Win, Lose or Draw?

Trial lawyers speak of wins and losses. Sometimes the outcome of a case is less clear. I am reeling this morning after yesterday's verdict in a murder case I tried for the past four weeks in Hartford.

There was no disputing that my client shot one woman point blank in the head in the the kitchen of his home, killing her almost instantly. He shot another woman in the chest. She survived. He was a convicted felon. So the state charged murder, attempted murder, assault in the first degree and criminal possession of a firearm. The defense was self-defense: We claimed that he perceived a threat of great bodily harm as he shot.

Yesterday the jury decided that it could not decide what happened as to the murder. It also decided that it could not decide whether there was an attempted murder. No verdict means a mistrial. The state can now bring him to trial all over again, at least as to the murder.

The jury convicted my client of assault in the first degree and the firearms count. It also found facts sufficient to enhance the penalty by five years. We expected to lose the firearms count, and hoped for acquittals in the remaining three counts. It did not happen. Did we lose?

I say we did, and it hurts. The client faces 30 years on the charges of conviction and the enhancement. While that is certainly better than what would have happened had he been convicted of murder -- 80 plus years was a foreseeable outcome in that case -- we pressed for a mere conviction on the firearms count. That was just five years.

The state must now chose whether to retry the murder count. I suspect it will. The victims' family and friends are understandably upset with the outcome. In the past 12 hours, I have received plenty of hostile comments, many printed as comments on posts below. As I walked passed a group of observers in court yesterday, one woman tried to taunt me: "Wizard of Oz, Wizard of Oz, Wizard of Oz," she hissed. It is an odd juxtaposition, this intersection between the raw emotion of a murder trial and readers checking out a lawyer's web page. Welcome to the future.

Some friends have congratulated me on the outcome. "Great job!" one wrote. Staring down murder and attempted murder charges in a case where apparently unarmed women were shot point-blank by a much larger man is not easy. But it does not feel like a win to me. Those taunting me for failing have found their mark. I am an easy bleed, I am afraid.

Throughout the proceedings, my client was willing to avoid the risk of a murder trial and plead to a term of 25 years. The best offer we could get from the state was 35 years. We countered by asking the state to consider 30 years. "No deal," said the state. My client could not accept that offer, so we went to trial. Ironically, after a month of trial, we ended up right where we started. That feels a lot like a draw, and like wasted effort.

But criminal court often feels like waste. It isn't about justice. As Clarence Darrow once observed, "there is no justice in or out of court." What there is is pain. Vengeance for a victim isn't justice. And neither, frankly, are acquittals. Nothing can right permanent loss. We play gods and goddess trying to rearrange suffering tokens at trial.

There are plenty of gaping wounds walking dazed in the wake of this week's verdict. My client faces substantial time. I failed to protect him. Those close to the victims feel cheated and now despise not just my client, but me. And anonymous malefactors come forward to spew venom, too. Death breeds pain ad infinitum.

One exchange during trial captured the subterranean emotional currents of a trial of this sort.

A witness testified that he took my client to a bus station in the wake of the shooting.

"You are lying, aren't you, sir?" I asked the witness, reminding him he was under oath.

"Yes," he stammered.

"And you are lying because you are afraid of people in this courtroom, isn't that right?"


"And those people are not sitting on my side of the aisle, are they?"

"No, they are not," he said.

"You are lying because your life has been threatened by the family of one of the victims, isn't that right?"

"Yes," he said.

"You are lying because you are afraid that if you tell the truth you will be killed, isn't that right?"

"Yes," he replied.

It was a wasted Perry Mason Moment. His testimony didn't matter a whit. All that mattered is what went down in the kitchen one night when four people argued. And as regards that conflict, a jury did not convict my client. That is a win we cannot savor. I suspect we will try the case again.

If the law was about justice, my client would not face another trial. We tell jurors that the presumption of innocence is a complete defense. We tell them, too, that the entire burden of proof is on the state. A verdict, we say, must be unanimous. Query: since the state failed in this case to win a conviction on murder, relying on a silly Sapphistic argument about "we women" and jealousy, why does it get to try the case again? If the answer is that the jury failed to make a unanimous finding of "Not Guilty" that sounds perilously close to imposing a silent burden of proof on my client.

Win, lose or draw, both sides now regroup and prepare for round two. Or will the state accept the offer my client made many, many months ago? Will my client still offer a plea to that much time? The state failed this time around, and there is no reason for the state to expect a better result next time. But reason doesn't govern in cases such as these, passions demand their due ...

Comments: (2)

  • Vengeance for a victim isn't justice
    . . . but l...
    Vengeance for a victim isn't justice
    . . . but letting your client ever see the light of day would be an injustice
    Posted on September 27, 2009 at 5:55 pm by Anonymous
  • YOUR CLIENT IS A MURDERER. No matter what any jury...
    YOUR CLIENT IS A MURDERER. No matter what any jury decides, or rather cannot decide on, murderer is fact. He is cold blooded. You are both naive to think he will be convicted only of possession and assault.
    The truth will prevail.
    Posted on September 28, 2009 at 6:24 am by Anonymous

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