I hate losing a trial. Period. Put me in front of a jury and I am competitive. I want to win. I'd cross-examine God if I could find him. Mother Theresa? She's a free loader. Yeah, sure, the wages of sin may be death, but I want those wages paid with interest when they're due. Even a junkyard dog needs to get fed.
But I wonder, sometimes, whether there are cases the defense is supposed to lose.
This is a heretical thought that I want to banish to some deeper recess. It makes me uncomfortable to see the words, and to confess that I wrote them. But a story in the San Francisco Chronicle puts the question front and center. It turns out a prominent California defense lawyer, Tony Tamburello, has been selected to serve as a juror in a murder case
The case turns on the defendant's claim of self-defense. In legalese, a person is justified in killing another when their own life is put in danger. State laws vary, with some requiring that there be no opportunity to retreat before the lethal strike. Other states relax that requirement. Whatever the standard, self-defense cases require close scrutiny of the moments leading up to the homicide.
Tamburello has defended men accused of murder. He knows the defense lawyer's silent ways: Obtain the arrest warrant and police reports. Outline them looking for inconsistencies. Locate witnesses. Interview the witness to see what, if anything, they can contribute. Study the forensic reports. Become familiar with police procedure and the science of police work. Counsel your client on the pros and cons of testifying. Select a theme from among the competing themes, a task worthy really of a Roman augur. And then, as battle looms, summon the courage and preternatural calm that it takes to wade into a room full of blood without drowning.
I love the work of trial. I liken it to an intellectual gladiatorial contest. By the time the gavel falls, I have thought through every potential move. I've studied my adversary, the judge, the law and the evidence. There are almost never surprises at trial for a prepared advocate. Bring me a war, I breathe. I expect to win it.
But I don't win every case. Far from it, in fact. In the weeks following a loss I am all self-hatred. What could I have done better? How should I have handled a difficult witness? Was I too harsh? Did I neglect the jury? The torture goes on until the next war looms. This solitary form of suffering explains, I suspect, my chagrin over the claim of some never to lose cases. I suppose I am jealous, although pride makes that admission hard.
I have longed for many years to be a juror. I want to see the contest from a juror's perspective. When I tell friends this, they snort. "Who'd pick you as a juror?" I suspect folks said the same to Tony Tamburello. I am also sure that he is put together in exactly the same was as am I. He doesn't go to trial looking to lose.
So how does he prepare for this trial, the trial on which he sits as a juror?
If he were the defendant's lawyer, Tamburello would be all warrior. He'd go through his own pre-trial ritual and then appear in the well of the court with his own silent warrior's cry. My cry? When fear paralyzes me as it often does I utter what I used to tell myself before the start of a distance race: "Today is as good a day as any to die."
But Tamburello is not a warrior this time. He is now a juror. He will sit ringside as the combatants exchange blows and then he will make a judgment about whether the state has proven its case. His role is not to win by any means that the law permits. His role is to come as close to the truth as a trial allows.
Tamburello has without question faced cases in which the state had a mountain of evidence. He no doubt found a way in which he thought he could win his case. He fought. He died. Today he still wonders whether he could have won each case he lost with a different, better strategy. Yet from the perspective of the law and facts, I suspect, some of those cases were not likely to be won by anyone.
I have a hard time accepting that conclusion. It sounds like a cop out. Gerry Spence says he never lost a criminal case. I'd like to see him in the well of a court in a gang rape, his client's DNA on the victim, his fingerprints on her clothing, his friends confessing and pointing the finger at him, and the victim describing what it was like to face death at his hands and survive. Win that case and tell me about it; I lost one on those facts, and my client serves 85 years as a result of my failure. I accept the overwhelming character of the evidence in such trials, but I cannot stop fighting. It is who I am; I know no other way.
How will Tony Tamburello make the transition from warrior to fact finder? Some part of me worries that being able to do so yields some deeper concession I am unprepared to make. That's because by sitting as a juror this very fine defense lawyer must be open to the possibility that this is a case the defense can and should lose. What would he do with such knowledge if he were defending the case? Would he even permit it to surface as a realistic possibility?
In the dark places of a holding cell, our offices and in our hearts we have painful conversations with clients about the options they face. We assess the strength and weaknesses of a case. We provide counsel to those who may well be damned before the trial even begins. But in a deeper place, at least for me, we never compromise and are always prepared to fight and die. How in the world can Tamburello leave the warrior's mantle at the courthouse door?