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.

1 comment:

  1. question bears repeating...when are you going to publish a BOOK of these tales? I'm talking printed and bound ( with e- copy rights, of course)