Do we bear witness for our clients at trial?
The literal answer is no. If we were witnesses, we would not be trying the case. The Rules of Professional conduct see to that. We're not supposed to vouch for our clients either. A prosecutor who does so faces the prospect of a mistrial. On the other hand, the defense bar, in criminal cases, and the plaintiff's bar, in civil cases, spends every waking moment trying to figure out how to vouch without getting caught.
But something even more fundamental takes place than mere vouching. At trial the line distinguishing client from lawyer becomes blurred: Insult my client, and my blood boils. Why is that? How do I become my brother's keeper?
I ended 2009 on a low note. I lost a couple of cases, one civil and one criminal, and I hurt. I groused, moped and wondered aloud whether I had much more advocacy in me. And then yesterday morning, I attended the final status conference in a case set to begin Monday. Now that new battle lines are drawn, a half-empty cup now seems filled to the brim. It is Friday, but a fight beckons. Monday seems a long way off.
My client is accused of the kidnap, rape and murder of a young girl in 1996. He was charged in late 2008, based almost exclusively on the say-so of four jailhouse snitches. The alleged victim is missing. The state says she is dead. We've located one classmate of hers who says he saw her in another state years after she disappeared. This once-cold case is now set to be raked over a courtroom's coals. Hell-fire smells good some days.
I represent a man accused of horrible crimes. The state intends to present evidence of his admissions to others to show that he is guilty of the crime. We will give the jury reasons to doubt the words of those testifying against him. I've cross-examined one of the snitches before in another murder case a few years back. Funny how the same bad pennies keep turning up in one case after another. I want another piece of this man. The refrain from Sympathy with the Devil comes to mind. Who is the Devil here?
Of course, the fight does not really begin Monday. We start jury selection next week, a process that is expected to last two weeks or more. Unique among the states, Connecticut requires what is known as individual sequestered voir dire: each prospective juror is questioned outside the presence of all other prospects. It is a slow and tedious process. The federal courts use group voir dire, and a jury can be picked in a day. I've tried many cases in the state and federal system and I see no difference in the quality of juries. So for several weeks I will court strangers, until the polite smile on my face feels like a painful grimace.
Evidence in this case will not begin until after the jury is selected, in late January. Between now and then I will undergo the oddest transformation of all, one friends and I refer to as advocatitus: I will become something more than myself. My client's interests will become mine, and I will stand in for him before a group of strangers, becoming his voice. In the process some part of me will come to believe that his fate is my fate. Sometime in February he and I will sit together awaiting a verdict, and I know, well before the moment comes, that I will look to the jury to determine not just my client's destiny but my own.
And so another year begins. Almost in spite of myself I am drawn into another dark dance. A stranger in need has come my way; the line between his interests and mine will blur. I will sacrifice my own peace and peace of mind to become a silent witness to his hope. If he is acquitted, oh, how my spirits will soar. And if he is convicted, something like despair will poison me.
Trial of a criminal case is more than merely holding the state to its burden. Trial is Golgotha revisited. There is a cross shaped just for the lawyer on that hill. Of course, in the event of defeat, the lawyer is invited to rise again on another day in another case. The client remains dead, however. And hence the odd alchemy of trial: We come to love the man beside us, knowing full well our love may not be enough to spare him catastrophe. But we have no choice in the matter. To give less than love is to give nothing at all.
I keep thinking of the Gospels. "Greater love has no one than this, that he lay down his life for his friends." But then I remember that I am no Christian. Why, moth-like, an I drawn again and again to these flames?