“I’ve got this case . . .”

Occasionally, I receive a telephone call or email from a new lawyer with a question or in need of someone to bounce some ideas off.  I’m happy to help if I’m not otherwise preoccupied, and much prefer this call to the one from the Avvo reader who wants to know if I can represent them for free because, well, that’s what they want.

What makes these calls interesting is that they come from people who spend a decent amount of time reading blawgs, staying abreast of caselaw and often thinking very hard about way in which to help their clients.  In many respects, this is about as inspirational as it gets, knowing that there are young lawyers who really want to serve their clients, win their cases, beat the system, and are willing to put in the effort to give some serious thought to doing so.  

These aren’t the lazy schmucks, looking for someone else to do their legwork or spoon-feed them the obvious, easily found if they put in an iota of effort.  These are lawyers looking at tough situations, maybe even impossible ones, and hoping that another set of eyes can help.  These are the lawyers who we really want to help, who we admire and see as the future of the fight.

A problem that comes up all too often, however, is the desire to find the brilliant solution, the killer defense that will revolutionize the law and take the loser case and turn it into the huge win.  It’s understandable, both from a personal perspective as they have grand visions of their success, as well as their immersion in outlier cases and decisions.  We spend an inordinate amount of time talking about the unusual, whether good or bad, in the law.  The norm, as Amy Bach wrote, is ordinary injustice.  Nothing fancy.  Nothing unusual.  Just pedestrian, everyday, ordinary injustice.

I recently received a question about a situation involving a failure to turn over exculpatory information, a victim who identified someone other than the defendant as the shooter, until it was too late to lock it in and make it stick.  The explanation was that the cop who took the statement would testify that the victim was incompetent at the time the ID was made, and was clearly incompetent now.  Had the defense known, it would have put the victim and statement before the grand jury and preserved it for use at trial when the victim was no longer capable of testifying.  But the defense didn’t know and the victim’s statement was now left to the interpretation of the cop who took it.

Note: This is just an example, not the point of the post.  I have not provided enough of the background for anyone to pose any meaningful ideas on the case.  Please do not offer your thoughts on how you would handle the situation or I will ridicule you unmercifully, alter your comment to make you look ridiculous and then call you mean names.

The question posed was about remedy and preclusion as the sanction for the Brady failure.  First, the defense needed to get the statement before the jury.  Second, the defense needed to prevent the cop who took the statement from testifying the statement was worthless as the victim was incompetent when it was made.  Either way, the ID of another as the shooter would be rendered worthless. 

The argument, that this dilemma was created by the prosecution’s failure to alert the defense to the exculpatory ID was sound.  The prosecution’s response was that it wasn’t Brady since it was made by an incompetent victim, the old circular argument that it isn’t Brady if the prosecution doesn’t believe it.  While this doesn’t quite wash, it’s more than enough to remove the taint of a deliberate withholding of Brady for malevolent purposes, a finding that only the rarest of judges would reach under only the worst of circumstances.  That’s just how it goes.

I was asked whether and how this remedy and sanction could be achieved, whether the theory was correct.

There’s a tendency to become myopic when striving to find an answer to a troubling question.  You start down a path and then continue to push, hoping to break through brick walls and overcome insurmountable obstacles.  Unfortunately, the zeal of making a theory work sometimes blinds you to easier paths.  This happens all the time.

My reaction to the question was that the judge would be hard-pressed to refuse to allow the exculpatory identification in, he would similarly be hard-pressed to refuse the prosecution’s rebuttal witness, the cop who would testify that the victim was incompetent.  Since Brady remains one of the great jokes of the law, whether it exists and when it must be disclosed, the imposition of such a severe sanction as preclusion of testimony would only be available if the defense could show the failure to disclose as deliberate and designed to conceal and deny this evidence to the defendant.  Given the availability of a somewhat rational explanation, even though wrong, the likelihood of a judge imposing it was slim.  Very slim.

On the other hand, a shooting victim would receive medical treatment, meaning there would be medical records, doctors, and nurses who would be in a position to testify that the victim was alert and competent to make a statement, and that the identification of the shooter as someone other than the defendant was accurate and credible.  Of course, trying to find these witnesses wouldn’t be easy, and it was certainly possible that after all the effort to locate them, the defense may learn that the victim was indeed incompetent, if the witnesses had any recollection of the victim at all. 

The point is to consider whether to lock the defense into the low percentage play, the one in a million shot of winning the outlier ruling, or to spend the time and effort on the higher percentage play.  Should there be no witnesses, the long shot would still be available, but to go straight for the low percentage play would be to deny the defendant his best opportunity. 

It’s the legal version of heroic efforts, the killer win.  We see if often in the media and blawgosphere, because it’s the rare and bizarre that makes news and generates interest.  And every once in a while, sometimes once in a generation, we come up with a spectacular win, a Gideon or a Miranda.  Even a Brady.  A game changer.  We all want to be responsible for a game changer.  Who wouldn’t?

But for every win that makes history, there are thousands of spectacular defeats.  Often, it’s the same argument, as cogent and correct as they may ultimately turn out to be when a court embraces it for the first time, but crashing and burning the first time made.  Maybe even the first 100 times made.  And each time the argument crashes and burns, there’s a defendant and his family that goes down in flames with it. 

What tends to distinguish the spectacular win is that the defendant whose name becomes a household word was left with no other choice.  Every avenue was closed, and going for broke was all that was left.  You know, “freedom is just another word for nothing left to lose.”  We can afford to get a little crazy when that’s all we have left, and it’s often the crazy argument, the out of the box defense, that gives rise to these spectacular wins.  The problem is that the vast majority of these efforts produce stunning defeats.  Fascinating cases for lawyers, but horrific losses for defendants.

I hate throwing cold water on an interesting theory, an audacious approach, especially when it’s one that could have a monumental positive impact if it prevails.  Like everyone else, there’s a voice in the back of my head that spurs me on toward changing the unfairness, the injustice, the ugliness, pettiness and nastiness of the criminal justice system, when I see that special case that offers an opportunity to make a grand statement.

But I’ve got a client to represent.  As much as it would be beyond cool to come up with a complex, sophisticated, game-changing theory that would make my client’s name a household word, the interests of the defendant have to come first.  Always use the most viable defense, the one with the greatest chance of success, over the spectacular.  Better to be a hero to one, even if it means passing up the one in a million chance of being a hero to all.