A short while ago I tried a criminal case to the Court. It was the first time I'd done so. It was absolutely terrifying. Thanks to a wise judge who understood how to assess testimony my client made out fine. On the other hand, I'm still unsettled by how disorienting it was.
Most lawyers who do criminal law are used to jury trials. You know, the old Perry Mason smoke and mirrors. "Now isn't it true, Officer, that you did not mention that anywhere in your report?" An arched eyebrow. A look of scorn. A wave of the hand. "No further questions."
We develop, over time, certain shticks, lines of patter or questions designed, we feel, to throw doubt on the obvious. We keep an assortment of these forensic implements by our sides at trial, like so many tools in a toolbox. They are standard issue. We pick them up and use them regularly in the ordinary course of defending the unjustly accused before their peers. "What's that, Detective? You didn't even attempt to take any fingerprints from the Howitzer you claim killed the decedent? Is that what you call competent police work, Sir?"
These forensic devices, though tried, are also true. They actually work. Juries, new to the game, are often persuaded by these familiar tactics. Even though they are familiar and even though we use them a lot they are very effective on new audiences. That's the key. It's the audience, not the shtick. If this were not the case, then Nathan Lane and Matthew Broderick would have to replace "Springtime for Hitler" with a different song at every performance of The Producers. Juries like this stuff.
But court trials. Now that's a different story. It's especially different when the judge, before anointment, was a savvy and experienced trier, one who knows shtick when he sees it. In this courtroom before this judge you feel like a magician trying to impress Houdini with an escape act. The judge knows what you're up to and the judge knows how you're doing it. You can't kid a kidder.
But what to do? They take away your hammer and nails, but you still have to build the house. The usual tools are gone. You feel like you're left with some glue, a couple of rubber bands and two shirt cardboards.
What's more the size of the stage has shrunk. You're used to performing to an audience from the stage at The Palace and now you're singing the same song to a single person in their breakfast nook. So you have to tone it down more than a little. But how much?
It's one thing to try to read six or eight jurors as they react to evidence. In fact it's kind of fun. But how about when it's the judge and no one else? What do you look for? What do you cue off of?
Usually when a defense lawyer chooses a judge trial over a jury trial it's because the lawyer's convinced that the judge will be able to entertain a real reasonable doubt based on the facts. No hyperbole. No shtick. Just straight out facts.
But how about that inevitable point in the trial when, convinced your client should be acquitted, you look up at the bench and know from that weary gaze that this judge just isn't buying it. Perhaps, counsel, you made the wrong decision?
As the rivulet of perspiration flows down your spine to the small of your back, maybe now, not so cocky, you would have preferred six naifs upon whom you could have spun your rhetorical magic—the shtick, the patter, the smoke, the mirrors. Then, at least, if disaster strikes you can always deflect the blame to others—"That damn jury just wouldn't listen." "If that g-damn judge had only let that evidence in we would have won."—or at least revel in the small victories—"Hell, I kept them out for a day-and-a-half."
When you read the tea leaves and tell your client to go with a judge and not a jury because you're sure the client will get a better result, you'd better be right. There's not a lot of blame to go around. If you're wrong, you walk back to the office alone while the client you advised to waive a jury is en route to Whalley Avenue, locked in the back of a van which smells of stale baloney sandwiches, sour milk and despair.
Fortunately for my client in this recent trial, the tea leaves were legible. I was accompanied by a grateful companion on the walk back from court.