Friday, October 31, 2003

Closing, and then waiting.....

My favorite part of a case is closing. I love getting up there and letting it all hang out. I love breaking a case down, finding little details that the other side has missed out on, that the jury didn't notice, and pointing out how they support my cause. I love pulling together all of the little questions that I asked that seemed to make no sense, and putting them together in a coherent story that breaks down the prosecution's case little by little.

Closing is also great because it is frequently the only time in a case where a client likes me. During cross examination, they wonder why I don't ask other questions, during the prosecution's case, they wonder why I allow witnesses to say bad things about them (like that they shot someone, or beat someone up, or robbed someone). But, after closing, they love me. This is the first time in many of their lives that they've ever had someone stand up in front of a group and defend them, or even say good things about them.

I love doing closing arguments, and I think I'm pretty good at them now. But, the worst part of closing is finishing. You see, after I finish, in California the prosecution has the right to go after me. They get the last word, and that kills me to listen to it. First of all, I remember all of the things that I wanted to say in my closing and forgot to say (you will not find a lawyer in the world who hasn't forgottent things in their closing). Also, I can't respond to some of their specious, or even good, arguments. Finally, I just hate the loss of control. No one wants to let someone else get the last word, and that's what has to happen (except in my previous trial, where, for the first time ever, the prosecution waived their final closing argument) all the time.

Then comes the waiting. I have always been terrible at waiting for results. In school (every school up through law school), I never got nervous for tests, only for the results. In trial I almost never get nervous for triall, but I do get nervous for verdicts. Nothing is more wrenching than watching the foreperson hand the bailiff the verdict forms, who gives them to the judge, who gives them to the clerk to read. That just kills me.

And right now, I'm in the waiting game. Wish me luck. I could win, I could lose, it really could go either way, but I feel, in my gut, that the longer it takes the worse it is. And it has been the whole morning already, so I can only fear for the worst.

Monday, October 27, 2003

Lying Cops

I've said before that the greatest amount of lying, or dishonesty, among police officers occurs in the offering of "opinion" testimony. The opinion is usually something to the effect of "the defendant's guilty," and they have a bunch of fancy little words that they utter to make it somehow fit within the evidence code.

The testimony is a wholesale license to lie. And today, in my trial, an officer did just that. In this case, I actually had some goods on the cop, but this cop, and so many others, are so dishonest that they make their biases completely obvious just by the way they testify. Here, the detective managed to not understand and need clarification on every question I asked. They all made no sense. They were hard to comprehend, whatever reason he could come up with not to give me a straight answer about the most obvious of things. Yet, when the DA asked him the same questions, magically he understood.

The other infuriating thing is that there are no certainties when a cop gives opinion testimony. One time, his opinion is this, another time it's that, if it fits the case. Here, though, I had him as to one of those opinions. And I had a transcript where he stated explicitely that which I wanted him to say in this case (it helped him in the prior testimony and hurt him in this case). Of course, as I expected, he tried to weasel out of it, said he didn't remember the case, said he wasn't sure, but I got him, and the jury got a look at what a liar he was.

Now, I can only hope that they find my way. I see no reason why they should come back with a guilty verdict, but on the other hand, who knows, maybe they trust this officer. Their case sort of sucks aside from the cops testimony, and I caught him shading his testimony consistently against me, so they probably should disregard what he says, but I really can't say.

Well, I put on my case on Wednesday, and then close on Thursday, and then that's that. We'll just have to see.

Wish me luck.

(does any of this make sense? It's just a stream of consciousness right now in that I'm still pissed off about what happened in court, so I'll make more sense in my next post, after the verdict, when I tell you the whole story).

Friday, October 24, 2003


Sometimes, it is invigorating, the most fun I've ever had while working, a joy to behold. Sometimes, it works me to the bone and stresses me out to no end. Usually, it does both at the same time.

The trial that I have been involved in for the last week has done both, in greater amounts than any trial I've ever done before. I wrote earlier about the murder client I represent where DNA evidence that could exonerate him sits untested by the prosecution (they will not attempt to get a sample of a 3rd party who was identified as the shooter by one witness but against whom they chose not to pursue charges, since any evidence gathered against him would only harm the case against my client). Well, believe it or not, despite the fact that my client is very likely not the person who did this shooting (I am convinced, for the first time in any murder case I've ever had, that my client is innocent), the case is now in trial.

People have asked me in the past "how do you sleep representing a guilty person?" My easy answer is "a lot better than I have this last week."

Representing someone who is innocent, where he could easily be convicted due to the presumption of guilt that exists in every case (unless you are a celebrity like Kobe Bryant, you will be presumed guilty in just about every case, that is just the reality despite the law) is very stressful. The prosecution realizes that they have a very weak case, so they are putting up a huge amount of evidence - not evidence that points to guilt or innocence - just evidence, to try and overwhelm the jury with the thought that the DA would never put up this much evidence if the person was innocent. They are hoping that the jury would never believe that they rolled over on doing work on the other suspect due to the fact that they are working so hard right now, so why would they have been lazy before and not investigated a legitimate lead earlier.

I have made many points, but several of her witnesses have come into court and lied. How do I know they have lied? Well, some have contradicted their preliminary hearing testimony, some have contradicted subsequent statements to the police or my investigator, and some have done both. I can only hope that the jury sees through this the way I have and find my client not guilty in the end.

It is always heartening when you have those who are otherwise cynical on your side, and in this case I do. The court clerk and the bailiff, both of whom have seen and heard many cases before, are openly skeptical about the prosecution's case. It will only get weaker when I put my evidence on next week.

I'll update next week with more info, for there are many fireworks that are going to take place next week. There could be some good stuff, and, you never know what may happen. I already have a DA and a homicide detective extremely upset at me, if I don't post anything in the next few weeks, you may find me face down in the desert...... Make sure you send this post to the attorney general.

Only joking.

Out for now, more info later.

Thursday, October 09, 2003

Worthless Public Defenders

Such a concept certainly exists, and it appears to exist to a large extent in Nevada. I won't pretend to know everything about the public defender's offices in Las Vegas, but on the face of it, something is wrong.

It took me over 7 years before I was allowed to handle cases where the defendant was eligible for death, and if I actually got a case where death was a good possibility, I would have a co-counsel, probably one with death penalty experience. Apparently, in Las Vegas, if you fail a lie detector test (ie - the office thinks you are guilty), they assign you a brand new lawyer, reserving their "good lawyers" for "innocent" clients. CNN has a story about this, and the subsequent lawsuit where an exonerated death row inmate has sued the office for assigning a brand new lawyer on his death penalty case because they felt he was guilty.

I say sue, and get yourself a huge amount of money.

It should not matter to a lawyer whether a person is innocent or not. Of course it does, in reality, but such a consideration should not affect the manner of your reprsentation of a client. I will not put my head in the sand and pretend that individuals are not emotionally affected by this realization, but in Las Vegas, the office apparently has a policy of disciminating between cases in this manner.

Where I work, our best lawyers have worked on cases where the defendant was absolutely guilty, in fact, I would venture a guess that if you asked most lawyers (true believers, or those who think everyone is innocent, aside), they will probably admit that they have never had a murder where they absolutely believed that the defendant was innocent. Not guilty, maybe, but absolutely innocent? I have some news for you, it doesn't happen too often. On a death penalty case? Even less frequently. There may not be strong evidence of a person's guilt, there may be justification for the killing, but the absolute wrong person? It just doesn't happen that often. If I had to wait for one of those cases before I started working hard, I would not have anything to do.

Sometimes, your best effort is getting a dead bang guilty murderer life in prison instead of death, or a non-life sentence, or a verdict of guilty to a lesser offense. Fighting a case does not mean your only hope is to have a client walk out of the front door at the end of the proceeding. The Las Vegas PDs office, if the story is to be believed, will only work hard on those few cases.

Such an office, if true, should be disbanded and put back together in a responsible manner, where all defendants have true representation by dedicated lawyers. I certainly hope the allegations are false, because if they are true, they give public defenders everywhere a black eye.

Wednesday, October 01, 2003

There are few things more intense than having a client plead guilty to a large amount of time. In the last year I have had clients plead guilty to 27 years and 25 years. On these charges, my clients will serve 85% of their sentences, meaning that they would get out in about 23 and 21 years, respectively.

Obviously, if one can't do the time, one should not do the crime, and obviously these were people who did very bad things. But, what is interesting about my work is that I get to know some people that most members of "polite" society would never know in any way except to feel menaced by them. I hold real and sometimes deep personal conversations with these people. In other words, I grow to have a certain affinity for some of my clients. Some clients I detest, not only because of the acts they have done, but because of their particularly unpleasant personalities. Others I like, in spite of the things that they have done.

Thus, these last two clients that I pled to long sentences affected me more than other cases in that I actually liked the clients, even though they were clearly bad actors. I didn't want to have them over for dinner, but I understood that they had family who loved them, I met that family, I saw they had children who would miss them, wives or girlfriends who loved them, and people that would feel the void of their departure (I guess I see this also for clients I find extremely unpleasant too).

The real dilemna in cases like this deals with the fact that on one hand, as a purely reasoned calculation, these people should be pleading guilty. There is frequently strong evidence against them, they face sentences which will guarantee that they never exit prison for the rest of their lives, and they wish to mitigate against such a possibility.

On the other hand, I stop and think of myself and what I've done in the last 25 years, and what I will do over the next 25 years. I think about my house which I will have paid off completely, I think about my children who will be out of the house, I think of the fact that I'll be retired then. This gives me an idea of where I will be when they get out, and then I consider all of the things I will do and enjoy in that period of time that they will never have happen to them.

Most people don't have to consider this as an active part of their life, but I remember the movie "The Shawshank Redemption," and the amount of time that the main character and Red were in prison. I remember how worthless Red was upon getting out of prison, how he could barely go to the bathroom without having a crisis of conscience. I wonder to myself what these two clients will look like in 20 years. Was it the best thing that they plead? Should they have just taken their chances at trial, and then hoped for the best on appeal if and when they lost?

One of the tough issues I face when this situation arises is what kind of advice to give. The last thing I want is for a client to think that he was forced by his (appointed) lawyer to plead guilty, or "dumped." As a result, I never try to talk clients into taking deals, I only lay out the issues for them, the pros and cons, the best possibilities, the likely scenarios arising from trial, etc.... I tell them that they can ask my advice if they want it, but I don't force it down their throats. The only thing that I will sometimes do is say something like I said to my latest multi-year plea. My client who just pled to 25 year had told me to make the DA an offer of 16-21 years (I offered 16). The DA came back with 31, so I told her specifically 21, she came back with 25. I told my client that if he was really willing to accept 21, then he should take 25, since the difference between those two was so little compared to what he was facing (never leaving prison). If the difference between the DA's offer and what my client wants is little, but the downside from not accepting is huge, I will tell my client that they should not be excessively proud about this, they should go ahead and take the deal. But, I only do that after they have told me that they want to plead guilty and that they'd take a deal close to what was actually offered.

Finally, for serious cases like these, I find that most of the hard work takes place prior to going to trial. The trial and closing arguments are the fun part, so I tend to have some misgivings feeling that I've done all the hard work without getting any of the fun stuff in return, and that I really should go all the way as a result. Of course, that is only what I feel, not how I act. I act in my client's best interest, whatever way that may be, and however he directs me. He has an absolute right to a trial, and I am prepared to fight hard for him. But, he also has an absolute right to plead guilty, so what I want doesn't really matter anyway.