In re: Tony Tamburello: Are We Supposed To Lose Some Cases?

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?

Comments: (5)

  • Aside from the exquisite writing, I so love your b...
    Aside from the exquisite writing, I so love your blog thanks to the tidbits you throw in that almost seem an afterthought.
    You outline a CDL's workflow so succinctly; I am aware of each of the steps in a general sense, but that's not enough.
    A wise man once said that "organized knowledge of a subject and the interrelationship of its various parts is superior to disorganized knowledge just as a beautiful garden arranged with beds of flowers, paths and rows of plants is superior to a chaotically overgrown forest..." - R' Moshe Chaim Luzzatto in his introduction to "The Way of G-d."
    Posted on June 25, 2010 at 12:57 am by Moshe
  • Norm, your client is doing 85 years because he was...
    Norm, your client is doing 85 years because he was part of a gang rape and attempted murder - not because you lost. Your concern for your clients is so genuine, but put the blame where it belongs.
    Posted on June 25, 2010 at 12:20 pm by mythago
  • MythAgogo Girl obviously knows little of CT crimin...
    MythAgogo Girl obviously knows little of CT criminal jurisprudence. She must be a practicing attorney in Lala land, or some place out West where the 'practice of law' is done thru a looking glass.
    A conviction in CT means absolutely nothing, for the simple reason that there are so many tricks of jurisprudence employed by the State, including: the piling on of multiple charges regarding one alleged offense, the manufacture of evidence, misrepresentation of the so-called facts, the subornation of perjured testimonies of police officers and other witnesses, the utilization of low-life snitches and confidential informants with zero credibility, and--last but not least--the outright, blatant denial of Constitutional and due-process rights.
    Oh, I almost forgot: biased, incompetent, politically-connected judges and appellate justices with inappropriate judicial temperament are the last straw. Am sure I left out a couple of other aberrations of jurisprudence employed on a daily basis by the State. (Public defenders selling out their clients, anyone?) I think MythAgogo Girl should go post on Simple Justice, not here.
    Simple justice for the simple-minded!?!
    Posted on June 25, 2010 at 1:34 pm by William Doriss
  • William, are you accusing Norm of being dishonest ...
    William, are you accusing Norm of being dishonest or selling out his client? I respect his judgment enough to believe that if he thought the evidence against his client was manufactured, the testimony against him was perjured, due process was denied, he would have said so rather than referring to the "overwhelming character of the evidence". If you so distrust Norm then why are you posting here? Did Scott ban you?
    Posted on June 29, 2010 at 10:59 am by mythago
  • I was 'waxing eloquent', MythSeeker, and not neces...
    I was 'waxing eloquent', MythSeeker, and not necessarily addressing the specifics of the above case. As a non-attorney and a non-party the above matters, I am not necessarily interested in, nor addressing the specifics of any particular case; nor need I address them. Not my job, above my pay-grade.
    Norm knows I am not an attorney, but unlike SHG, has not denied me access to this forum. I guess I object to the 'law' and the 'practice' of law as being the exclusive domain of so-called lawyers, attorneys, state's attorneys, their supervisors, their superiors, judges, justices, public defenders and such others who feed at the public trough because they cannot or will not perform honest labor in the private economy.
    Henry Berry has raised this objection as well on this very forum.
    The role of the jury, for example--a panel normally composed of laymen and women and not attorneys--has been diminished to the point where it has become a bunch of sychophant spectators, hand picked by judges, prosecutors and defense attorneys thru tricks of voir dire, not obvious to the untrained layman. These co-opted panels more often than not do the Courts' bidding. These statements and accusations by me do not come out of 'left-field'. They are based on my own experiences and observations in real trials and real courtrooms which the civilian press has shown no interest in. (Not as many as you CDLs perhaps, but possibly more than Elena Kagan herself.)
    What happened to the Grand Jury? The role of the grand jury has likewise been hijacked and emasculated by the judicial branch--more and more of whose members are women, not coincidentally--not only in CT but throughout the nation. I detected a serious 'feminist' bias in the CT judiciary. This is a serious issue which no one wants to address,...BECAUSE, it's not PC. And yet, we almost never hear of the Grand Jury; it is hardly ever discussed. The role of women jurist vis-a-vis the overwhelming male defendant is never discussed on any forum that I am aware of.
    Do they still teach it [the Grand Jury] in law school, or is it now just a curious anachronism?
    I'm accusing Norm of nothing other than candor and writing a v. good, engaging law blog, one that is not overly technical and not totally incomprehensible to the layman of average intelligence. Sorry you misunderestimated me?
    Finally, Moshe's comment above I find food for thought. My response will have await another day.
    Posted on July 2, 2010 at 1:43 am by William Doriss

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