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.


  1. Dear Judge Alch.

    Thank you for continuing to contribute to the learning experience. Honestly, I'm sadder for your colleague than for the outcome of the trial. I will continue to check in, reading whatever gems you have to offer to us. Hope your summer is going well!

    Ingrid Persson

  2. Dear Judge,

    What an unexpected ending? I love your post. It is so informative, interesting and very fun!
    My heart goes out to Teddy.
    But from defendants’ perspective – no recourse for them? Is it possible that a non-guilty verdict would have been retendered had it not been for the closing argument …