Take That, Pal

One of the real thrills of doing trial work is hearing a jury announce its decision.

That's known in lawyers' lingo as "taking a verdict". Like watching a child's birth or looking into the Grand Canyon, until you've been there you can never really appreciate what it's like. Pick a word, any word--- nerve-wracking, exhilarating, depressing, thrilling, devastating, ego-crushing--and it will never adequately describe the sensation. And dealing with the results, especially the bad ones, is yet another story.

What makes it thrilling is not so much the result, but the unpredictability of the result. Of course winning a trial is exciting. It is, on the most basic level, a huge boost to the lawyer's ego, an affirmation of trial skills and a balm to the gnawing insecurities that beset even the most apparently confident and competent.

But trying cases is like taking photos; if you do it often enough you're bound to get a good result eventually. So winning and losing happens to everyone.

The unpredictability, though, is what provides the adrenaline rush, what keeps everyone on edge. The very first criminal jury trial I ever did (and coincidentally the very first jury trial I ever saw) was in Juvenile Court in the District of Columbia. I was a newly hired public defender. My client was a fifteen year-old boy accused of armed robbery. It was alleged and the evidence showed that my client had worked at a car wash for a number of months. He had been fired the day before the date of the robbery. The next day he brilliantly returned to his former place of employment, pointed a knife at his employer of three months and emptied the cash register. The boss called the police and identified the robber by name. He was promptly arrested, the evident seized and he was promptly presented to his former employer for the inevitable certain identification. A locked solid case.

The trial came a few months later; the evidence was as predicted; the defendant didn't testify; and, despite a bumbling, inept closing argument by the ingénue defense lawyer, the jury deliberated for a day and a half and returned to the courtroom to announce the defendant Not Guilty.

Could I claim this as a testament to my trial wizardry? Even I knew that this wasn't so. Did I have a rational explanation for this result? Not I. Rather, what I learned was that anything can happen at a jury trial.

That lesson has been reinforced often over almost three decades. I later represented a man accused of first degree assault, a conviction for which carried a mandatory minimum sentence of five years.

Of course I plea bargained, trying to avoid the harshness of that five years, preserving as best I could, as much of this man's liberty as possible. The prosecutor feeling, I believe, that the case did not merit the mandatory minimum offered two years. Given the evidence it was a good offer. I conveyed it to my client, described what looked like the certainty of his conviction, and with the fervor of one who knows he is right, insisted he accept the state's generous offer. He refused. But how could you, I asked. Don't you realize that you are facing a mandatory minimum of five years? Even if you were the judge's brother, he'd have to send you to prison for at least five years? Do you understand the evidence, I asked. When the jury hears this case they are going to see that you are a thirty-five year old man with a prior drug conviction who has abandoned his family and wife of twelve years and run off with an eighteen year-old girl. And that girl is the complainant. She says that after a while she got fed up with you because of your irrational jealousy and temper tantrums. She couldn't take your abuse any more. She will tell the jury that when she returned from a date one night she was parked in front of her mother's house in her new boyfriend's car when you suddenly appeared, dragged her from the car and into your own car. Then as you sped off into the dark of the night on a lonely wooded road she tried to escape by opening the door. And she will tell the jury that at that point you struck her on the head and on the hand with a beer bottle while the car careened along. The beer bottle broke her hand and you pulled her back into the car. She will explain how you pulled the car off into the woods and threatened her when she ran off and then shot a gun off in the air, terrorizing her. Then she will tell the jury how you took her back to your mother's home where she convinced your mother to take her to the hospital for her injured hand. And from there she went to the police where she reported this sad tale. And your mother will testify about her injuries. So will the doctor. And so will the police who arrested you. Do you really think a jury will find you not guilty? Do you really want to risk a certain prison sentence of at least five years?

I have faith, my client replied. In what, I asked, trying to divine what it was about this scenario that generated this blind, unrealistic and totally unjustified confidence. There was no response.

And so to trial. The evidence was as described, only worse. The complainant was an attractive young girl who had been inexplicably swept off her feet by a seedy rural agrarian of the type that provides grist for Jeff Foxworthy's comedic mill. It had been, she acknowledged, a youthful indiscretion. She was back, now, living at home with her mother, finishing up her schooling. And her mother, of course, corroborated this as well as the injuries she observed on her daughter. The other witnesses provided corroboration as well.

The defendant, buoyed by his inexplicable faith testified. He related how he was now back with his wife and family, acknowledged that he had dragged the complainant into his car just as she described, recounted how he had just wanted talk to her, to convince her to come back to him when she tried to leap from his car. Yes he struck her with the beer bottle, but it was an accident as he was intent on getting her back into the car so she wouldn't hurt herself by striking the pavement when she leapt from the speeding vehicle. And, when he pulled off the road into the woods, all he wanted to do was to talk to her some more, to tell her of his love. But she wouldn't stay with him, she ran off, so he fired the gun above her head; he didn't mean to hurt her, just to scare her. And didn't he take her back to his mother's house after all; and after that arrange to have her taken to the hospital. Did you love her, I asked, playing through on the soap opera theme that his faith had created. Yes, he sobbed, and I still do.

The jury was out for a while and then we broke for lunch. They stayed out for a longer while, and then they started asking questions, none apparently relevant or heartening. We scrambled to provide answers, pretty much without success.

Now I told my client, was the time do deal. I had spoken to the prosecutor and, inexplicably, he was willing to come off the mandatory minimum and now offer a sentence of two and one half years. We could not take the risk. He must take the offer.

No, he replied, he still had faith. But five years is a long, long time. And there's no parole from a mandatory sentence. No, he had faith.

The knock on the door signaled a verdict and, I knew, not a favorable one. The jury entered the courtroom. I was bursting with frustration. Here was my client condemning himself to a harsh prison sentence which could have easily been avoided with but a little common sense and rational thought. His faith would not, I knew, set him free. On the contrary.

Has the jury reached a verdict? Yes, your honor. As to the charge of Assault in the First Degree, said the clerk, what is your verdict?

Guilty!

Guilty. Well, I knew that was coming, what next. Wait, why not poll the jury, the last act of a desperate defense lawyer.

Juror number one, on the charge of Assault in the First Degree, how do you find the defendant?

Guilty!

Juror number two? Guilty.

Juror number three? Guilty.

Juror number four? Guilty.

Juror number five?. . . . .Juror number five? I ..., I ..., I can't say it ... I just can't say it.

What to do? Back on the roller coaster. The judge ordered the jury to return to deliberate further; reinstructed them on the charge of Assault in the First Degree as well as the lesser offense of Assault in the Second Degree (for which there was no mandatory minimum); and we all waited tensely and impatiently for the next two hours until the jury returned with a verdict on the lesser offense.

Irrational faith had prevailed over logic. The great legal minds had been proven wrong once again. The judge later imposed a one-year sentence. An appeal was taken, the conviction overturned and a plea bargain reached and my raggedy, weathered Romeo received a suspended sentence.

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