Split Verdicts Aren't Wins
The congratulatory phone calls started to arrive before I made it from the courthouse to my car. My client, a physician, had been found not guilty of rape. One newspaper quickly ran a banner headline announcing the verdict. The Internet broadcast the result immediately.
But I cannot call it a victory. While we beat the top charge in the case, the jury convicted my client of misdemeanor sex assault and tampering with a witness, the latter a felony carrying up to ten years in prison. As if to signal his intentions come sentencing day some eight weeks hence, the judge hammered my client by setting a $3.5 million post-conviction bond.
It is never a win to walk out the courthouse door without your client.
Trial is what game theorists call a zero-sum game. One side wins, and the other side loses. Trial is a huge risk.
Observers sometimes apply sporting analogies to trial. Defense lawyers debate what constitutes a win. I’ve heard lawyers say they won a case when they beat the most serious charges.
I recall a murder case several years ago that I tried twice. The client shot one of his wife’s friends in the head point blank during a heated argument in the family kitchen. We claimed self-defense. In the first trial, the jury could not agree on a verdict, so the case was mis-tried. In the second trial, the jury voted not guilty on murder, but then found the client guilty of the lesser charge of manslaughter with a firearm. The client was sentenced to a total sentence of 40 years in prison. It would be a peculiar form of sadism to call this a win.
Lawyers are competitors. The prosecution stands on one side; the defense on the other. The resulting combat yields deep passion. Like athletes, both sides seek victory.
The sporting analogy fails in the criminal courts. Trials aren’t competitions placing teams on a level playing field. The state presents evidence intended to prove a defendant broke the law. Sometimes the state has overwhelming evidence; sometimes the evidence is slim. Experienced lawyers know that trial is a matter of playing the cards you are dealt. When the other side is dealt three aces, you struggle any way you can to produce a winning hand, even if the odds are against you.
In the doctor’s case, the state charged sexual assault in the first degree, claiming he had raped a client during an office visit. This is the most severe form of sexual assault.
Another charge was sexual assault in the fourth degree. This involved simple unwelcome touching of an intimate part. The claim was that he had placed his mouth on her breast. The tampering charge involved the claim he had tried to offer the complaining witness money through a third party. The client denied all three charges.
My client’s DNA was found on the woman’s breast in a sample composed of saliva. His spermatozoa were found on her clothing, and my client’s DNA was found on her jeans, and on her body. None of my client’s DNA was found inside the woman.
It was a hard case for the defense. The cards dealt made the road to an acquittal difficult.
The evidence commenced. The jury heard about the DNA. The judge let them hear from two other patients who claimed the doctor had assaulted, but not raped, them. When we tried to bring to light the fact that the alleged victim had the DNA of other men not just on her, but inside her, a law known as the rape shield law closed the door in our face. I fumed that other accusers of my client could testify against him while the law permitted the fiction that the victim was without sin.
The state’s crime lab witnesses gave often silly testimony, testifying that when the lab was decertified and lost the right to submit DNA results to national databases, it was a result of a mere administrative error. And then a police officer destroyed evidence, leading the trial court to prevent officers from offering some testimony. The alleged victim offered testimony that was simply impossible to believe. Even the pastor who claimed my client offered money to the victim’s family looked like a fool: He gave pinpoint testimony with perfect recall of the times my client called him years earlier, but he could not recall the contents of John 3:16.
In criminal cases, the decision to testify belongs to the client. A lawyer can advise, but the client decides. The doctor chose to testify, fighting for his life from the witness stand. He testified that she came on to him with amorous intent. He was mortified by her conduct. He never kissed her. He never touched her inappropriately. His lips never touched her body.
One juror interviewed after trial by a newspaper in Manchester says that decision to testify cost the client an acquittal on the tampering charge. He told a reporter the client “hung himself” with his testimony about the preacher, who, the juror described as “all over the place” and incredible.
“I don’t know what I will do if the doctor is convicted,” the young lawyer trying the case with me said. She is new to the law. She’d not yet had to put her head on the pillow at night wondering how a client was adjusting that very moment to a first night in prison.
“How you handle hardship defines you,” I told her. “You never get used to seeing a man or woman led away in chains. You always fight.”
“I am not so sure,” she said quietly. There were almost tears in her eyes.
So did we win or lose this war on behalf of a doctor who maintains still his innocence?
Trial is no more a sport than life is a game. Sometimes all you can do is face the gathering darkness with all the hope you can muster. No one wins at the business of living. It is appointed to all once to die, the good book says.
The only conviction that sustains me as a criminal defense lawyer is simple: “The fight is all there is.”