is no modern technology that would give a more accurate rendition of your interview with Jason?”

            “My notes are very good.”

            “So, as long as we have really good note takers, modern recording devices are completely unnecessary?”

            “I’m just saying that my notes are quite accurate.”

            “I’m asking you whether a recording would be more accurate than your notes.”

            “Not necessarily.”

            “Have you noticed that lady over there,” I said, pointing at the court reporter.  “Do you know what she does?”

            “She’s the court reporter.”

            “It’s her job to record every word that is spoken in the courtroom?”

            “I suppose.”

            “It’s important that her recording be very accurate.”

            “Yes.”

            “Tell me, detective, is she using some sort of recording device, or is she taking notes?”

            “She’s using a stenography machine.”

            “Why do you suppose she’s using a machine rather than taking notes?”

            “I’m afraid I can’t speculate as to why the court operates the way it does.”

            “Do you think it’s because mechanical recording devices are more accurate than notes?”

            “I’m afraid that’s beyond my realm of expertise.”

            “Do you think your notes are better than a recording device?”

            “No.”

            “Would you agree that it is important to know exactly what words were spoken during a suspect’s so-called ‘confession’?”

            “You have his confession on the tape recording.”

            “Yes, but what about the conversation that led to that statement?”

            “I don’t see why that is important.”

            “Have you ever heard the phrase ‘putting words in someone’s mouth’?”    

            Doug stood up, “Objection,” he said.  “Argumentative.”

            “It was just a question, your honor, not an argument.  The witness hasn’t even answered it yet.”  I was pretty sure the judge hadn’t been listening to my question.

            She looked over the top of her reading glasses at Doug, then me.  She was more likely to get in trouble with the Court of Appeals by limiting my cross examination than by allowing the question.  “Let’s see what the witness has to say.”  She turned to Detective Bolsch.  “You  may answer the question.”

            “What was it again?”

            Perfect.  I loved it when prosecutors objected, and were overruled and I got to repeat my question.  Not only did it make the jury pay more attention, it also made the jury wonder what the prosecutor was trying to hide, and let me repeat the question a couple of times. “The question was:  Have you ever heard the phrase ‘putting words in someone’s mouth’?”

            “Yes.”

            “What if ‘out of control’ were words that you put in his mouth?”

            “I didn’t do that.  He admitted it of his own free will.”

“Would you agree that police have methods to get a suspect to say what the police want him to say?”

            “I don’t know what you’re getting at.”

            “Would you agree that one goal of interrogation is to get a suspect to admit something he does not want to admit?”

“I suppose.”

            “For example, if you know that someone was involved in a theft, you want that person to admit their involvement.  However, at first the person denies involvement.  You then use interrogation techniques to get the person to admit involvement.”

            “Yes.”

            “You get the suspect to admit what you believe happened.”

            “Sometimes, yes.”

            “And that helps you be sure your theory is right.”

            “Yes.”

            “But what if your theory was wrong?”

            “I don’t understand what you mean.”

            “What if the person admits involvement, when he wasn’t involved?”

“That would never happen.”

            “How many times did you say the words ‘out of control’ in your conversation with Nate?”

            “I couldn’t say.”

            “Does 25 times sound about right?”

            “I have no idea.”

            “Would you like to go through your notes with me and count them?”

            “If you say it’s 25, I believe you.”

            “I say it’s 25.”

            “All right, 25.”

            “You said the phrase ‘out-of-control’ 25 times.”

            “Yes.”

“How many times did Nate insist that he never lost control?”

She looked through her notes.  “I’d say five or six times.”

“If your notes are so accurate, don’t you know exactly?”

She glared at me, and then looked again at her notes.  “Six.”

            “How many times did he say he lost control?”

            “Two.”

            “What if in the initial interview you put those words in his mouth, and it wasn’t true?  What if he never lost control?”

            “I didn’t do that.”

            “If you had recorded the initial interview you could prove that?”

            “I suppose.”

            “Let’s say, hypothetically, that a detective did put words in a suspect’s mouth?”

            “OK.”

            “A tape recording would show that too.  Wouldn’t it?”

            “I guess.”

            “Thank you, detective.  No further questions.”

Doug and I were in the judge’s chambers the next morning at 8 o’clock.  Judge Stewart had instructed us to arrive an hour early to discuss jury instructions.  We waited for the judge in the outer office of her chambers, where her bailiff and court reporter had desks.  On a credenza were three large boxes of donuts, which probably helped explain Judge Stewart’s girth.  Doug, who was permanently hungry, begged the bailiff for a few donuts.  After he got down on his knees and panted, the bailiff laughingly offered us donuts.  Unable to choose between chocolate and chocolate with sprinkles, I had both.

Doug stood happily eating his third maple bar with his back to the open door that led to the judge’s personal office.  Unexpectedly, Judge Stewart appeared behind him.  I was about to say something when Doug said loudly, “Has anyone seen Her Immenseness this morning?”

Unable to help myself, I said, “What?”

“Her Immenseness.  Has anyone seen her?”

The judge cleared her throat.

Doug choked on his maple bar.

            “I’ll see counsel in my office now,” Judge Stewart said sternly.  Doug glared at me as he tried to breathe again.

            When Nate testified, he sat rigidly and showed little emotion.  Halfway into his testimony, the judge took a 15-minute recess.  I took Nate into a conference room in the courthouse hallway.  “Nate, you’ve got to show some emotion, cry or something.  You’re too stiff.”

            “I can’t.  When I get scared I freeze up.”

            “You’ll end up looking like a cold-blooded killer.  Think about how scared you are to go to prison, how it isn’t fair that you’re here.  And don’t lose your temper.”

Back in the courtroom Nate took his place back in the witness chair.  He tried to look more emotional—every once in a while he would take off his glasses and pretend to wipe his eyes—but it wasn’t working.  A lifetime of tough-guy training was not going to leave him now.  We made our points, but we didn’t make the emotional ones.  Nate’s cold demeanor was definitely hurting us.

I was relieved when his testimony was finally over.  Doug had made some points during cross-examination, but none that we hadn’t anticipated.  Luckily, Nate’s stoicism came in handy here too; he hadn’t lost his temper, or even appeared irritated.

           

In my closing argument, I decided to try something creative.  Because our case hinged on self defense, I thought, what if Terry had won the fight?  I decided to dramatize how easily Nate’s and Terry’s roles could have been reversed by acting as if I were the prosecutor in the case where Terry had killed Nate.

I took my glasses off looked at each of the jurors directly, and waited until the silence had become uncomfortable.  “I am the prosecutor in the case of State versus Terry McKenzie.  I am here to tell you why Terry is guilty of Manslaughter.  How do we know he is guilty?  First, look at his behavior on the evening in question.”  Prosecutors were always saying things like “the evening in question.”

“Terry McKenzie was going to fight someone that night.  You heard the witnesses: He challenged friends and strangers to fight, and every time, Nate pulled him away, settled him down.  But Terry didn’t settle down, did he?  As he drank more and more, his rage simmered, and in the end, Terry McKenzie turned to fight the only person left, his friend Nate Bridges.  As you’ve also heard, Terry has a history of violent behavior, as evidenced by the fact that he was on probation for assault.  Now Nate is a big guy, but he was never the aggressor.  So when Terry viciously attacked Nate, Nate was taken by surprise.  Terry got the upper hand in the fight, and then pummeled Nate.  He landed a solid blow to Nate’s head, which caused a subdural hematoma, which lead to Nate’s tragic death.”

I paused and put my glasses back on.  “All right,” I said, unsure how to handle this transition, “I’m me again.  Nate’s lawyer.”  I felt a little silly with the play-acting, but saw that the jurors were attentive.

“If you think that the scenario I just portrayed for you is possible, you have to find Nate not guilty.  Because Nate was defending himself, and if he hadn’t defended himself, he could have been killed  There are few things more elemental to human nature than the instinct to fight when attacked.  The law recognizes the legitimacy of self-protection in the concept of self defense.  If you think, and you must, that it was possible that Nate was defending himself, then you must find him not guilty.”

I gritted my teeth during Doug’s rebuttal closing argument, willing it to end.  He played it right, emphasizing that he agreed that Nate was initially defending himself, but that he had exceeded the lawful bounds of self defense.  Finally, obviously winding down, Doug leaned over the lectern and spoke with quiet intensity.  “Even if Terry started this fight, ladies and gentlemen of the jury, even if Terry was obnoxious, he didn’t deserve to die.  I urge you to find Nathaniel Bridges guilty.”

As the bailiff escorted the jurors out of the courtroom, I noticed an enlarged picture that I had earlier placed face-down on the corner of my counsel table.  Oh my God, I had forgotten to talk about the knuckles.  A winning point in the case, I thought, was that Terry’s knuckles were badly bruised.  I thought this was an important detail, because it showed that Terry was acting offensively.  I hadn’t talked about the knuckles too much during trial, except to have the pathologist identify the picture showing Terry’s knuckles, and that the knuckles were bruised.  I had done this deliberately, because I liked to save a little drama for my closing.

            I had completely forgotten to talk about the knuckles or show the jury the picture during closing arguments.  How had this happened?  The subject was in my outline of my closing.  I had practiced it.  I had even practiced how I would show the picture to the jury.  And I had forgotten.

            I silently berated myself as I gathered my materials from the counsel table.  Nate stood beside me, waiting for reassurance.  I walked out of the courtroom in silence.

I waited with Nate and his family in the courthouse hallway for the verdict.  I knew I should go back to my office and check my messages and return calls, but I also knew that I was incapable of doing this.  I also hoped that by waiting in the hallway, I could telepath to the jurors how much we cared about Nate’s case.  I also didn’t think my legs were willing to carry me down the stairs.

            At 5 o’clock, I went back to the judge’s chambers to check whether the Judge Stewart intended to dismiss the jury for the day.

            “What a coincidence,” the bailiff said.  “I was just coming to get you.”

            “What?”

            “The jury has a verdict.”

            “No, it’s too soon.”

            “They’ve been out all day.”

            “I’m not ready,” I said.  I was still optimistic, but I wasn’t mentally ready to hear the verdict.  I was mentally ready for bed.

            I shepherded Nate and his family into the courtroom.  Nate and I sat silently at the counsel table while we waited for Doug to arrive.  Finally, after five minutes that felt like an hour, Doug came in and sat down at his table.  I couldn’t look at him.
The judge came into the courtroom and the slow-motion verdict ritual began. My blood pounded in my ears. I gripped the edge of the table.

            I watched the judge’s lips move.  “…find the defendant, Nathanial Bridges, guilty of manslaughter in the first degree.”

The verdict punched me in the stomach.  I looked at Nate.  His face was sickly white.  His mother had gasped out loud when she heard the verdict and almost lost her balance as her knees buckled.  Nate’s father stared straight ahead, a muscle twitching in the side of his jaw.  How could it be?  I could not imagine feeling any worse, and I was not the one going to prison.  I should have tried to comfort Nate, but I didn’t have it in me.  I could only stare down at my shoes and wish to be swallowed by the earth.

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