Of Rats, Sinners and Trial Lawyers
I just lost a tough case and, as in any loss, I am bitter about it. My client faces 60 years for the shooting of a rival gang member in Hartford’s North End. We tried the case twice, the first time to a hung jury. On Monday, a jury returned a quick guilty verdict.
The case turned on the testimony of two witnesses, one a man who claimed to be the driver as my client mowed down the decedent with an assault rifle. This witness was facing charges in some 14 attempted and conspiracy to commit murder charges, a man who had already pleaded guilty to another murder and had been sentenced to 42 years. He’d struck a deal with the state, hoping for leniency in exchange for “truthful” testimony.
The other witness was a woman who claimed my client had shot at her one night. She claimed to have been returning home from a birthday party one night when two men opened fire on her for no reason at all.
Hartford’s North End is much like Hobbes’s state of nature: Life can resemble a war of all against all; it is too often nasty, solitary, brutish and short.
All criminal defense lawyers hate cooperating witnesses. We call them “rats” who are willing to do, or to say, anything in order to gnaw away at the chains binding them to a prison wall.
The state, by contrast, loves what they call “cooperators.” There’s even a set argument prosecutors use in asking jurors to believe these witnesses. “The state does not go to central casting for its witnesses. Bad men associate with other bad men,” or some such.
Try enough cases, and these arguments sound trite, even tedious — there are only so many ways to argue the recurring crises we call life.
So in this case, I dug into the cooperator as best I could. You’re a murderer, aren’t you? You want this jury to believe you so that the state will set you free to kill again, isn’t that right? You shot children at a parade, didn’t you? The state was objecting during these questions, but defense lawyers learn early to ignore the sound of a prosecutor’s voice.
The press, of course, rarely reports on a cross-examination. It’s as though they are trained to hear only the obvious. No matter how foul the witness, the next day’s report is typically a straight narrative of whatever the prosecution’s witness said in response to the prosecutor’s questions.
I’ll concede that watching a trial is a lot like watching ice melt on a cool day. Yes, the shape of what remains when time passes differs, but the shape changes in slow, almost imperceptible, ways.
In this case, I hammered away on all the people the rat had shot at, all the folks he tried to kill. I sported with him when he seemed to have forgotten one of his homicides. But he never lost his cool. He was a cold-blooded killer; what would a little cross-examination do to him.
The other witness, the woman who claimed my client shot at her, was another story. I walked her through the testimony she had offered at this trial, and a previous trial, and a grand jury proceeding, and her sworn statement to the police. She could rarely assert the same detail twice under oath. If the jury believed a word she said, I suspect they’re also willing to purchase a certain bridge in Brooklyn.
To the newspapers, however, she was an innocent woman shot at by my client for no reason, a random victim of urban terror.
The state was methodical in this case. Witness after witness recast the crime scenes, but shed no light on whether the state’s star witness, the rat, was telling the truth. The jury sat wide-eyed, stunned into something like submission by the sheer randomness of it all.
The first time we tried this case, the jury could not agree. The state failed to meet its burden of proof, but still got the right to try all over again. Double jeopardy does not bar such a re-prosecution, although it should.
At the second trial, a different jury voted guilty, all 12 of them. After the jurors left the room, we asked for an immediate sentencing. We wanted no delay. We are eager to take an appeal.
“I’m mindful,” I told the judge, “of what Jesus said to Judas Iscariot on the night Jesus was betrayed: ‘What thou doest, do quickly.’” The judge did not impose sentence on the spot. We expect a 60-year wallop come judgment day.
I read a comment one of the jurors made on her Facebook page after the jury was discharged. “I wish,” she said, “I could say I was happy that my jury duty is over.”
I wonder if that’s because she knows that at some level her verdict was the product of guesswork. Did she really believe the testimony of a killer looking for mercy? Did she buy the testimony of a woman whose testimony changed each time she took the oath? Or did she merely succumb to terror?
I’m a sore loser. I am the one who met with my client in the lockup moments after the verdict. The guards were quick to strip him of his suit, to clothe him in an orange jumpsuit and to drape him in chains.
The case read in the papers like a tale of kids killing kids for little reason. I had hoped the jury saw something more nuanced, more frightening, in court: witnesses too unreliable to support a guilty verdict.
“Why do you take such cases?,” a friend asked.
How could I not, I wanted to respond. Whatever the violence that ended a life in the North End years ago, nothing in the trial just ended brings back the dead. No rough justice, no sense of accountability, rights the wrong.
Instead, another life was destroyed.
Forgive me if I came to care for the accused, and to regard him as a family member, and a friend. I read once that all have sinned.
I lost a sinner the other day, and for that I grieve. The pity is that few who read this will understand that, or even try to understand it.