Over at Gamso For The Defense, Jeff Gamso tells of his experience representing a defendant in a capital case. For anyone who doesn’t understand what “capital case” means, it’s the beloved death penalty. Lose big and the defendant is put to death. If I read Jeff correctly, he didn’t try the case but either did the appeal or post-appellate work. I’ve done nothing similar.
During the brief period that New York had a theoretical death penalty within the time frame of my practice, I’ve never represented a defendant in a capital case. Thank God. I’ve never wanted to. I don’t want to. Call me what you will, but I hope to never be in that position. Never.
Jeff’s recounting of the experience sums it up.
During the brief period that New York had a theoretical death penalty within the time frame of my practice, I’ve never represented a defendant in a capital case. Thank God. I’ve never wanted to. I don’t want to. Call me what you will, but I hope to never be in that position. Never.
Jeff’s recounting of the experience sums it up.
And the family came up to me, not all of them and not together, but one at a time, his mother first. It was like a mantra as one after another saidYou did all you couldMeaning it for comfort. Meaning that it was all that could be done. Meaning that some god had chosen and I should know that I’d tried my best and they appreciated that. And I said to each of them, “Thank you.” Because what else can you say. But you know, there’s no comfort in those words.
It’s not that they’re empty. They’re meant sincerely, the motive is pure and the sentiment is all positive. But that’s from the speaker.
At your end, when your client has just been murdered and you’ve been powerless to prevent it, the only answer is that if this is all I could do, then I’m not good enough. And if it wasn’t all I could have done, then I’m neither good enough nor diligent enough.
In my mind, every case I try is a capital case in the sense that I take it with the utmost seriousness. Some clients think we see cases on a sliding scale of seriousness, with less consequential offenses sloughed off and more serious cases getting all the attention. That’s not true. Every case is treated like life or death; every trial is fought to be won. Anything less is a personal disgrace, a surrender and a waste of time. If you don’t try a case to win, you have no business trying cases at all.
But others become inured to losing. The obvious example is the lawyer who sleeps during a capital case. It seems unimaginable. Real lawyers agonize over trials and especially waiting for the verdict. Jeff uses his experience to jump over to Norm Pattis’ writing about waiting, day after day, for his jury to return a verdict in a murder case. Norm talks through the pain of waiting.
For days now, Norm Pattis has been agonizing on his blog ( here and here and here, for example) about the murder case he’s been trying.Norm’s jury came back, guilty on a lesser and hung on the top counts. That means he gets to do it over again. Jeff posts about the double jeopardy implications of this retrial, and reflects on how precedent justifies the illogic of giving the government multiple tries to convict despite the constitutional admonition that no person shall twice be put in jeopardy. But that’s the law, and they’re sticking to it.
As I say, I understand. All of us who’ve been there, understand. The cases are about the clients. But the agony is about us, too. Our adequacy, our skills, our competence.
But what of Norm? He’s pushing adrenaline through the roof waiting for the jury to utter the right words. Hung beats guilty any day, but isn’t nearly as sweet as not guilty. As soon as the words come out of the jury foreman’s mouth, your body deflates. All the energy drains out of you. You’re spent.
The thought of retrial is horrible. You o come to the first trial with an edge, psyched up to leap into the unknown, with your arsenal of weapons sharpened and a few up your sleeve that the other side knows nothing about. The ability to shock and awe your adversary and her witnesses is the moment you live for.
Retrial is an entirely different story. Norm says “there is no reason for the state to expect a better result next time,” but there is. Next time, they will clean up, smooth out, the gaps and rough edges of their witnesses’ testimony. There will be no surprises the second time around. Transcripts of every word spoken will be typed and read, and reread. The spontaneity of the first trial produces a genuiness of our arguments to the jury. The second trial comes off as rehearsed, lacking the raw emotion that electrifies the first trial.
All this works to the prosecution’s advantage. The greatest benefit is that they has the witnesses, and the witnesses always testify better on the second try. They’re still nervous on the stand, giving them the sense of authenticity, but have been well-schooled to avoid the pitfalls of the first trial.
The defense, on the other hand, has used up all its surprises in the first trial, and has shown his skills to everyone in the courtroom. Sure, some arguments can be better honed, and there are no surprises from the prosecution’s side either, But skill and surprise is a far more potent weapon for the defense than the prosecution.
My heart goes out to Norm, who has to hunker down and reach critical mass a second time to gear up for retrial. Thankfully, even if the jury foreman fails to say the word “not” before “guilty”, he won’t have to hear the comforting words of the family of a client who has just been murdered by the state.
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My practice has always been to pray the rosary while the jury is out. Figure it can’t hurt.
And yes the retrial. You’ve fired all your ammo in the first trial and you have nothing left in reserve for the second, or third, because as the defendant you have to put it all on the line the first time. There are no second chances for the defense, as a practical matter.
It is such a terrible rule, it is so obvious that double jeopardy was meant to hold the government to one shot at a conviction and no more.
Still, in some cases juries keep hanging. I know one from around here where the jury hung twice and then the third time there was an acquittal.
But you’re certainly right that the usual result on retrial is a conviction, no so much because the prosecution’s case gets better but because the defense’s best arguments and evidence have all been revealed and the prosecutor has plenty of time to adjust. Most of the time the trial is won or lost on the closing arguments, the prosecutor gets to go last (in NY) and if a defendant wins it’s because he was able to argue from some critical piece of evidence in his closing and the prosecutor didn’t have time to come up with an effective response.
Hope you guys are wrong. State gave a male-bashing argument that sounded like Sappho. I was surprised by that. Hoping that the it has lost element of surprise.
I hope so too. It’s a rule, which by definition must have exceptions.
The Michael Northrup case. Charged with murdering John Montstream in Monroe Co. at the request of wife Annette Montstream, then leaving his body in a van in a N.F. parking garage. It was tried in Niagara Co. twice. The acquittal came after a third trial in Erie Co. following a change in venue instigated by an anonymous leak to the media of Northrup’s written statement. The court had suppressed the statement. John Parrinello, Rochester, was the defense attorney.
A very sad case. But Norm may wish to know.