Baseball, Mountaineering and Trial

My trial season has ended for the 2009/2010 year. At least I think it has. Things can change in this the Land of Steady Habits with the swinging of a gavel. But odds are I will not face another jury until September, when I retry the same murder case on which jurors could not agree  this past September. I say self-defense; the state says murder. A jury decides.

It has not been a good year for me. I had a run of guilty verdicts unlike any I have ever had before. I lay in bed at night wondering whether I'm washed up, or whether I've become too arrogant to be trusted by jurors. In each case I tried this past year, I was able to accomplish what I wanted to do with the evidence. But the evidence, well, it kept on coming against client after client, a tsunami of grief that buried my clients and my ego.

Too stretch a metaphor that has been used too often this week, I can pitch a perfect game only to have the umpire blow a call.

Take the kidnap, rape, murder case in which the state had no body to show the jury. I went toe to toe with a couple of determined prosecutors on that one. I thought I had that case until the judge permitted another rape victim to testify that my client had done her in the same manner he allegedly had boasted of killing the missing victim. The umpire mattered in that case. When jury selection started, the judge assigned the case was, all the lawyers agreed, unlikely to let the evidence of the other rape before the jury. When that judge fell ill, a new judge was assigned. We all agreed she was likely to let the jury hear this evidence. The strike zone changed. Umpires matter more than we like to admit.

Or how about the case of a man accused of fondling a niece many years ago? There was no physical corroboration of the claim. Indeed, the allegations only surfaced many years after the acts are claimed to have occurred. The complainant, now a composed high school student en route to college, testified well about things she said had happened when she was seven. My client's denial was not believed by the jury. This jury was told absolute certainty was not required. They made a judgment call. What if they got it wrong? There are no replays when it comes to credibility. Like baseball, the human element matters at trial.

Or this week. My client was convicted of a residential arson. He had confessed to his best friend and his girlfriend, and was seen heading towards the building in the middle of the night with a bottle filled with gas. Moments later, he was seen running from the area of the blaze, the sky back lit with an orange flickering light. This evidence glowed like the tip of Freud's damning cigar.

When I try a case well I want a good result. I suppose the surgeon says the same when the tumor has spread too far, too fast and the patient cannot be helped.

I try a great case. I know I do. And I am confident enough to face any lawyer any time in any courtroom with the bold knowledge that he or she shall have Hell to pay for trying to bring my client down. But what, I sometimes wonder, if bringing them down is bringing them to justice? I sometimes wonder what would happen if a lawyer, like Gerry Spence, could truthfully say he never lost and then had the audacity to take any case that came his way? I called Spence many years ago to ask him to come into a bad, drug-related murder. I wanted to see his magic first-hand. "Describe the case for me," he said. So I did. "I can't win that case," he said. His response was a non sequitur that troubles me still.

A criminal defense lawyer who could never lose is an interesting thought experiment. No bad deed would ever go punished or deterred through the criminal justice system. He would be the lawyer everyone wanted. He would simply let the law of supply and demand drop the best paying client in his lap, and would laugh all the way to the bank.

After a loss, I sometimes sit late at night and wonder whether a better lawyer would have obtained a different result. This form of torture goes on sometimes for weeks, until a new case or controversy laps over the shore of discontent.

It helped the other day when a lawyer I respect called for advice on a case. She had attended a trial I lost. "You were great," she said. "But I lost," I replied. "How great could I have been?" We shared the awkward silence that came of the recognition being the Devil's advocate means wearing the dark hat in a world in which people crave the light.

Trial is a lot like baseball, after all. Things happen fast. Judgments get made. Sometimes the judgments are wrong. When it comes to a jury's decision, we don't second guess their credibility determinations. Appeals are hard to win.

But unlike baseball, the teams aren't mere talents squaring off in a contest of skill. Were it so, how much happier I would be. I will second chair no one. No, trial tests the state's case. If trial is a sport it is less baseball than mountaineering. The defense lawyer is armed with wit, skill and training to face the mountain. You can deftly scale a cliff and struggle to the peak. But after an exhausting climb, you are still standing on the mountain. When the mountain is evidence against your client, you can jump up and down with all the might and fury of twenty lawyers. But the mountain doesn't move. Sometimes the evidence speaks, and you cannot silence what it says.

That is a truth I struggle to hear, fearing in part it may be justification for having failed to win acquittals for clients who pinned all their hopes on me, only to have been swept away by an avalanche.

Begone navel-gazing spirit of woe! A new day dawns. I am due in court soon to discuss the state's seizure of drugs and evidence from my client. Sure he had the items. He wasn't supposed to have them. But the police were wrong to search him in the manner in which they did. This evidence should be suppressed; the client should be set free. A new mountain beckons. I find a toe hold. Damn this mountain and the insufferable fate that chains me too it. I will beat this one. I know I will. Or I will die, yet again, trying.

Comments: (2)

  • A criminal defense lawyer who could never lose is ...
    A criminal defense lawyer who could never lose is an interesting thought experiment. No bad deed would ever go punished or deterred through the criminal justice system. He would be the lawyer everyone wanted. He would simply let the law of supply and demand drop the best paying client in his lap, and would laugh all the way to the bank.
    The same could be said of the "criminal defense lawyer" who took only cases he knew he could win.
    Posted on June 4, 2010 at 1:45 am by Mark Bennett
  • Sometimes THEY won't let you win because THEY don'...
    Sometimes THEY won't let you win because THEY don't want you to win, as in that much talked-about baseball game where the umpire (apparently) did not want to see, at the fifty-ninth minute of the eleventh hour, the pitcher walk off the mound with a perfect game. Inquiring Minds suspect the umpire was, shall we say, biased?
    OK, feces happens, but apparently the review process is a paper-tiger, as Baseball Commissioner Bud Selig so far had indicated his unwillingness to overrule the umpire's call in the face of clear replay tapes. Sounds a lot like the review process in our appellate courts.
    Hey, these justices are talking about ME; no, they're speculating about me, but I am not allowed to talk or even attempt to clarify the issues being discussed. Makes no sense, and neither does the umpire's wrong call the other day.
    Things are apparently no better in Russia. See N.Y. Times today. There, we are not surprised. We are supposed to be better than that, but are we?
    Baseball still makes more sense than the criminal 'justice' system, which is totally incomprehensible to many of us. People want to believe in the wrong calls in spite of clearly established 'rules' and the 'evidence'. Anyone who wants to be an attorney or a judge should have his head examined. Some should have their heads handed to them. That's why baseball games are so popular and nobody wants to attend a criminal trial, not even so-called journalists.
    Posted on June 4, 2010 at 2:46 am by William Doriss

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