As we fight our way through a case, we sometimes find ourselves bumping our heads against a wall that wasn’t there a minute before.  While clients expect lawyers to “know” everything in advance, cases often play out in somewhat twisted and unforeseeable ways.  What to do?

This happened yesterday in the case in which I’m now on trial.  The cases started as a drug bust and developed into a bribery case later on.  Drugs suppressed for unconstitutional stop and count dismissed.  Not bad so far, but the Court does not suppress alleged evidence of bribery as “fruit” due to attenuation.

This rulings creates a structural problem.  How do you place a defendant in a jail cell to commence the bribery portion of the case?  To put him there without explanation invites speculation coupled with the obvious implication that he committed some crime which, for unknown reasons, is not before the jury.  To put him there with explanation undermines the exclusionary and suppression, allowing the government to use the product of an unlawful search and seizure to “explain” and “illuminate”.

Clearly, the government needs to show something to explain its case, and so it argues.  In opposition, I argue (among many other technical issues) that by giving the jury a smidgen of the underlying drug case to explain what the defendant is doing in a jail cell, the government is in better shape than it would have been had there been no constitutional violation.

How so?  Well, the proffer is to tell the jury that the defendant was arrested for drugs and that drugs were seized.  No mention of disposition, leaving the jury to engage in sheer speculation about the outcome of the case, though it is impossible to believe that the jury will not leap to the obvious conclusion that the defendant was in fact guilty. 

The Court granted the application under the guise of “motive”, meaning that the government is entitled to show the defendant’s motive for bribery.  It’s a better theory than the government offered, but it fails to address any of the defense concerns.

So what does this mean?  It places the defense in the position of having to try the drug case anyway or bear the consequences of the silent implication of guilt, along with its inherent taint and prejudice.  If it’s not disputed by the defense, then he is tacitly admitting guilt of a crime with which he is not charged and which has been dismissed. 

So the defendant won suppression and yet lost the ability to prevent the government from tarring and feathering him on the second count by use of the dismissed charge. 

Despite my arguments to the court that the answer to the structural problem presented by the suppression ruling, that sometimes the government doesn’t get to go through the back door when the front door has slammed shut due to unconstitutional police conduct, and sometimes they just don’t get to prosecute a charge even though it might otherwise be prosecutable, we’re moving ahead and I’m stuck (for now) with the ruling that the government can freely paint my client a criminal in advance of addressing its remaining charge.

When the rulings become this convoluted and prejudicial, it’s time to go to more extreme measures.  Once it became clear that the Court would neither change it’s ruling or do anything beyond a “cautionary instruction” to ameliorate the harm, it was time to become much more aggressive.

My next argument was that, given the ruling, it was now incumbent upon the defense to open with two points, and I sought an advance ruling on whether this would “open the door” to the prosecution.  Point one was that I intended to open to the jury that the defendant was “factually innocent” of the drug charges, which was the case as proven at the suppression hearing when we presented a defense witness who testified that he, not the defendant, was in possession of the drugs at the time of arrest. 

The Judge found that he was unable to conclude that the defense witness was more or less credible than the police witnesses, thus denying the prosecution the preponderance of the evidence. 

Second, I would tell the jury that the drug charge had been dismissed by the prosecution because it could not prove it’s case, and third that the Court held the police conduct to be unlawful.

But I wasn’t done yet.  I then announced my intention to call the prosecutor as a defense witness to testify that he had dismissed the charge against the defendant, unless he stipulated.  I was shocked when the prosecutor rose from his seat in opposition.

The Judge thoughtfully considered my approach, and stated that I was certainly entitled to challenge the evidence of motive, and that he could not see any reason why my position would open the door to anything.  He took my intention to call the prosecutor as a witness under advisement. 

At the end of the day, we not only have a spectacular and preserved issue for appeal, but more importantly we may have turned this position cum negative back into a positive for the defendant.  The case should have been tossed, but it wasn’t.  Rather than wring our hands and whine about it, we maintain focus and find a way to turn a negative into a positive.  There’s no other option.