THE LAWYER OVERREACHES (Part One)

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.........