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Go Figure

Trying to predict the outcome of a jury trial is about as reliable as handicapping horse races at Saratoga. People wedded to logic and reason throw up their hands. There is often no relation between a lawyer’s skills and the end results and often even less correlation between the evidence presented and the ultimate verdict. Just when everyone agrees that two and two make four juries unpredictably return verdicts of three, five, or seventeen. People who try cases see this so often they adopt Murphy’s Law as their byword and learn to expect the unexpected. Anything can happen, especially when you drop your guard and assume it won’t.

A prosecutor with whom I am friendly knows this well. He is as able a trial lawyer as anyone I know. He is bright, imaginative and persuasive. He knows the law better than most judges, has a terrific sense of people and juries love him. He flawlessly tries major felonies at the drop of a hat. He knows all too well that trial skills and evidence can’t always assure a favorable verdict.

I once tried a case against this prosecutor in federal court. We had known each other over the years, but had never actually opposed each other in trial. I knew of his courtroom abilities by reputation and was anxious to see if he lived up to his advance billing. He did, but in terms of one defendant his skills didn’t matter at all.

This was a three-defendant trial, a joint federal-state prosecution, aimed at ridding a city of its major drug dealers. Each defendant was individually represented and the prosecution, not to be outdone, had three lawyers as well.

It is common knowledge that minority defendants in federal drug prosecutions almost never win. The public’s hatred and fear of drugs and their ancillary evils combined, sadly, with historical attitudes about race means bad news for the defense.

This was one of those cases: drugs, guns, money plus some testifying co-conspirators who, bad as they were, knew the real dirt on all three defendants. My client and one other defendant did not testify. The third defendant–let’s call him Andy–did. It’s his experience that proves the point.

Andy had a good job with a large company. He was educated, articulate and dressed like a junior executive. He looked good and he sounded good. He told the jury that yes, he knew the other two defendants and the prosecution witnesses. In fact, he’d grown up in the same neighborhood with all of them, but even though they were all childhood friends, they’d long ago gone their separate ways. He’d had nothing to do with them for years. And he had certainly had nothing to do with any of them as far as drugs were concerned.

My prosecutor friend, the most experienced of our three adversaries, was chosen to cross-examine Andy. He did a marvelous job. Starting slowly and deliberately, he danced with Andy, skillfully eliciting admissions about the old neighborhood, his past association with the conspirators, his frequent visits back which put him in contact with them upon occasion. Well, yes, he acknowledged he had seen them when he went back to visit his mother; and yes, he couldn’t deny the police claim that he was seen speaking to them on the street; you see, when he said he had nothing to do with any of them for years, he’d actually meant he hadn’t hung out with them. That’s different, you see. He steadfastly denied being with these men on the three specific dates the witnesses testified he was engaged in drug transactions in the neighborhood. He was, he said, on motor trips out of town with friends in his foreign car on each of those days.

The trap was set. The prosecutor obliquely approached Andy’s affection for automobiles, got him to admit that this particular car was his pride and joy. He cared for it like it was a family heirloom. That being so, the prosecutor asked, how could Andy explain repair records that showed that this prized possession was in the repair shop on each of the three drug transaction days when Andy claimed to be out of town in that same car? The trap was sprung.

This was a classic cross exam. It was not my client, so I sat back and watched the masterful set up and execution. It was electric. The defendant was cut off at the knees.

The prosecutor knew he had done a superb job. The judge, the jurors, the lawyers, Andy—everyone in the courtroom knew it. We had seen a master craftsman at work. I just knew that Andy, like my client and the other defendant, would soon be convicted. Then would come lengthy federal sentences followed by unsuccessful appeals. One more unhappy chapter in the history of the war on drugs. But I had forgotten the Murphy’s Law of trials where logic and reason depart and serendipity prevails.

The jury convicted my client and the other defendant as expected. Amazingly, they could not agree on Andy. The result for him was a hung jury and a mistrial. A masterpiece cross examination all for nothing. It would have been just as effective, the prosecutor later said, if he had not asked a single question.

Some months later, this same prosecutor was trying a burglary case against two immigrants who almost by accident had stumbled into an unoccupied mobile home and made off with a microwave and cash. They were caught minutes later a short distance away with all the incriminating evidence inside a stolen vehicle.

It looked like a garden variety case with a predictable garden variety conviction. Except a very clever defense lawyer focused on the fact that the arresting officer put in his report that the car had been stolen from in front of the mobile home moments before the defendants were arrested. There was absolutely no evidence to support that claim. This cop was cheating, making things up to establish guilt without evidence.

The defense attorney saw his opening and went for it. Slowly, methodically, he established the officer’s training; his knowledge of the importance of police reports; the reliance the prosecution placed on these reports in making its case; how they were sworn to under oath; and how the officer was taught to be as thorough and as accurate as possible in executing those reports. “Then how, sir,” the defense attorney asked, “did you establish the time that the car was stolen?” Silence. “Do you need a moment, sir?” Silence. “Does your memory fail you?” More silence. “In fact, you do not know when the car was taken do you , sir?” “No.”

My prosecutor friend was worried. This gaping credibility hole was going to blow apart what should be a sure conviction. This garden variety case was becoming plagued by locusts. He couldn’t object. The questions, though damaging, were proper. It looked like he would lose this case.

But then, the defense lawyer went too far, “And the only reason why you said that the car had been stolen at that time was because you wanted to make a case against two stupid Poles, isn’t that right?”

“Objection!” The prosecutor was on his feet. “I’m insulted that he has tried to mislead this jury by using ethnic stereotypes. It’s an insult to the people on this jury and to this officer. I demand an apology.”

My prosecutor friend had pulled it back from the edge. Whatever the officer’s errors the objection refocused the case.

The predictable garden variety conviction became just that. Another powerful cross examination leading to nothing.

Go figure. Murphy’s Law prevails again.