Sunday, May 29, 2011


This is a true story. One of the reasons for my emphasizing preparation for trial, over and over again, is to ensure a chartered course, which, by its very nature, seeks and reveals unexpected developments, in an attempt to obviate surprise. A trial, however, is an adventure, which, by its own definition, embraces that which cannot be anticipated. All of which is a stuffy and pompous way of advising a trial attorney to be ready for anything.

Two young men, in their early twenties, were charged with the murder of an acquaintance, stemming from a botched drug deal. The defendants had arranged to meet the victim at the center of their home town in Massachusetts, and drive to Maine to consummate a newly set up cocaine sale. The deceased met them, as planned, left his car parked innocuously on the street, and all three drove north, in a vehicle owned by one of the defendants. They drove to a pre-arranged location where the "buy" was to take place. In actuality, however, this transaction was a sham, successfully used to lure the victim out of state. The associate was shot dead, and his body was left in the grass, off the road. The defendants drove back to Massachusetts and went about their routine activities, their revenge having been taken.

Three days later, the deceased's body was discovered and an investigation was commenced.
At the same time, the local police had taken note of the unattended parked car, ascertained the name of its owner, who, of course, could not be found. They decided to have the car towed until further information was received. As the front of the vehicle was uplifted, a paper dropped from the driver's visor. It was a note, later determined to have been written by the deceased. It was dated the day of the murder. It was simple and to the point: "In case of no return, please question (the names of both defendants)." A signpost from fate. Incrimination not to be denied. The bi-state investigations quickly merged and the defendants were arrested and charged. The venue of the trial was the locus of the killing.

It was a typically beautiful Maine town. The courthouse was a landmarked, former church, with its original architectural decor fully intact. It was winter and, with snow everywhere, the magnificence of the setting was totally inconsistent with the alleged details of this imported homicide. I represented one defendant; a prominent Boston attorney, ten years my senior, the other. I shall call him "Teddy". I had arranged for a Maine lawyer to be local counsel, and he successfully moved for our admittance, pro hac vice. Turned out, Teddy had been the Judge's classmate at law school and they greeted each other quite warmly. Never a negative factor for defense attorneys. All counsel met with the judge, the day prior to trial.

The trial had engendered considerable publicity among the locals. Not an everyday occurrence in these parts, for sure. Add two high powered, big city lawyers, and gossip seeds of a spectacle are planted. This was to be a big deal.
The Judge explained that he was scheduled to take a long awaited vacation in eight days. Nothing would deter this from going forward as planned. Nothing.
Accordingly, the trial would proceed on an eight a.m. to eight p.m. schedule. As flattered as he was to have been assigned this case, His Honor was, mentally, Hawaii bound. Hey, good for him. This positive looking forward, coupled with his law school reunion with Teddy, was transmitting good vibes.
He ruled that the note, found in the car of the victim, would come into evidence, our objections going to weight rather than admissibility.
This was not the first time that I had worked with local counsel, "Wayne". We were of the same ilk: no pseudo bullshit, loving everything attending a courtroom battle, and always ready for a good laugh and a good drink. It was a delight to work with him. We had bonded.

The hectic long hours of the trial, as ordained by His Honor, soon began to take its toll on Teddy. He was older and his stamina began to deplete. Slowly, but consistently, at first obvious to only the trained eye. But, he was a veteran of these wars, and had been around the block often enough so as to be able to pace himself, accordingly.

For six days of marching double time, we worked our asses off. We fought like hell. The case was close as we were making the turn into the home stretch. I was focusing on the climax of any trial. The part I loved the most. It would always exhilarate me. The high of all the highs. The culmination of hard work--the payoff--where you didn't have to worry about a nonsensical objection from your adversary--where it was just you and your captive audience, both in the jury box and amongst the spectators. You were at center stage--the spotlight was yours alone. All that had been pent-up was now about to be called out. Your emotional peak was at hand. Each trial had its own, to be indelibly branded by this particular phenomenon. THE CLOSING ARGUMENT.

The Judge did his housekeeping thing and scheduled arguments for the following morning. A long, hard night lay ahead. The adrenalin just kept pumping.
The spectators had been steadily growing in number. Local lawyers were now regular attendees. Both parents of each defendant were daily observers. The trial had become a cause celebre.
The courtroom was packed as the Judge nodded at me to begin.

I was prepared and, thus, at my best.
As I finished, Teddy got the call.

As we arrived at court, that morning, Wayne and I had both noticed that extreme fatigue was now readily apparent in Teddy's appearance and demeanor. Man, that cat was done in. He was calling on his reserve tank which, by now, had its pointer on "E". We were close observers as Teddy began.
It soon became obvious that he was failing fast. He began to ramble, repeating the same points in a manner difficult to follow. And, he kept going on and on and on. Look, Wayne and I were bushed, to be sure, but adrenalin was kicking in nicely. Not so with Teddy. He was in a downward spiral and out of control. Something had to be done. Wayne and I looked at each other.We nodded. We were in sync. We began motioning to Teddy to "cut", to bring it to a close, using our index fingers in a slashing gesture across our necks. He finally noticed us, began to gather his papers together, and stepped closer to the jury. His voice ratcheted up in volume. He was summonsing his last gasps.

"And, so, ladies and gentlemen of the jury, it is now time for you to deliberate and decide the true facts in this case. And, when you get into the jury room and review all of the evidence, you will be compelled, you will be mandated, it shall be your duty, you shall have no choice, but to find these young men GUILTY AS CHARGED."

I shit you not.

Several things happened at once. A complete silence permeated the courtroom. This was followed by a  tortured gasp. The outraged parents of the defendants attempted to leap over the church rails and lunge at Teddy, with an unmistakeable intent to kill. The Judge, Teddy's ole buddy, grabbed his robe and wrapped it over as much of his face as he could, in a most feeble attempt to hide/muffle his maniacal laughter. Teddy just remained standing in front of the lobotomized jury, with his hands at his sides and his chin tucked firmly into his chest, obviously suffering the effects of the I Fu---d Up In Front Of The Jury syndrome.
As for me and Wayne, we looked at each other with, at first, a blank stare of horror, which, despite our best efforts to the contrary, began, inexorably, to dissolve into the precursor of hysteria.

And then came Teddy's lunge for redemption.
Looking at the Judge, the Patron Saint of Apology intoned,"Sorry, Your Honor, Freudian slip!"

That did it. The Judge, forsaking his Zoro disguise, emitted what sounded like "whoaghhh!!!!", bolted from his chair,  gargled "recess", and disappeared.
Me and Wayne, again, in complete sync, dashed out of the courtroom and ran up the stairs to the church steeple, fell to the floor and just kept rolling on our backs, finally surrendering to unrestrained laughter.
I know we weren't being kind to Teddy, but our own fatigue made us all the more vulnerable to  the mirth of the moment overcoming everything else.
Quasimoto was not needed to ring any bells; you could hear our bellows all over town.

The Jury was obviously persuaded by the eloquence of Teddy's closing. They were most obedient.
Both defendants were found guilty. Wayne and I rushed Teddy back to the motel, threw our luggage into the car and got the hell outta theya.
I indulged my week of depression, for a loss is still a loss. I vainly held out hope for appellate success, but that was a no-go. I did not rely upon Teddy's mishap to get back on track. I licked my wounds and eventually moved on.

What I did do was not  spread this around as an inside joke. That would, in no way, have a favorable reflection on Teddy's reputation.
Nor on mine.

You can never be certain as to what a trial may bring.

Being a criminal defense attorney has, at least, one thing in common with life.

You never stop learning. Never.

Saturday, May 28, 2011


Is "compassionate judge" an oxymoron? Does it connote a sinner or a savior? Is it something you are born with, or do you develop it, as your own experiences in life stake their claim? Does it make you an "activist judge"? And, by the way, that term has become a prostitute for argument; if someone disagrees with your ruling, that's what you are; if your words meet with approval, you are a strict constructionist, a true American, who's not gonna change a word that appears in the constitution. As if the framers, way back then, could envision today's society. Did Thomas Jefferson own an iphone or a droid? Does the right to bear arms include homemade plague? Was Samuel Adams a member of the Tea Party? Would the founding fathers have frequented Supercuts? (wouldn't have done them any harm).

Is compassion, in a judge, frowned upon, or even condemned by the "majority", whatever the hell that means? If media attitude is an accurate reflector, then the answer is a resounding "yes." In the eyes of too many, a compassionate judge is a criminal coddler.
"If he committed the crime, he's gotta do the time!"
Not so fast, ma man. Too broad a brush for me.

EVERY case is different when it comes time to decide an appropriate sentence.

Statutes have no provisions for compassion. Juries are specifically instructed to disregard it when deliberating. It won't make it through the first door of any penal institution.

For a judge to exercise compassion takes COURAGE. But, if a case, in all of its parameters, calls for it, then it should be utilized. If what is done is fair, then it is just.
And, no camouflaging it. The reasoning of the Court should be made a matter of record, for all to see. "I did what I thought was right, and here's why."
With regard to those most skeptical of my opinion, hypothetically, should they, or a family member, be convicted or plead guilty to a crime, will not their foremost prayer be that the Judge be compassionate?

For clarity purposes, it is not my contention that this is appropriate in every case, but when it is, a Judge should not be afraid to do what he/she believes justice requires, the inclusion of compassion, notwithstanding. If heat comes, take it. Comes with the job.

Thursday, May 26, 2011


I hate posts that begin with a disclaimer.
I begin with a disclaimer.

My answer to the question at hand is my personal opinion that was most instrumental in deciding that my only interest in the practice of law was to defend those formally accused of crime.  A trial of that sort was the fight of which I wanted to be part. And, yes, a criminal trial, its allegiance to due process and  professional courtesy, notwithstanding, is a street fight. The opposing attorneys go after each other with the gloves off. The envelope is pushed to the max. The intense pressure takes over your life from the beginning of preparation to the jury's verdict. Your loved ones must be very patient with your overriding and passionate goal: to win the case. Your ego flies the plane and wants the ultimate reward of a "W", for only that will make the intensity and pressure of the trial understandable, even admirable, and even congratulatory, for the "winning" attorney gets the ultimate prize, to wit, the "juice" of victory. His is the center spotlight. He has thoroughly prepared for this ma-no a ma-no confrontation and a not guilty verdict is the ceremonial crown on his head.
And, what of the client? Shouldn't he/she be the sole beneficiary of an acquittal and not second in line to the attorney?
The answer is "no" because a win for the attorney reaps the same benefit for the client. 
So, for a criminal defense attorney to unashamedly say, "I won it for me", the client is just as much the beneficiary.

The stock and most expected answer to this Post's question is, "Everyone is entitled to a fair trial, regardless of the nature of the crime charged. The constitution mandates this." This is technically correct.
In actuality, if the lawyer has that personal proclivity to be able to ignore the assumed guilt of the client, and, yet, be irresistibility drawn to the thrill of professional combat, ready to give his 100% effort, with no holdback, he's in it for the juice of winning, with the client reaping the ultimate and glorious consequence of victory. The constitution plays little or no part in this. That's the way it is, folks.

From the very first meeting with your client, you have a fairly reliable gut feeling as to whether or not, he has, in fact committed the crime(s) with which he is charged. He doesn't have to admit his guilt. Very, very, few do. For to do so requires your admonition that you cannot and will not call him to the stand for the purpose of maintaining his innocence. For, he would be committing perjury and you could face an indictment for subornation of perjury.

 However, the client's protestations of innocence, notwithstanding, you may be convinced, after getting your arms around the case, of his criminal culpability. Most attorneys, under such circumstances, are unable to give their 100% in a defense  effort.  I can readily understand this, and respect their feelings.
They should not, therefor, engage in criminal defense work, but , rather, move on to other areas of the law where this consciousness of moral challenge is decidedly less present, if at all.

"A criminal trial shall produce the truth!"

Nice in theory, and, by coincidence, might be correct.

In the world of practicality, however,  a criminal trial demonstrates which, of the opposing counsel, is the more effective persuader.

That is the art of excellence in a criminal trial.


Tuesday, May 24, 2011


I haven't got the cojones to invent this story and publish it as non-fiction.
It may sound immodest as hell, but, it is what it is, and it is the truth.
It happened this afternoon.

Went to and was treated by my chiropractor. His good health is incorporated into my nightly prayers.
Time for lunch. I am a loyal customer of a sandwich shoppe located in the same strip mall, and make this a frequent visit of a two-parter. Profuse but genuine exchange of friendliness with the owner. A good and decent, hard working, family man. Give me a million more like him.

He took my order and I sat at a table waiting for my pick-up signal. After a minute or two, a young woman delivered my sandwich. She looked to be in her early thirties, well groomed, very gracious and quite attractive.

I was hungry as hell so I dug in, ravenously. Nothing exotic, just a turkey sandwich, with lettuce, tomato and mayo, on a lightly toasted sesame roll. Man, I gotta tell ya, it hit me as the most delicious food I've ever tasted. When I finished, having nursed it down with a diet coke, I had to get another, to go. I returned to the counter and gave my order to the lady.

"You're a judge, aren't you?"
"I was. I'm retired, now."
"But, you were the chief judge of the court, weren't you?"
"Yes. Why do you ask?"
"About ten years ago, I was involved in some trouble and I had to go to court. I couldn't afford a lawyer. I was so frightened, I was shaking and couldn't stop crying. You were the judge. You saw through the whole thing right away. You interrupted what was going on. You just waved your hand and everybody stopped talking. You judged everything on the spot. You told me to calm down, that everything was going to be okay, that I should put this behind me and get whatever help I needed. You threw the case out. You judged everybody. You saw that I was a good person. I kept thanking you, but I never forgot that day. You're a good judge."

She had been very skimpy on the details, and I wasn't about to ask her anything, given the fact that she was emotionally involved in what she was saying, and we were in a public place.

"I'm truly glad things have worked out for you, and that I did what was, obviously, the right thing. What's your name?" She told me. "Mine's Gerry."
"Thank you, Gerry."
"No, thank you, ......"

I took my food and walked to the door. As I was stepping out, I turned and heard her say, to a man with a quizzical look on his face, "That's Judge Alch!"

Believe me, such incidents are rare, so excuse the liberty I take when I savor the DNA of it.
I earned my pay, at least on that day.

Friday, May 20, 2011


Everybody wants to be happy. Sporadically, over time, that happens.
Everybody wants to be happy all of the time. That,in my personal opinion, is impossible.

In the September of your years, reflections on your life are prompted by daily occurrences. Everything is seen through deja vu colored glasses. The intensity differs, but the emotional response does not. Remembering unhappy experiences is a bitch. Your degree of pain is determined by the degree of healing that has taken place. Past unhappiness can come from a variety of sources. To set forth a laundry list is to beckon depression. This post, therefore, deals with but one:  unrequited love.

A broken heart.

If you are a profound romantic, falling in love seeks all, or nothing at all. Half a love never appeals to you.
There's a new look in your eyes, a new spring to your walk. You can think or talk of nothing else, nor do you want to. You incorporate words of a favorite song into your everyday speak. Your friends smile at you with envy. Anything, everything, is possible. There are no dark tones. Your ambition is limitless. Watch out, world--here you come.

But, if something goes wrong, despite your determination to never let that happen, you reach for the other's hand; you try, desperately, to hold on, but the realization begins to emerge that you can't. You reject that notion and expend all of your energy in trying to revive and sustain this miracle that was. But, it's not within your control, and it goes by you, as you spin off the tracks. You keep looking back, retracing your steps, but second guessing merely pours salt on your severely wounded heart. Your life, measured by the calendar, continues on, in the complete absence of any healing process. You walk with your head down.

Years pass, but you never forget.
"Let it go."----You can't.
"Move on."----You can't.
Is this rational? The answer is not yes or no, it's who cares.

 You've put yourself on a raft, letting the tide take you where it will. You keep committing the fatal error of trying to rewrite the script, which inevitably leads to second guessing yourself. So, what's the cure?

Time. Let it carry this burden for you. Try to stop remembering, at least try. If you lose this battle, don't beat yourself up. The passage of time is your most effective medication. And, there's no co-pay.
 There will come a day when you suddenly become aware that the pain is a little less. Be grateful, and keep going with the flow. Will you ever completely forget? No. Will you be able to look back and not flinch? That's the goal.

In the meantime, try to forget to remember.

Thursday, May 19, 2011


I had been on the Bench for just over a month. I was encountering bumps in the road but learning from my missteps. I was surrounded by veteran court personnel who, being the good people that they were, were at the ready to help me at all times.
The matter before me was a violation, by a young man, of a Restraining Order which prohibited him from having any contact with a specified woman. Being in love, he consistently sent her flowers and drove by her house. Conduct not deemed dangerous per se, but, nevertheless, violating the R.O.
Indeed, on the morning of the hearing, the Probation Officer, assigned to the case, spoke to me in my lobby in order to helpfully brief me on the background.
"Judge, here's the story with this guy." The off-the record atmosphere encouraged him to spread it out for me  in candid fashion, for which I was most grateful. "Not a bad dude, but more a pain in the ass than anything else." Ah, the grace, beauty and precision of high level legal loquaciousness.

"The thing is, I would respectfully request that you ream him a new a-hole. I mean really scare the crap outta him. The victim will be happy and I'll keep a close eye on him."
I nodded affirmatively. "But, please, Your Honor, really lay it on him, heavy." I morphed into the Raging Bull, stalking his prey for demolition within the first fifteen seconds of the first round.  I squinted my eyes, and all but drooled in sadistic anticipation. My tongue would be as deadly as the whip of Zoro.

As I entered the courtroom, some of the spectators, perhaps sensing the atmosphere, leaned forward on the benches. The clerk immediately called the case. The defendant stood at the microphone,  flanked by a Court Officer, uniform starched and creased, at full attention.
A word about these two men: the defendant was in his very early twenties, and it was there for all to see that any vestige of self control had been completely overcome  by the imminence of doom that, most surely, lay ahead.  He was scared to death. The C.O. looked as if he had, the night before, exhausted most if not all of his beer of choice at his pub of choice. His mouth was so dry that tackling more than two syllables at a time would have surely caused lockjaw. Moreover, his goddamn hair hurt. Patience was not to be his strong suit, that day.

The clerk handed me the file. I glared at the violator and began my menacing message.

"Sir, listen to me, very, very closely." The accused began to visibly shake with fear. I decided to ratchet up the sneer and contempt volumes, but not too much, lest I look like the Judge that I'm not.

"You  have been ordered to stay away from and have no contact with......" I paused, for I had never ascertained the name of the woman he was bothering.  The seconds of silence grew longer as I desperately scanned the docket sheet.  The defendant began to whimper, causing the Court Officer to advise him to"shuddup!" The man began crying that he didn't want to go to jail, but rather to his mother. Not an unreasonable request, actually.
The longer my delay, the more his cries increased. "I wanna go home!"  The C.O. replied,"turn it off or I'll deck ya". Now, there's a guy who would take a bullet for me. The thought entered my mind that I was about to lose complete control of the courtroom.

At last, I saw a block on the docket sheet entitled "complainant" with a woman's name typed in: Jane Sturgis.
I was ready to continue...."no contact with Jane Sturgis! That means if you see her walking on the street towards you, cross to the other side and walk in the opposite direction. If you see Ms. Sturgis in a store, stop in your tracks and get the hell out of there, fast! Don't call her, don't write to her, don't send her anything, etc. etc. etc."
I was really whipping myself up into a lather---(and, by the way, who the hell ever came up with that phrase? and does he/she not need psychiatric help, fast?)---and, at the same time, the defendant could be heard moaning, over and over,"I'll do it. I'll do whatever the Judge says. But, how can I, when I don't even know who Jane Sturgis is? (screaming now) WHO THE HELL IS JANE STURGIS?"

Something had gone amiss. If this guy was making this up, he could pass a polygraph test administered by a security organization so secret that nobody knew its name. I almost paused myself into an eyes open coma.

Suddenly, my Clerk turned around and looked at me. His face was kind of a reddish green. In a tone of panic, he hissed,"Judge, Jane Sturgis is the cop who made the arrest. The victim's name is Susan Troy."

Without missing a beat, I continued,"And that goes for Susan Troy, as well. My words relate to both of them!" And, I then repeated my "don't" shpiel, all over again, segueing from "Sturgis" to "Troy". I was just as menacing, but this time, the defendant just kept nodding "yes", with a huge smile of relief.

That story made the rounds of District Courts for miles and miles. It was transformed into a legend talking point. And, whenever Officer Sturgis came into my courtroom, which she did, with great frequency, a fellow cop would escort her to sidebar, to make sure that I could see that she was o.k.
And, she would always say,"Thank you so much for protecting me, Judge Alch. I owe my safety to you." When I retired from the Bench, many years later, that story was still alive and well, and Officer Sturgis would always give me a heads-up on her welfare.

P.S.: six months after the incident, I was designated to act as "the emergency Judge" for a two week period. I was on call for all matters, in and around my Court's jurisdiction, that occurred between 4:30p.m. and 8:30a.m. One night, I received a call from the State Police that detectives, assigned to narcotics, needed a Judge's signature for the issuance of a search warrant. They came to my home at 3:15a.m. I read the supporting documents, which were all in order, and issued the warrant. As the police were leaving, one detective stated,"I just wanted you to know, Your Honor, that Officer Jane Sturgis is just fine."

I never did anything to make the Sturgis story go away.

Tuesday, May 17, 2011


What goes with these semi or full criticisms of the circumstances attending the death of Osama bib Laden?

"It was wrong to kill him if he wasn't, himself, using deadly force."

"The goal of the mission should have been to capture him alive,  and bring him to trial, thereby showing the world that American Due Process applies to foe as well as friend."

"Why the secret burial at sea?, why no release of pictures, etc.?"

Are you kidding me? We're talking about Seal Team Unit 6,  here; an elite part of the men and women serving in defense of our country.

Sent into harm's way for a tour of combat in a no-man's-land; then, if they are lucky enough to have survived, back home for a period of time, shortened by a recall to active duty, to be again enveloped by a hell of sand. And, they do this proudly. Where do we get such men?

I'm not criticizing the patriotism of the complainers, I'm simply opining that their sentiments are misplaced. I  stand in awe of the Seals. I thank God for them. When I read accounts of the degree of intensive training they went through, one dress rehearsal after another, preparing for every contingency, then meeting head-on and conquering unanticipated events, I am thrilled with pride. To me, this is a symbol of what the U.S.A. is all about.

One of my students personally knows a group of Seals, and he sums them up this way: if they're having a beer at a tavern, and a fight breaks out among other customers, they rise and vanish, even though one of them could have immediately neutralized the situation. The coolest of cool. They remain focused on who they are.  He brought one of them to a class and we chatted. Charming but not too talkative, unassuming, yet giving off an aura of strength and confidence. When he was leaving, we shook hands, and I said,"God bless you."

I was not embarrassed to say it; he was not ill-at- ease to hear it.

Sunday, May 15, 2011


Life throws many curve balls at you, most of which you cannot avoid. If they come in an inordinate number, and, as is their wont, wound your heart and your soul, they dangerously diminish your ability to even want to even try, to even stand your ground. You don't want to do anything except lie in bed and pull the covers over your head. And sleep, quite deeply, assuming the shattering risk that your dreams, if you do sleep, will throw back at you, those riveting images from which you wish to escape. With story plots, yet, which magnify and cruelly depict your steps of descent into the deep valley of depression, where you now find yourself.
And, words like "suck it up'","get back in the race", "just one step at at a time",bounce right off you, because you're not ready for affirmative action. You haven't the strength to break through the fog of fear which appears to cover the whole goddamn planet. Don't you deserve a little crash-crib woe-is-me time?
I say you do. And we're talkin'' unisex, man, 'cause the blues don't discriminate, baby. Put your hands on top of your head and let it out---for as long as it takes to drain the pus from the wound inside-----for as long as it takes to halt your falling deeper down. For only when you get to that place, when you know that you have hit bottom, that's when you can look around and begin to understand how you got there, what you did to get there, and how to get back on  the path  up to the exit door which is really the entrance door to your life.
And, don't expect it to be different than it was when you began driving the wrong way down a one way street.
There will be a difference, though, because this is a second take of a scene you've already played. It's more familiar and much less menacing. You know where the steps end and the sharp curves are. You've been there before. You got the do's and the don'ts of the rules of the road in your head, in a primo spot, where they can easily and always be seen. You've learned and remembered from your mistakes. You're ready to give life another shot----another chance. And your odds are better 'cause of what you've been through. You understand, still no guaranties, but now, your crashin' and wailin' and learnin' about where the land mines are, have given you a little bit of protective cover, a little bit of that essential called "self-confidence."
And you know that even if you still can't quite make it yet, the waves you make in your second try, will make you everybody's favorite in what you take on from that day and forevermore. Your emotional scars are combat medals  in your and in everyone's battle against the bumps and the blues. 
Wear them proudly. They mean you made it up the mountain, carrying mucho luggage, now marked "discardable."

At last, you're at the point at which it's the right time to PICK UP AND DUST OFF AND RESTART.


Several years ago, I had the honor of being one of the speakers at a roast of one of my peers and good friends. I have it on tape, and watching it, just now, prompts me to post it.
The name "Jack" is, of course, fictitious.

"Those of you who are aware of Jack's personal proclivities, undoubtedly shared my sigh of relief when I arrived here, tonight, and found that he had elected to come dressed as a man.

You are, however, unaware that he, several years back, was indicted for sodomy of a minor, under the age of six months. He, understandingly, chose to represent himself.
When the prosecution rested it's case, and the Judge nodded at him, indicating that it was now time for him to present a defense, Jack stood directly in front of the jury, and exposed himself.
He asked that his penis be marked as Defense Exhibit "A".
He, then, requested and received permission to pass it among the jurors.
He was ultimately acquitted on the ground that it was physically impossible for him to have effectuated penetration.

Allow me to reveal another deeply kept secret. Jack was born, one of twins.
They weren't ordinary twins---they were Siamese twins.
His father took one look at them and said, "Let's drown the ugly one", and that's how Jack learned to swim.
To further complicate matters, these were not twins joined at the hip, they were joined at the genitalia.
A furious, world wide search was commenced by his family, to locate a surgeon who specialized in this required type of separation.
At last, they found one whose skills were commensurate with the task at hand, and the procedure was performed.
Unfortunately, let us say that equity was not effectuated.
Which is why, to this very day, Jack is affectionately referred to, at least for identification purposes, as the BIG schmuck.

At the peak of his career, there was an uproar in the media, alleging that the State's Prison food was being dosed with saltpeter, in an attempt to suppress rampant homosexual activity. Jack volunteered to go undercover, as an inmate, and thoroughly investigate the situation.
Six months went by, and, no word from Jack.
When it was learned that he had been elected "Miss Collegiality" by the general population, it was decided to get him out of there---fast!
And, what an ugly scene it was; lifting and dragging him out, amidst his incessant screaming,"Let me go, let me go--I'm in love, I'm in love."

                                        It was a fun night, and nobody laughed harder than Jack.

Saturday, May 14, 2011


Ever see those high profile cases on t.v. in which the affluent defendant hires an expert to help with jury selection? They furiously whisper into counsel's ear, as they study each potential juror's demeanor during voir dire. A hidden microphone might pick up such analytical tips  as:

"I like the way he walks--as if the ground is uneven."( In actuality, one leg was shorter than the other.)

"There's something about him that catches my eye." (The gentleman's fly was open.)

"I don't trust her." (The lady's B.O.P. sheet reflected four convictions for embezzlement.)

Suffice it to say, I believe this alleged science falls far short of legal reliability.
There are, however, rare moments that provide valuable insight as to the mind of a juror.

I was trying a case in Chicago, Federal District Court. It was the third week of intense adversarial litigation.  As always, the Judge had admonished the attorneys as to how to conduct themselves, should they inadvertently encounter a juror  when court was not in session: make no eye contact and, of course, no conversation. Routine stuff.

One afternoon, during a recess, I visited the Men's Room.
I positioned myself at the urinal, when I heard sounds coming from my immediate right. They were musical in nature. It was a song. The melody was sheer improvisation, but the words were clearly discernible. They were sung in a light and cavalier mode.

Everything's gonna be alright; everything's gonna be o.k. 

The refrain was repeated in a deliberate, but oh- so- friendly manner.
I slowly turned towards the adjacent stall. It was a juror.
Remembering the Judge's instructions, I straightened my gaze and stood frozen in place. I had long since finished my business, but pretended to attempt a world's record in self-flushing until, at long last, the juror zipped up, washed his hands, and proceeded to the door.
As he was exiting, I heard, for the third time, that memorable melody which, to this day, remains engraved in my heart:

Everything's gonna be alright; everything's gonna be o.k.

As the door closed, I hurriedly patted my tie onto my chest and buttoned my suit jacket.
No, no, no---a well intentioned reflex, but one that missed the mark. I pulled (gotta finish this sentence, fast ) myself together (whew!) and bolted to share this heavenly clue with my co-counsels.
That evening, we drank more than ate.

The jury was out for a mere thirty minutes. Guilty on all counts.

Go figure. That's the point. Nobody can.

Wednesday, May 11, 2011


It was the first semester of my first year at law school. The administration was offering two student jobs, on a first come-first serve basis. One called for picking up the professors' lunch requests from the faculty lounge, at noon, bringing them to the deli across the street, and shlepping a huge box back to the school for distribution to the Profs, who were acting out the effects of a famine.
The other job was to be the attendance monitor for the freshman class.
I applied for and got them both.
They paid nominally, but something is better than nothing, and I arranged for the monies to be automatically credited to my tuition. The lunch job was a ball. It enabled me,  under the guise of official duty, to suck up to the Profs, who, eventually adopted me as a sort of a pet, to whom they referred on a first name basis. So, who cared if there were pickles in the coffee or mustard in the cokes. Let's put it this way: at grading time, it didn't do me any harm. The attendance job, however, presented a bit of a problem.
Even at that stage of my life, I tended to favor the underdog. Undoubtedly, a trait which led me to choose criminal defense work. I was ,also, quite aware that a probe of my own college attendance record would have surely led to a Justice Department investigation.
They had given me a huge chart. It reflected all the seats in the huge classroom, with the name of each student in each seat. Every day, at the beginning of  class, I was to open the damn thing and, by spotting empty chairs, ascertain and record the names of absentees. The results would be furnished to the Dean, on a weekly basis.
I couldn't do it. I needed the tuition help and had known, going in, what the job entailed, but the cop inside of me passed on this one. I couldn't do it, so I wouldn't. But this was my secret, and, to be sure, I went through the motions, every day. Even this sham made me feel like a yellow rat--a canary singing for the persecutors. For those first few days, I was a social outcast.

Each night, I would get calls, from those who had not been in class, thinking I was on the level, asking me to look the other way. Their excuses ranged from clever to sheer brilliance. My responses were always sympathetic.

"My water broke."
"I understand."

"My cousin in Somalia has the flu."
"I'm truly sorry."

"I swallowed a bee and have lost my sight."
"Frequently happens."

"I've got diarrhea. I can only come to class with a portable john strapped to my ass."
"Your seat is next to mine. Stay home."

"I was driving with my girl and shifted gears with my knees. I hurt myself."
"It should happen to me."

"They all laughed when I sat down to play. I didn't know the bathroom door was open."
"Embarrassment can be permanently disabling."

It went on and on, until the class slowly became educated and they rejoiced as they realized that I was their mole in the school's administration, and that gittin' it done my way was as easy as slicin' a hot knife through butta! Yessirree, Bob. Hot-Damn! Damn it all ta hell. Yahoo, Buckeroo! HiYo, Silver!

During the last week of the fall term, the Dean wanted to see me. It was set up so that I had to walk by all the faculty offices in order to get to theBoss, and I took note that all doors had been kept open. The Profs and the secretaries wanted the best front row seat they could maneuver, for the anticipated showdown at the O.K. Corral.

The Dean and I said hello, shook hands and we sat facing each other, across his desk. His face reflected deep concern. I looked like a true believer, ready to drink the cool-aid.

"Gerry, I've got a situation here, and I believe you're the young man who can set the record straight."
I maintained my joy-to-the-world, angelic face, as if my life's purpose was to spread the word of the Lord.
"The freshman class attendance records for this about-to-be- completed first semester show that there has not been one absent student, at any time. Not one. This has never happened before in our school's history. Now, do you have a problem explaining that?"

I didn't even pause. I shot back, looking him straight in the eye,"Dean, that's because there has never been a freshman class like this one. Never a class so diligent  in their study habits, so devoted to learning everything that's presented to them, so hungry to excel in their grades so as to bring credit upon your---excuse me Dean---our school, that religiously attending class was a necessary no-brainer." I snuck in a little breath and swallow, lest I get very dizzy and fall. "I stand in awe of them and salute them for the huge honors which they shall surely bestow on the school."

I was so sincerely and brilliantly full of it,  that, part of me fell sway to me. And, as far as selling a scam, my pool-room education stood me in great stead.

The Dean, having not yet broken his eyeball match with me, suddenly looked away. His face showed a hint of frustration which quickly dissolved into a  look of unmitigated pride. His smile signified that he had,  finally, come to appreciate that the solid excellence of his class was really a bestowal of honor and credit upon him.

And he was truly happy.

And I was his trusted student aide, who was instrumental in the entire thing.  As I walked from his office, I noticed that all the Profs were giving me a thumbs-up.

At the beginning of the second semester, I was unanimously elected President of the Freshman class, which numbered two hundred and twenty- five students.

It must have utilized some sort of absentee ballot vote, for only nineteen students voted in person.

The Dean didn't even raise his eyebrows. Hell, his trusted student aide had been in charge.

Tomorrow, I crack the safe.

Tuesday, May 10, 2011


From the very first day of your criminal defense practice, every breath you take, every move you make, plants a seed in the soil of practical life, which, as it inevitably grows, becomes your reputation, for better or for worse. You must take note of this and do whatever it takes to shape it into something positive. Generally speaking, its direction is permanent from the gitgo, so nurture it and avoid its jumping off the track. It precedes you wherever you go and influences the results of your every encounter, so attach it to your personal moral compass, as one becomes the other. It's in your hands, exclusively. At the end of every trial, smile and be courteous to the judge and the prosecutor, your internal feelings, notwithstanding. It gets around, faster than you think, as everyone develops a book on you.

I had been practicing for many years, and what I was, I would always be.
The headlines, in the morning newspaper, blared the details of a tragic incident the night before. Unfortunately, it was not a case of first impression.

An on-duty cop had encountered a young individual, fleeing the scene of a home invasion. He matched the description of the perpetrator which had been radioed to the cop, along with the warning that the suspect was thought to be armed and dangerous. The cop began to give chase, yelling for the young man to stop. At first, he continued to run, then stopped short, and turned around to face the officer. The cop screamed out, "You're under arrest!", whereupon the suspect answered with a profanity and began to extract, from his jacket breast pocket, a shiny silver object. The cop, thinking that he was about to be facing a gun, drew his own weapon and fired it one time. The suspect was shot dead. The object in his hand was a heavy flashlight. According to the printed story, members of the community were outraged and demanding that the cop be charged with homicide. The headlines were in large print and the local news media were heavily  concentrating on the story. It was, literally, the talk of the town, lynch mob style.

In my office, I read the paper several times. The cop had no history of on the job misconduct. I don't know why, to this day I don't, but I put in a call to the Police Commissioner. I was just following my intuition. I identified myself to his secretary. Surprisingly, he took my call. We had never met.

"Commissioner, I'm calling about last night's shooting incident. Please tell the cop that, if, at any time, he decides he needs a lawyer, I'll be happy to represent him for the donut. The only condition is that our conversation never happened. I'm not doing this for publicity."

He told me, in very sincere tones, that he truly appreciated my offer and would extend it to the officer. He also stated that he would conform with my request for confidentiality.
The matter, eventually, died down. I never heard from the cop or the Commissioner.

Six or seven months later, I was retained by a woman indicted for grand larceny. The police investigation had been headed by a very well known detective, one Jimmy Reardon, who had nineteen years in service, experiencing just about every type of crime situation you could think of. His face was one of a very savvy and hardened veteran, which he most certainly was.

He was present at the first pre-trial hearing of the case. After the assistant D.A., and I  had our discussion about discovery materials and motions to be filed, we reported to the Judge and another date was scheduled. As I exited the courtroom, I saw Reardon furtively gesture to me, indicating that I should follow him. He led me into an empty room marked "Jurors Only," and closed the door. He put a folder on the table, saying only "That's for you," and he left the room. The folder contained copies of the complete police file on the case---more important information than I could ever obtain from any discovery motion. To a defense attorney, it was the mother lode. Unbelievable.

I knew the District Attorney very well. We had tried several cases together when he was an Assistant D.A., before he ran for and got elected to the top job, and a solid mutual respect had developed. Reputation, doncha know. His name was Walter Flaherty
I could call him directly and request an off-the-record meeting. I did just that.

It was the two of us, alone, in his office. I explained how amazed I was at what Reardon had done for me and that, because of our friendship, I felt that I had to run it by him. I emphasized that this was all confidential, for, in no way did I want to get Reardon into any trouble. Walter looked at me with good-hearted surprise.

"Gerry, my boy, whatsamatta with you? With all your experience, you're still a naive a-hole."

I looked at him, quizzically. He continued. 
"Don't you remember that call you made to the Commissioner, months ago, offering to represent that cop who was being crucified in the media for shooting that burglary suspect? Well, as soon as he hung up, every cop in the city knew about it. And, Reardon was that cop's partner. These guys never forget--the good and the bad. So, take advantage of what you've got. As far as I'm concerned, I don't know from nothin' and this meeting never happened."
We shook hands. "See ya, Gerry."

I was able to plea bargain the case for a resolution of two years straight probation. The client was rightly thrilled.
Another new experience. They never stop coming.
To do the right thing, with no strings attached, is to invite good karma at a future, unknown time.
A merry-go-round.

Saturday, May 7, 2011

THE LAWYER OVERREACHES (Part Two)---see prior post for Part One

Somedays, you're merely so-so. Other times, you're good. There are days when you are excellent. And, there are days when you're off the charts; when the adrenalin takes command and you soar. Like an out of body experience. Your mind is razor sharp, in crystal clear receipt of the messages from your brain. You can see the words waiting to be pronounced. You constantly are increasing the drama of the moment and your confidence grows with the spontaneous way you ask each question and expertly use each answer as unanticipated ammunition. You're on the ultimate roll. This is what it's all about. This is why you have chosen to be a criminal defense attorney. This is the ultimate "juice." The reward for the non- glamorous hours of burning the midnight oil, dotting every "i", crossing every "t", making sure that you've left nothing undone in your quest for perfection in preparation. Too much is on the line for anything less. If you look good on your feet, this is the "why" of it. It doesn't happen every time, but it did on this day. It's a kind of magic, and if it ever happens to you, grab it, and hold onto it, tightly.

I slaughtered Sanders--destroyed him. All the information gleaned in pre-trial investigation spawned lethal questions for which Sanders was no match. If he attempted to lie about his bias, the evidence was on hand with which to decimate him. His answers would cause me to leave the mentally prepared questions and embark on a flight of improvisation, into areas which lent themselves to an interrogational carpet bombing. I get a little high just remembering and writing about it. Suffice it to say, his credibility was in a coma. One for the defense.

After the prosecution rested, I called to the stand my polygraph expert from Detroit. On direct, he testified just as he had during the pre-trial hearing. He emphasized his credentials as an expert, explained what questions he had used in the examination, and meticulously explained the results, i,e, the defendants were telling the truth when they denied any involvement in the homicide. The jury appeared to hang on his every word and, if faces can be read, they were believers. The cross examination was weak, questioning the reliability of the polygraph, which the expert easily deflected with facts and figures. Two for the defense.

The D.A. asked for a lobby conference. In chambers, he said,"Your Honor, we'd like to level the playing field, here. Attorney Alch has had his clients run on a lie-detector and the jury has been told that they passed. In light of this, we ask that our eye witness be able to take that same route. We're confident that he'll pass it and the jury should know that, too."

"The problem is," the Judge replied, "the case law specifically limits this option to the defendant, not to a witness." His eyes turned sharply to me. "Do you have any comment, Mr. Alch?

All my senses were under the influence ( in a legal way, of course) of the heady aroma of "a win," and this was pretty intoxicating stuff (there I go again). Add, to that, the fact that this was the first case in my career (I was no rookie) in which I honestly believed that my clients were innocent. Go live with that one. The truth was on my side. What, the hell, let it all hang out. In the terms of the old west, was I being Billy The Kid or Billy The Shmuck? (how about a separate post on that question alone?)

I addressed the Judge with the confidence of Clark Kent entering a phone booth.
"Your Honor, what's good for the goose should be good for the gander!"
Firstly, I don't believe I was quoting Oliver Wendell Holmes, not exactly, anyway, and, secondly, what the hell is a gander?

"I believe in my clients and, therefore, I am not afraid. I, subject to your Honor's discretion, have no objection to the prosecution's request."

The Judge put it all on the record and asked the D.A. to propose an expert whom they wished to  administer the test to Sanders. The prosecutor produced a resume of a retired New Jersey State Trooper whose active duty status was that of a polygraph examiner and expert. The trooper's credentials looked sufficient enough and, after all, the Judge would have a hearing to judicially determine that question.
The Trooper came to town. He looked as if he had been created by the Lord to to be the quintessential prosecutorial polygrapher. Should he ever do anything that might help the defense, he would fall straight to hell. The Judge accepted him as an expert and ordered him to test Sanders. I had thoroughly briefed my clients who, without hesitation, proclaimed "Whatever you say, Gerry."(let them never shift out of that gear.)

The test was run on Sanders. He flunked! Don't ever debunk the tooth fairy in my presence.
The truth had prevailed yet again. The jury was told the whole story. Three for the defense.

I did not call the defendants to the stand, with their consent ( whatever you say, Gerry), and I was about to rest my case, but the late hour caused the Judge to recess, putting that formality on the next day's calendar.

That night, it happened.

To be prepared for the unanticipated is an oxymoron. The best you can do is hope that your judgement mechanism is finely tuned and your scales of reason are properly aligned. Throw in a dash of good luck-a large one.

It was 7 p.m. I had just returned from dinner. There was a frantic knocking on my hotel room door. Take it easy, I'n coming.
It was my investigator. He looked wired. He began talking while still in the hall. I told him to step in and closed the door behind him. "What's wrong?"

"Nothing, nothing's wrong." He was almost yelling. "You won't believe this. I can't believe it myself--but it's real."

"What--what the hell is it?"

"After court today, a woman came up to me and asked me if I was on the defense team. When I told her I was the investigator, she told me that she knew something about the case but, until now, had been afraid to come forward." His volume went up a notch. "She was there when the murder went down. She saw the whole thing. Our guys were not the shooters--they weren't even there. It was just Sanders and two other guys who did the killing. She knows their names and where they come from. I've gone over it, again and again, I believe her, God almighty, I do. She's downstairs, in the lobby. Can I bring her up?"

I told him,"Of course," and while I was alone, I tried to get a focus on this thunderbolt. I couldn't. All I had were questions. Have I just hit a defense lottery? Was this some form of karmic reenforcement of my belief in the innocence of my clients? Where had this woman come from? Was she legit? Serious face time was in order. Another knock on the door and I was looking at her. I began by asking many questions. And then, listening. This cycle seemed never ending. This was to be an all-nighter.

She repeated, in substance, all that my P.I. had told me. Her name was Bobby Jensen. I had her repeat, over and over again, how and why she had come to us; what she saw; how she came to be at the crime scene, how she was able to identify the shooters----every aspect of what she had to say. I did not hesitate to, at times, look at her skeptically, and  go over her story again and again. Three hours had passed. I had mucho coffee sent up.

I had looked her straight in the eye. My face was, intentionally, one of a Doubting Thomas. My immediate instinct to disbelieve began to erode, very little by very little. I have always believed that if a person is telling the truth, one hundred Clarence Darrow's, in fierce cross-examination, could not shake his or her testimony. Conversely, if the person was lying, a first year law student could search for and destroy all aspects of credibility. So far, she seemed to be passing that test.

We took a break. I was walking a mine field, but no explosions, yet. I decided to intensify her interrogation. I explained that I was going to simulate her being a witness on the stand and conduct a direct examination. Followed by the most thorough and vicious cross I could muster. She said that she understood and was willing to proceed.

I called upon all my years of experience, all the hard learned tricks of the trade, and went into a direct.  I can't remember how many times. I tried to get her to just answer the question and not add anything. I told her to rely on my questions to illuminate the path she was to follow. Again and again, and again. Finally, given the time restraints, she was passable. Another break. More coffee, this time with danish. It was 2a.m. Now, the dress rehearsal for cross examination. I really tore into her. I did my best to emulate the most sadistic prosecutor in the annals of criminal jurisprudence. She stumbled quite a bit, but, regardless of the number of times we went through it, she did not waiver from the substance of her story. No punches had been pulled. She had stood her ground. It was 5A.M.

I went into the bathroom for some privacy--I didn't have a suite. It was decision time. I was, of course, tired but not spent. Still pumped. They say that if you're afraid, the blood drains from your brain, into your legs and you can't think. I hadn't reached that state, but I knew it was time, as the cowboys used to say, to ponder, real hard. I was convinced of her credibility, so how could I not put her on? My goal was always to prevail in a trial. I had chosen this line of work and, dammit, this was a once in a lifetime opportunity to not only acquit my clients, but also, to reveal who the real murderers were. (Perry Mason Alch?) I decided to call her as a witness. I told my P.I. to have her in court at 8:30 a.m. Just enough time left to shower, shave, brush my teeth and tend to the hair. The next step of official business was to tell my clients everything, answer their questions and see if they approved.
Yeah, you guessed it. Whatever I said was O.K.

When I got to court, I asked for a lobby conference. I told the Judge that I wished to call one more witness, whom I had not included on my witness list, and why. The prosecutor strenuously objected; a murder trial was no place for a last minute ambush. The Judge asked me for an offer of proof--what did I anticipate the witness would say. I did so. He deliberated for a minute, obviously considering the strength of this potential testimony, and weighing it against the D.A.'s claim of unfair surprise. He ruled in my favor, while telling the prosecutor that he would afford him a reasonable amount of time, via a recess, to prepare a cross. Back in the courtroom, the jury was seated and I called Ms. Jensen to the stand.

She came through. The all-night preparation had payed off. She gave every indication of truthfulness. The D.A. conferred with his assistants and requested a recess until 9a.m. the following morning. Granted. I thanked my witness, told her to remain available and went to my room to get some catch-up rest. I became religious, again.

It was 8:50 a.m. when I entered the courtroom. Suddenly, every nerve in my body electrified. All internal alarms went off. Countless negative vibes were suffocating me.
The courtroom was packed. I don't mean crowded, like it was every day, I mean wall to wall packed!
And to compound the situation, the "crowders" were all law enforcement: cops, Assistant D.A.'s, Deputy Sheriffs, Court Officers, etc. All bank robbers should have been alerted---it was unobstructed heist time. And to make matters worse, they were all rubbing their palms together, like the cat who was about to devour the canary.

The Judge took the bench and looked at the D.A. "Do you wish to cross-examine?)

"No, Your Honor. I wish, instead, to call one rebuttal witness."

"You may."

"I call Roger Tolan."

Into the courtroom walked an elderly man. He looked to be, approximately, 85 years of age. He walked very slowly. He was having difficulty carrying something. It was a huge journal of some kind, looking like it weighed a ton. The Court Officer took it from him and laid it on a small table which had been placed in front of the witness stand. He was duly sworn.

"Please, state your name, Sir."
"Roger Tolan."
"And, what is your occupation?"
"I am the keeper of the records at the House of Correction."
"And, what have you brought with you today?"
"A journal which lists those persons held in custody for a designated period of time."
"And,, at my direction, have you brought with you such a journal which covers the date of the homicide in this case?"
"I have."
"Would you please turn to that particular page and tell the jury if the name "Bobby Jensen" appears anywhere?"
"It does. Miss Jensen was in jail on the date of the shooting in this case, awaiting trial on the charge of prostitution."

I was about to lose complete control of my bladder. My vision began to fail. I wondered if it was physically possible to kick myself in the ass with my own foot. I looked at my clients. I could see in their eyes that their mantra had changed to "What the hell have you done, Gerry?" I was going to find a cabbie and pay him to start his cab while I fastened my mouth onto the exhaust pipe of his car.

The Judge asked if I wished to cross-examine. I walked to the witness stand and looked at the journal from which the witness had read. There it was, in plain English. My obituary. I was a freakin' goner.
I stared at the Judge, extended my hands, palms up, and, ever so slightly, shrugged my shoulders. He understood and announced that the court would, this being a Friday, adjourn until Monday, at which time both sides would present their closing arguments. I looked at my investigator. His pallor was dark gray. What could I say to him? The buck stopped with me. The clients were in neutral gear, not being able to fully appreciate the gravity of the situation---but they were catching on, more and more, second by second.

I checked out of the hotel and began the long drive home. I had blown the case. I had the case won, but I was too goddam greedy.Why was I such a self-proclaimed hot shot? I had put three lives in jeopardy. The clients and me. And how was I going to address this in my closing? Helluva way to end a career. When I was born, the doctor didn't know which end to slap.

This case was being followed by "people" in Boston. Had they arranged for the magical appearance of Ms. Jensen? That was a question never to be asked. I drove to the "office." They were all there and had obviously heard the news. I walked in, but before I could say a word, the voice barked, "You got yourself into this, you get yourself out of it." That was it. I was dismissed. As the King of England would always say: "oy vey."

I spent the weekend working on my final argument. I was good at this and it fell together very nicely.
Except, I couldn't think of any way to address my fatal error. Not a word came to mind. Not one single word. I did nothing else but think of what to say. Nada. I had to deal with it, but I kept drawing blanks.
Monday morning, during the drive back to court, my mind was still locked. I could think of no valid explanation.

Court was in session. The Judge looked at me. "Mr. Alch, you may commence your closing argument."

I walked to face the jury. My mind was still blank. Five seconds elapsed as I just stood there, saying nothing. The jury began to look at me inquisitively. Had I forgotten what I wanted to say? Was I having a stroke?  My mind was numb.

And then, I had an epiphany. Tell the truth. Just tell the freakin' truth!

I took a deep breath, relaxed as much as possible, and put my fate into the charge of my heart and soul.

"Members of the jury. I owe you an apology. I called a witness who lied under oath, who committed perjury. It is often said that when a lawyer calls a witness to the stand, he is vouching for that person's credibility. Well, I made a terrible mistake. I'm ashamed of myself. I am so very, very sorry. I beg you to believe me when I say that I stupidly believed her, and that I would never have risked my career and my life if I had thought otherwise. But, this was my decision, and mine alone. My clients played no role in it."
The words were coming more easily, now. The more I spoke, the less my burden was becoming. I went with the flow.  No script required.

"So, please don't hold it against them. From the moment this trial began, whatever I decided to do, they would automatically agree. Well, I let them down, just as I have let you down. Be angry with me, not them. They had nothing to do with this terrible mistake."
I was rolling, now. It's so easy to tell the truth.

"This situation reminds me of a time when a father took his son to Fenway Park to see the Red Sox play. At the bottom of the seventh inning, when everyone rose for the seventh inning stretch, a fight broke out in the bleachers, between a short man and a tall man. All heads turned to watch. When the father and son returned home, they were greeted by the mother who asked,"who won?" The boy said,"The big guy!" Whereupon, the father said,"She doesn't mean the fight, she means the ball game!"
I beg you: keep your eyes focused on the real issue of this trial. It's not whether Jensen lied. She did, because of my mistake. The question you are to resolve is whether the prosecution has proved my clients guilty beyond a reasonable doubt. And, I submit that they have not. And, here's why."

I then proceeded to present my prepared closing which emphasized all of the pro-defense developments during trial. The challenge had been met. I socked it to 'em.

The jury was out for fifty minutes. They returned not guilty verdicts for both defendants. Bobby Jensen was indicted for perjury in a capitol case, pleaded guilty and was sentenced to serious time. My clients were, understandingly happy, and I considered myself both naive and very lucky.

I learned a lesson that day.

Two other things. My investigator suffered a severe heart attack. He survived.

A few weeks after trial, I was discussing the case with one of the boys. I said,"It's a good thing that I got those guys off. First time I ever represented innocent men."
He just looked at me, as if to say,"You gotta be kiddin' me!"

True story.

Monday, May 2, 2011


Once upon a time, many years ago, there was a t.v. program (in black and white, I said "many") about a criminal defense attorney who never lost a case.  Each show ended with Perry Mason, cross- examining a prosecution witness, asking, "What did you say your name was?" The response: "I'm the murderer, your client is clean!" Case dismissed. I kid you not. He would not only exonerate his client, he would identify the true murderer.
That's for your historical perspective.

The case I'm about to relate is truth, not fiction--every word. Names have been changed or omitted because those involved, or their relatives, are still alive.

I enjoyed a fairly tight friendship with Freddy Lorretti,  a crime reporter for the then Herald American newspaper. Having a few drinks together meant many laughs--a fine time. On one such occasion, Freddy got relatively serious and asked if I was really as obsessive a Sinatra fan as I claimed. When I got through emphasizing my idolization of The Man And His Music, Freddy told me, thusly:

Two Italian Americans had been indicted for first degree murder. The victim was allegedly killed during a drug deal gone bad. The State's case was, in the main, predicated upon the testimony of one Sanders, who claimed to have seen the defendants commit the shooting. At trial, his testimony was impressive enough, so that, came time for closing arguments, a guilty verdict was inevitable. However, during his final remarks, the D.A. implored to the jury,"Let's get the Mafia out of our town!"
The defendants were convicted and sentenced to life imprisonment, without possibility of parole. Upon appeal, the case was overturned on the ground that the D.A's remark was so incendiary and inflammatory so as to obviate any chance of a fair trial. By this time, given the slow turning of the wheels of justice, the defendants had served four years in state prison, maximum security. The D.A. scheduled a retrial, bail was set, under the circumstances, the defendants posted it and were looking for new counsel. Interesting case.

Freddy continued: Sinatra had taken an interest in the case, intended to monetarily contribute to a defense fund and to make an appearance during trial.

At this point, I interrupted with a shriek,"I'm in!" And, so I was.
My new clients were made men. This was, therefore, somewhat like a contingent fee arrangement: I win, I live. I lose, I die. Looking back at it, the case had been steered to me by people, in their own fashion. Freddy, standing alone, was not that juiced. But, the "how" of it was of no consequence.

 I began to prepare. And, truth be told, given my chosen occupation, I was psyched.

My clients, per their ilk, were cooperative with me, almost to the point of being submissive. Whatever I proposed, their response was constant: "Whatever you say, Gerry". "Let's undergo transsexual surgery?" "Whatever you say, Gerry." Their smiles of friendship never, ever, waned.

I had the ultra important luxury of a private investigator who was well respected in the business. He, also, was an Italian American who, learning of, and having empathy for, what he perceived to be the cause celebre of the case, had  enthusiastically volunteered his services. I told him to reconstruct the life of witness Sanders from the date of the guilty verdict  to right now. Where was he living and what was his rent? How did he get the new car in which he was now galavanting, how much did it cost? How was he able to put food on the table? If he was working, what was his weekly take home pay and was it enough to cover his basic life's expenses? And, who had gotten him the job? I wanted a net worth analysis on the guy and see what the numbers brought in.
The P.I's efforts paid off. It seems that the D.A. had been, indeed, a friend in need. Under a camouflage of non-involvement, Sanders had a bread and butter incentive to never miss a meeting with his singing coach.
I now had my quiver quite full of cross-examination arrows. So far. not bad.

With mounting confidence, I began to research and develop a second ground of attack. The polygraph.
The state law, at that time, held that polygraph results of a test, run on a defendant, would be admissible under strict conditions. I would file a motion that my clients be administered the test by a polygraph examiner whose credentials satisfied the court. A hearing would be held to decide this issue. But, as always, if it looks too good to be true, it is--or--there's a kicker. The results of the test would come into evidence, good or bad. If I rolled the dice and the guys "flunked", I would immediately become uninsurable. So, having derived the benefits of representing bookies, and , having watched "Casino" for the thirty-third time, I decided to narrow the odds, as much as possible.

I contacted a highly respected polygrapher in Detroit and scheduled a dry-run, off the record, dress rehearsal  for my clients. The test results would determine whether I would proceed with the tricky- terrain procedure. What effect, if any, the four years of imprisonment would have, remained an unknown factor. "What's to lose,"I figured. Bad results, the whole thing never happened. But I had to know.

They both passed. Absolutely no indication of deception. I filed the motion. The prosecution declined, in any way, to participate in the selection of an independent polygrapher. A hearing was held. Guess whom I presented as the accredited expert? Surprise!---"Nathan Detroit". I fronted the expenses and fantasized the notion of O'l Blue Eyes owing me! Heh, heh.
My direct examination accentuated the examiner's credentials and expertise and the Judge ruled that he was, indeed, qualified. I then brought out that my clients had taken and passed the polygraph, and the judge ruled that this fact could be presented to the jury. The war remained to be won, but this was a major battle victory. Things were, very nicely, coming together, and, with the inevitable passage of time, the trial date was soon upon us. And, it began.

Sanders testified exactly as he had in the first trial.  I had obtained a trasnscript of his testimony and had put in many hours preparing for his cross examination. I have always believed that a criminal defense attorney must be 100% prepared for trial. Anything less would surely lead to disaster. Look at it this way: at the end of a trial, you must be able to tell yourself that you had been completely prepared and had made no errors of omission or commission. That's your safety net for survival. For, if you can't say that, and your client is convicted, you'll be at the edge of a nervous breakdown, so deep has been your heart and soul involvement. If you can pass that personal commitment test, a conviction will still be very hard to digest. You may have to crash into your crib for a few days, or barely be able to function, but you'll survive because you gave it your best. Very heavy stuff, but it's a burden you must be able to assume. Comes with the gig. I'm my own worst critic. That fact, notwithstanding, I was ready.
I rose to cross-examine Sanders.

To be continued.........