Let It All Ride On 23, Black

The law, based on an apparent foundation of logic, reason and common sense, tortures its practitioners by placing that foundation on the San Andreas Fault of human nature, causing periodic and unexpected trembles and shakes that penetrate our operating assumptions with a healthy dose of uncertainty.

The unpredictability of it all is what makes trial work exciting. Sure, it's satisfying to win a case. It's a huge ego boost and a great balm to the gnawing insecurities that beset even the most apparently confident and competent. But experienced lawyers know that trying cases is like taking photos; if you do it often enough you will eventually get a good result. Losing is always disappointing and learning how to deal with losing is a whole other story. Winning and losing happens to everyone, but it's the unpredictability of what juries will do that drives plaintiffs and defendants wild and makes grownup lawyers cry.

My introduction to this phenomenon came in the very first trial I ever saw. It also happened to be my very first trial as a lawyer. I was a new Public Defender in the District of Columbia. My client was a fifteen year-old boy accused of committing an armed robbery at a local car wash. Unfortunately, he had worked in that carwash and had been fired only the day before. It was alleged and the evidence clearly showed that my client, afflicted with the stupidity virus that infects all too many of the justly accused, returned to the carwash, confronted his boss at knife- point, emptied the cash draw and fled.

The boss immediately called the cops, gave the name, address and serial number of his robber who was quickly arrested, divested of the knife and money and returned to the carwash for a positive identification. A lock solid case.

A few months later a jury hearing this evidence was required to endure the bumbling performance of an ingénue defense lawyer whose incoherent closing argument was delivered at a staccato pace in a near falsetto voice through a mist of flop sweat. It was worse than bad vaudeville. The defendant did not testify.

We waited, my client and I, for the inevitable. Through lunch and into the early afternoon we waited. Finally, late in the day, the note came in. There was a verdict. And there, in front of God and everybody, the jury told my client he was not guilty.

It was my first lesson in my chosen profession's unpredictability. A completely inexplicable result. Why did this happen? How did it happen? Even as a beginner I knew this was not a testament to my trial wizardry.

I have received many other such lessons over the past thirty years. The most memorable one came a number of years later when I was in private practice in Connecticut. My client, call him Lester, was a thirty-five year-old sad sack accused of Assault in the First Degree.

Lester was ornery and unappealing. He was a seedy rural agrarian, grist for the comedic mill of Jeff Foxworthy. His two-day stubble and raggedy clothes were not so much a fashion statement as a barometer of personal hygiene. Lester had discarded his wife of fifteen years to preside over an acid punk rock gin mill where he promptly took up with and became engaged to a sweet, attractive, seventeen year-old runaway to whom he had proposed on New Year's Eve before a club full of studded, tattooed inebriates.

The engagement lasted about a week before his teen angel returned to her family home, went back to school and began to date a teen-age class mate. Lester could not accept this all-too-predictable turn of events. He pined for his beloved. He followed her everywhere. He watched her every move.

Late one very cold night Lester maintained his vigil from a pickup truck outside her family home in a wooded New Haven suburb, seeking solace in too-many bottles of Rolling Rock. He saw his former betrothed parked in the driveway with her new Gallahad and watched as they began a long, teen-age good night. He couldn't take it. He ran up and pulled her from the car, dragging her to his truck and speeding off. All the while he pledged to her his love and begged her to return to him. He cried, he wailed, he entreated. She asked him to stop, to let her out. He begged harder and drove on. It's over, she said. I'm leaving. She opened the door. He hit her with the bottle, first on the head and then on the hand, forcing her to remain in the truck.

He quickly pulled off the road and she ran into the woods. He fired a shot into the air and chased her. He brought her back to the truck. He continued to beg and cry. She was hurt and scared but she stood her ground. He finally took her to his mother's house where she convinced Lester's mother to make him take her to the hospital where they learned he had broken one of the bones in her hand. From there it was on to the police station to file the complaint that led to Lester's arrest.

This kind of First Degree Assault carries a mandatory minimum sentence of five years. Lester had a problem: a jury would not be sympathetic to him. The complainant was attractive and believable. Lester was neither. The other witnesses--Lester's mother, a doctor, the victim's mother, her boyfriend and the police--would not paint a pretty picture.

I explained all this to Lester. I encouraged a plea bargain. I had convinced the prosecutor to offer less than the five years the statute required. He offered two. Lester, I said, you have to take this. You are going to be convicted and that means the judge will have to send you to prison for at least five years. Even if you were his brother, he'd have to give you five years. You have to take this deal.

No, Willie, I have faith.

Faith? Faith in what? Look, you're now back with your wife and family. You can't put them through your being in prison for at least five years. You have to take this deal.

No. I have faith. Let's go to trial.

And so we did. The whole story came out, only worse than expected. She was a stunning and sympathetic witness. Her youthful indiscretion was over; she was back with her family, back in high school, back where she belonged. The nightmare relationship with Lester was over. Her life was on the right course. And yes, her hand had been broken and she still suffered some side effects from what he had done.

Her mother, as predicted, was an impressive witness. Lester's mom, the cops and the doctor completed the picture.

Lester was even worse than I expected. He looked awful, spoke worse and was totally incredible. He had reunited with his wife and family, he said. Attempting to play on the soap opera theme he had drafted for his defense, I asked if he had loved the victim at the time this all happened. Yes, he said, as his wife listened from the audience, and added softly, I still love her today. I stopped. I didn't have the nerve to play that hand through.

The jury retired before lunch and we waited.

Lester, it doesn't look good. Let me talk to the prosecutor. Maybe there's still some way to get out of this.

No. I have faith.

Lester, faith is not going to do it. Did you see those jurors? Did you see how they almost embraced her when she testified? For crying out loud, they were crying when she was crying. They almost had smoke coming out of their ears when you were on the stand. Please, let me try to work this out before it's too late.

No, Willie, I have faith.

We broke for lunch. We returned. The agony continued. The jury asked some questions, none relevant or heartening. Now, Lester, now. Now before it's too late. Let me talk to the prosecutor.

I have faith.

But, Lester . . .

It was too late. The jury has a verdict.

Lester, I did my best.

The jury entered. Not one of them looked at Lester or me, certain confirmation of the inevitable. As to the charge of the Assault in the First Degree, do you have a verdict?

Yes, we do.

What, then is your verdict on the

charge of Assault in the First Degree?

Guilty.

Guilty. Well, I knew that was coming. As the last desperate act of a concerned defense attorney I requested that the jury be polled individually. The judge acceded.

Jury number one, how say you, Guilty or Not Guilty?

Guilty.

Juror number two?

Guilty.

Juror number three?

Guilty?

Juror number four?

Guilty.

Juror number five? . . . . . . Juror number five? . . . .Juror number five, how say you Guilty or Not Guilty?

I . . . . I. . . .I . . .can't . . . say . . . it , I just can't say it.

What happens now? Back on the roller coaster. The judge ordered the jury to deliberate further, instructing them that they could consider as well the charge of Assault in the Second Degree, also a felony but one which carried no mandatory minimum sentence.

We then resumed our watch, waiting tensely for another two hours before the jury returned with a verdict on the lesser offense. An appeal followed which we won on other grounds and, ultimately, our raggedy weathered Romeo received a suspended sentence through a plea bargain.

His faith had indeed set him free and I learned again that the casinos are not the only places where you can gamble legally in Connecticut.