Wednesday, February 20, 2013


They are permanent. They do not go away. Forgetting is impossible. You can only learn and avoid.

I was practicing in Tucson, Arizona. The papers were ablaze with the indictment of a man for allegedly murdering his wife. First degree type.

The factual claim was that he shot her with a shotgun in the living room of their home. I was still a  rope-climber, getting known bit by bit, with two homicide trials already on my resume. This one had the unequivocal scent of of a publicity ride, start to finish. I was young, hungry and brave. I was living in a warm place, surrounded by mountains with all aspects of life sounding in romance.

I, a Pisces, wanted the case. Ain't no mountain high enough.

I visited him it the jail on the night of his arrest. He was to appear in court the next day. "Indigent" was the kindest adjective to be attributed. The poor guy was lost, unable to comprehend what was happening to him. He lived on the outskirts of town, at the end of an unpaved road which met the desert. He explained that he had been cleaning his gun when it accidentally discharged, hitting his wife who was sitting across the room. You couldn't exactly get a patent on that one.

I would deal with the facts later. My Billy-The-Kid mentality was focused on the juice which would emanate from being his attorney. He would certainly qualify for a court appointed lawyer, but everyone on that list would be drooling for the case, same as me. The situation called for creativity.

During this initial meeting, it was obvious that he was impressed with me and would be thrilled to have me represent him. Playing to this sentiment, I proposed a scenario for his arraignment the following morning. I instructed him that, when the Judge asked him if he could afford his own counsel, he was to respond, "I'd like you to appoint Gerald Alch to represent me. I want to put my life in his hands."

He did as he was told and I was court-appointed to defend him. You can only imagine the voracious appetite with which the press devoured that one. Front page headlines. The reporters, whom I had befriended as a member of the Tucson Press Club, inwardly chuckled as they fanned the flames of my ambition and desire for maximum public illumination.

This was back in 1962, when Tucson had not yet been transformed by  metropolitanism and the pipeline of societal gossip was fast and furious. The combination of my testosterone and view of life as a challenging adventure made for a perfect storm of exciting ambition. My conscience was clean for, above all, I was determined to go all out, to devote all of my energy and dedication in my client's defense. The paltry sum derived from court-appointed fees was immaterial. I was doing what I loved and what I was damn good at. I have personal knowledge of famous, outstanding attorneys taking cases for little or no money, the lure of daily coverage being so seductive. No conflict here, please understand, for the investment of heart and soul emotion effectuates the lawyers best effort. He wants to win, quite feverishly, which, ultimately, is good for the client. Criminal defense attorneys will most easily understand this insatiable appetite for media coverage. Like the spots of a leopard. Goes with the territory. Juice.

I prepared, covering every aspect.. I went to the scene of the crime and mentally choreographed my client's version as to how the gun was discharged. I spent two full days at the Pima County Courthouse library immersing myself into a case-law review of everything in any way related to the elements of the varying degrees of homicide. An overkill to be sure, but completely consistent with my fanaticism for proper preparation. I had sought this one, recognized the inherent craved-for media attention it would inure and wanted to be ready, for my sake as well as my client's.

The trial commenced to a packed courtroom, which was to be a constant throughout. Tucson was still a relatively small town and this case was, as correctly presumed, an attention grabber. No ambushes took me by surprise. I was scoring my points. Preparation was paying off.

The papers afforded daily coverage and even the legal community was stopping in to catch a glimpse. I have always preached that closing arguments were the moment of truth. The lawyer meeting the challenge of persuading the jury to see things his way. A captive audience. The merchant of endorphins. Lord, was I ready.

SRO. Even wall space was taken. And I went to town.

Bullet notes were ignored. No need. I was soaring. Unplanned phrases presented themselves, straight from heaven. It happens sometimes, like that. And this was the ultimate litigator's high. I ended, as planned, standing behind my client's chair, with my hands on his shoulders, a tangible demonstration of my support.

I looked at the Judge and, with confident determination, proclaimed, "That's all I have, Your Honor."

Silence. I mean not a sound. The moment was frozen. After several seconds, it was the Judge who reset the play button.

"The Court will stand in recess for ten minutes."

Everyone  filed out with nary a sound. I stepped into the lobby, receiving congratulations which I politely dismissed as premature. I was beginning to settle down when the Court Officer advised me that  counsel were wanted in the Judge's lobby. He spoke to me, directly.

"Gerry, I would, at this juncture, be willing to accept a guilty plea to involuntary manslaughter and I have reason to believe that the prosecutor will not object."

The D.A.'s face was white, drained of color. He nodded affirmatively.

My mind went into overdrive trying to figure out just what was happening here. Was this the Judge's initiative and, if so, why? Had the D.A. somehow made this suggestion through the clerk?

And now, we come back to me. A kid, really, as I look back at it now. Adventuresome, living life as a movie with a background orchestra permeating every scene. My adrenalin was still roaring from the final argument high. I glanced at my watch. It was noon. There was plenty of time for the prosecutor to give his final argument, the Judge instruct the jury and give it to them with the effect of my closing still in their minds.

Reason was outweighed by the exhilaration of winning, which was so close, I could touch it.

"Let me discuss it with my client, Your Honor, and I'll get right back to you." But my mind was already made up. I was going for it. I wanted an acquittal.

I explained the situation to my client and his response was no surprise.

"What whatever you say, Mr. Alch, what ever you say."

The trial proceeded. The D.A.'s closing was professorial in tone. He used a blackboard and a pointer to present, in lecture form, the elements of the offense charged and how he had successfully met his burden of proof. Nothing dramatic or bombastic, in complete contrast to my presentation. When he finished, the Judge charged the jury but decided that it was too late in the day for them to begin deliberations and Court was adjourned until the following morning.

That night, my thought process was osmotically pulverized. My opponents closing had made sense, analyzing it without emotion. Was the overnight hiatus going to dissipate the effect of my emotional presentation? I began to experience the symptoms of a panic attack, but I indulged in heavy self-therapy and finally sleep got me through the night.

The jury deliberated for seven hours and returned a verdict of murder in the second degree.

To this day, I have not the slightest difficulty in remembering my reaction. "Guilt" doesn't do it justice. My conscience ravaged me. I had to deal with it subjectively and not let on as to my internal chaos. A trial lawyer is always on stage and must conduct himself consistent with his persona being constantly scrutinized. My discussion with my client was very, very difficult. But as I explained it to him, I was explaining it to myself. After all, the parole eligibility date between manslaughter and second degree was not necessarily substantially different, depending on what the sentence would have been on the former, and who can really figure a jury anyway, etc, etc. But it was a long time before I could fully  rationalize what had happened.

It had been a tough call. Had I taken the deal, I would undoubtedly have second guessed myself for letting a not guilty get away. The overnight factor between closings and deliberations will forever be the unknown factor and that uncertainty is indelible.

Till this day, I wonder what if.....

One saving grace: I did what I thought was best for the client and had given it my all.

His factual guilt or innocence had not been in play.

You're supposed to take your best shot and not look back.

Easier said.

You live and learn.

1 comment:

  1. Judge,
    Incredible situation and story. Yet I too would have followed the advice of going for the acquittal from the best, you!.