Mark Bennett took a huge risk. When he started live-blogging his trial, he gave us a window into how things were playing out in his mind. In the beginning, you never know how the trial is going to go, and we had no idea what the view through the window was going to show us.
As the trial proceeded, the view looked quite lovely. Mark was making his points. He was nailing his cross. His adversary was getting angry and venting. All the signs of a well-tried case. And we all know what a well-tried case means, right?
For those of you who said to yourselves, it means “not guilty,” you haven’t been paying attention. As Other Steve comments yesterday, I’ve been “posting a lot lately about the sad reality of criminal defense.” There is no more painful reality of criminal defense than the bad verdict.
Those of you who don’t try cases won’t understand. You can do everything possible. You can do a great job, a superlative job. And still, when the verdict comes, you stop breathing and your heart stops beating and you stand there a wait. Then comes the verdict.
Mark’s jury came back. The verdict was guilty. For a few seconds, it feels like someone just punched you in the chest. You can’t breath. You can’t believe what you just heard. You want to hear it again to be sure. You play it over again in your mind to make sure you heard it correctly. Guilty.
There is an intensity and focus that happens during a trial that is beyond anything else a human can do. I’m sure people feel it in other endeavors, but I don’t know of any. And as you accomplish the goals you are trying to achieve, you believe that it will rationally follow that it will produce the end result that you’re seeking. You must believe. There is no other way to try a case than to believe. The second you lose faith, all is lost.
But despite this belief. despite the efforts and accomplishments, trying a case is not scored witness by witness, argument by argument. It is a winner takes all proposition. You can be up 27 runs to nothing and it doesn’t matter. You can do everything right and it doesn’t matter. Only one thing matters. The verdict.
Maybe there was nothing that Mark could have done, or nothing that anyone could have done, that could make the men and women on that jury do anything other than convict. Maybe the bottom line is that we live in a society that just can’t believe that anyone could be put on trial by the cops for murder if they weren’t guilty. Maybe trial lawyers delude themselves into believing that the devastating cross was enough to show the jury the truth, when there’s nothing that could have saved the defendants.
We rarely know what happens in the minds of the jurors. I’ve harped on this point again and again, the last time only yesterday. But I can tell you about what happens in the mind of the lawyer. The trial lawyer stands before the jury naked, putting everything he has into his representation. It’s a deeply personal contest, a referendum on him as a lawyer. When that verdict comes in, it’s a verdict on him, not the defendant.
We know it’s really not. It just takes a few days before the shock and adrenalin wears off. We’re heartbroken. But losing is part of the game. No criminal defense lawyer wins every case. We know this rationally. We realize that every time we roll the dice, we’re less likely to role a 7 than another number. But we refuse to accept it because we believe that our skill, drive and will can make those dice come up 7.
So Other Steve, this is another sad reality of criminal defense lawyering. Despite doing everything right, we sometimes lose. And when we do, it is unbelievably depressing. It stinks. I know Mark Bennett will get past it, as do we all. But today, he must really feel like crap because he did such a great job. Hang in there, buddy.
As the trial proceeded, the view looked quite lovely. Mark was making his points. He was nailing his cross. His adversary was getting angry and venting. All the signs of a well-tried case. And we all know what a well-tried case means, right?
For those of you who said to yourselves, it means “not guilty,” you haven’t been paying attention. As Other Steve comments yesterday, I’ve been “posting a lot lately about the sad reality of criminal defense.” There is no more painful reality of criminal defense than the bad verdict.
Those of you who don’t try cases won’t understand. You can do everything possible. You can do a great job, a superlative job. And still, when the verdict comes, you stop breathing and your heart stops beating and you stand there a wait. Then comes the verdict.
Mark’s jury came back. The verdict was guilty. For a few seconds, it feels like someone just punched you in the chest. You can’t breath. You can’t believe what you just heard. You want to hear it again to be sure. You play it over again in your mind to make sure you heard it correctly. Guilty.
There is an intensity and focus that happens during a trial that is beyond anything else a human can do. I’m sure people feel it in other endeavors, but I don’t know of any. And as you accomplish the goals you are trying to achieve, you believe that it will rationally follow that it will produce the end result that you’re seeking. You must believe. There is no other way to try a case than to believe. The second you lose faith, all is lost.
But despite this belief. despite the efforts and accomplishments, trying a case is not scored witness by witness, argument by argument. It is a winner takes all proposition. You can be up 27 runs to nothing and it doesn’t matter. You can do everything right and it doesn’t matter. Only one thing matters. The verdict.
Maybe there was nothing that Mark could have done, or nothing that anyone could have done, that could make the men and women on that jury do anything other than convict. Maybe the bottom line is that we live in a society that just can’t believe that anyone could be put on trial by the cops for murder if they weren’t guilty. Maybe trial lawyers delude themselves into believing that the devastating cross was enough to show the jury the truth, when there’s nothing that could have saved the defendants.
We rarely know what happens in the minds of the jurors. I’ve harped on this point again and again, the last time only yesterday. But I can tell you about what happens in the mind of the lawyer. The trial lawyer stands before the jury naked, putting everything he has into his representation. It’s a deeply personal contest, a referendum on him as a lawyer. When that verdict comes in, it’s a verdict on him, not the defendant.
We know it’s really not. It just takes a few days before the shock and adrenalin wears off. We’re heartbroken. But losing is part of the game. No criminal defense lawyer wins every case. We know this rationally. We realize that every time we roll the dice, we’re less likely to role a 7 than another number. But we refuse to accept it because we believe that our skill, drive and will can make those dice come up 7.
So Other Steve, this is another sad reality of criminal defense lawyering. Despite doing everything right, we sometimes lose. And when we do, it is unbelievably depressing. It stinks. I know Mark Bennett will get past it, as do we all. But today, he must really feel like crap because he did such a great job. Hang in there, buddy.
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We all suffer from advocatitis: We can’t believe we will lose. We are brilliant. We are well prepared. We care. We work hard. But then the jury decides the facts. Sometimes, as Freud once noted, a cigar is just a cigar.
We get over it, but that walk out of the courthouse following a guilty verdict is one of the hardest things we do.