On The Stand

I will be on the witness stand today, an unusual role for me. My usual perch in a courtroom is in the well of the court, putting questions to police officers, doctors, witnesses of all kinds. It is easy to rattle just about any witness. The ones you worry about are the practiced, unflappable witnesses who have an answer for everything. They almost never tell the whole truth and nothing but the truth. Lies are seemless; the truth is often ragged.

Five, or was it six?, years ago, I represented a man who was accused of raping his three young daughters. He denied the claims, and we went to trial. A jury concluded that most of the allegations were true. My client was sentenced to a long period of imprisonment. Today he attacks me with a new lawyer, hoping to show that I committed errors so egregious in his case that he should be granted a new trial.

Such claims are common in the criminal courts. They are called habeas corpus proceedings, and a petitioner is free to bring as many as he likes in the state courts of Connecticut so long as he is in custody. What's more, a person bringing such a petition gets the service of a free lawyer. free investigator and free experts. The theory is that if a person's lawyer screwed up the case so badly as to deprive the man a fighting chance to avoid a guilty verdict, his Sixth Amendment right to counsel has been violated, and the case should be tried all over again.

From time to time, a petitioner actually wins one of these proceedings, although the event is rare. Trial lawyers practicing criminal defense expect to be called to the stand from time to time to give an account of their conduct in a case tried long ago. No one begrudges his former client's hope for a new trial. We stood by the accused before he was convicted. Post-conviction proceedings targeting defense counsel are simply the same fight, only this time we are the enemy.

Prosecutors are wearied by these claims. Nothing prevents a petitioner from filing as many as he likes. Unlike the federal system, which imposes rigid and inflexible guidelines for the filing of a petition, a person can file a petition long after a conviction. I was once questioned about a brief I wrote 12 years earlier.

What does surprise me is how little thought goes in to preparation of the typical petititon. A new lawyer is assigned the file -- it is rare that experienced trial lawyers handle these petitions -- and they troll through it looking from the perspective of hindsight at how things could have gone differently. A petition is drafted, and the case is set for trial years later. In many cases, the lawyer who actually tried the case is merely subpoenaed to court and asked questions. It is rare to be interviewed before testifying. Try taking the witness stand some time to testify about events that took place half a decade ago. It's difficult.

In today's case, both lawyers have done a good job of preparing. I spoke once or twice many months ago to the lawyer now representing my former client. She seemed to have a reasonably good grasp on what the case was about. And last week, the new prosecutor called, too. She was not surprised to learn I had been subpoenaed to trial, although she was a little shocked to learn that the lawyer who was summoning me to court had not called to discuss scheduling or my testimony. I was not suprised. This is par for the habeas course.

I recall the case as one of extraordinary difficulty. Three young girls claimed their father abused them. The children were placed in DCF custody. There was no medical evidence to support the claims. When one of the girls faltered in her testimony and did not repeat her allegations, part of the case was thrown out. I cross-examined all three, but gingerly, as is the manner of handling young children in court. I recall the case because of how much it hurt to question these children. My client sat beside me, and their mother, aunts and uncles were in the spectator gallery. There was little love left in the room; all that remained was a sullen and angry sort of pain.

After the case, I ran into the judge who presided over it. He was a former law school professor of mine. "You did a fantastic job with that case," he told me. I was disconsolate. My client was convicted and will most likely die behind bars. It does me no good to hear how well I did with an impossible set of facts when my client suffers. I thanked the professor, glad at least for the kind words. I don't expect kind words today.

Would I try the case differently if I had the chance to do it again? Probably not, although my former client's new lawyer thinks the case could better have been tried. I'll be listening to her questions carefully today. It is a rare gift to be confronted with a transcript of something you have done in the past and to be held accountable for it. I view this as a great opportunity to listen and to learn. If I erred, show me the error so that I will not commit it again. And if I did not err, well, I understand what it's like to stand at midcourt as the buzzer is about to sound: you close your eyes and heave the ball toward your opponent's net, hoping against hope the ball wiill drop just so.

That's habeas corpus, a legal proceeding in which miracles are expected daily.


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© Norm Pattis is represented by Elite Lawyer Management, managing agents for Exceptional American Lawyers
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