Willie Dow on Law Practice in New Haven
Police officers are in many ways just like other witnesses. They come in all shapes and sizes and can be good, bad or nondescript. Though generally more experienced than lay witnesses police can be truthful, forgetful or, in some instances, less than candid. Criminal defense lawyers come to expect this. We anticipate the problems their testimony can present. While the information they offer is mostly helpful to the prosecution (why else would they be called to testify), it is possible to extract from them helpful information and that sometimes works to our client’s advantage. The problems they present are familiar parts of the criminal defense terrain.
There is a particular type of law enforcement witness, however, that presents special problems. Experienced and savvy, this witness knows how to thrust and parry with defense counsel, to inject damaging information and twist and shade it in such a way the defense lawyer loses control and the client helplessly watches as any chance at acquittal turns to gossamer.
Like most criminal defense lawyers I have endured that unhappy experience. There was, though, one time I was able to defuse the bombshell before it exploded.
I represented a man accused of arson. The case against him was circumstantial but strong. The investigation had been directed by an inspector who was one of those dangerous witnesses. He was handsome, had the buttoned down look of a Dean of Students, and was just as articulate. Juries loved him. I knew when he testified he would smoothly slip in damaging information about my client if he had the slightest opening. He was a formidable adversary. I liked and respected him but, boy, was he dangerous.
This witness, call him Al, was a top flight investigator, so skilled he traveled throughout the country instructing others in investigative techniques and how to testify about those investigations. I knew going into the trial that he would be a problem. I was scared about how to control him. How was I going to be able to stop him from jobbing my client. No matter how I examined his expected testimony, I could not figure out a sure way to cut him off at the pass.
The first two days of the trial went fairly well. Better than I expected. We were still in the hunt. But then Al had yet to testify. On day three the first two prosecution witnesses were vanilla, basically harmless. Al would be next. I still didn’t know how I was going to handle him, and it was eating at me. As frustrated as I was about the danger he presented, I was even more exasperated with myself. I’d been trying cases for years, and I still didn’t have a handle on solving this problem. I knew the information I needed to get from him, but I just couldn’t figure out how to stop him from slyly slipping a knife in my client’s ribs. It was a knot in my stomach.
The morning recess came just before Al was going to testify. Given more time to prepare and still without a solution, I procrastinated. Rather than review the outlines of my expected cross, I got into a bull session the prosecutor and with Al.
Earlier that day I had run into a lawyer friend on the way to the courthouse, a fellow with a great sense of humor and an endless supply of off-color jokes which he told in a variety of dialects. Before I could share with him my anxieties about my trial problems, he launched into yet another of his scatological stories which he told with such gusto I had to pay attention. It was a welcome relief, a hilarious shaggy dog story. It ended with a one-word punchline, “Bighead”.
It was a terrific joke. I was still laughing about it when I got into the elevator. And I was still smiling when I entered the courtroom to resume the trial.
So during the recess, rather than reprepare my cross, I told the Bighead joke to the prosecutor and Al. It was long and took up most of the recess. We laughed so loud we were afraid the jury could hear us.
The judge entered the courtroom just after I delivered the punchline and the prosecutor, Al and I were wiping the smiles off our faces as the jury entered. Al took the stand. My anxiety returned.
Al’s direct was pretty straightforward. He told how he went to a factory where he arrested my client and seized from his car some clothing which smelled of gasoline and an empty five-gallon gasoline container. My client was taken into custody and the arson dog alerted to the odor on my client’s clothing. Great. He was accompanied, Al testified, by Sgt. Jones of the local police department and another officer whose name he could not recall.
Inspector, you took my client into custody, correct?
And when you did so you went there with two other officers, correct?
One of those officers was Sgt. Jones, correct?
And the name of the second officer you cannot recall, correct?
Well, let me ask you, inspector, that other officer–and here I paused–did he go by the nickname “Bighead”?
Al hesitated. I saw him fight the beginnings of a smile and fight against laughing. He couldn’t look at me. N . . .No, sir.
I had him. He was too good to break out laughing in front of the jury. But he didn’t know where I was going next. I got the answers I wanted and got him off the stand. The bombshell never went off.
It really was a terrific joke.