Another Sunday morning, and a lawyer’s fancy turns to defense strategy.  We have all met the client who comes to us with a story about what really happened that is just plain bad.  The client insists on his innocence.  He swears he is innocent.  We press a few of his buttons to attempt to make the client understand that innocence won’t make us work harder, doesn’t impress us and won’t get him a dinner invitation.  He doesn’t care.  He is innocent.

But his story of what happened is horrible.  It’s irrational.  It’s unmarketable.  We listen, hear the holes and logical gaps, and realize immediately that it is not a story that can be sold to a jury.  It makes him look either idiotic or insane.  Pick ’em. 

We push some more buttons, under the belief that when confronted with the reality that the story stinks, perhaps he will back off it and realize that what seemed like a brilliant story in the confines of the back seat of a police cruiser to him may not play as well in front of a jury.  Perhaps he will reconsider (assuming he hasn’t already spilled his guts to the police with this brilliant tale of woe that, in his mind, should totally exculpate him).  No dice.  It is the truth, he insists.  No, demands.  It is the truth.

There are two possibilities at this point.  First is that he is psychotic, incapable of distinguishing reality from the delusion that persists in his mind.  If this is the case, our course is clear.  Have the client evaluated for competency and deal with the outcome.  The client may not be crazy enough to be legally not responsible, but it may serve to either negate intent or mitigate sentence.  One of the things we should all have in our rolodex is the card of a great psychiatrist and neuro-psychologist.  They can be indispensable, since we aren’t competent to diagnose anybody of anything.  We should, however, be capable of knowing when an evaluation is needed.

The second is that he is indeed telling the truth, with tends to be in direct inverse proportion to the degree of insistence relative to this terrible story.  In other words, the most strenuously he insists that a bad story is true in the face of being told that his insistence will mean the demise of his defense, the more likely it is true.  This is loser truth.

We are now in an ethical quandary.  If our client insists that he is innocent, and that the story went down as he relates, we are ethically bound to pursue a defense not inconsistent with his truth.  We cannot call witnesses to testify to facts that the client insists are false.  We cannot press the client to change his story for the sake of expedience.  We are locked in to a position that we believe to guarantee conviction, and a client who insists that he would rather go to prison than lie about what happened.  Why?  Because this time he is innocent, and he is going to tell the truth.

This is another of our many “nightmare” scenarios.  As criminal defense lawyers, always fighting the uphill battle, we want to provide our clients the best possible defense.  No one wants to go into battle with a hand tied behind their back.  But then, our job is to zealously represent our client within the bounds of the law.  We are not entitled to do whatever we have to do, including ignoring the client’s version of the truth because it’s a lousy story. 

Aside from the variety of weapons that are generally available, such as suppression or speedy trial, that have little to do with the defendant’s perspective on the case, we feel a bit vulnerable at this stage.  We have an “innocent” client (meaning one that refuses a plea offer even when told that his chances of prevailing are slim) and a defense theory that fails the sniff test.  Not a good situation.

At this point, many lawyers start to rationalize that whatever happens is not their fault, since the client has made his own bed.  Here’s the point:  Don’t give up.  No one wants to go to trial thinking in advance that he’s going to lose.  It’s depressing and takes all the wind out of you.  And it is a self-fulfilling prophesy.  Think you’re going to lose and indeed you will.

Consider instead that this scenario frees you from all constraints.  This is your chance to go into flights of fantasy, to go for broke.  Consider that every silver lining has a dark cloud in front of it.  And you are staring at a very dark cloud.

Your approach to the jury should encompass certain banal considerations:

Every defendant is presumed innocent, not intelligent.  Your client may have acted/reacted in a way that the jury will find to be foolish, even mind-bogglingly stupid.  We are not all geniuses.  Some people, like the defendant, are at the lowest end of the spectrum.  They are allowed to be stupid.  That’s not a crime.

So when the prosecution argues, as they invariably will, that no innocent person would behave in the fashion that the defendant did, your response is that the prosecution is wrong.  A stupid person does what stupid people do.  I call this the Forest Gump defense. 

Next, the prosecution will argue, and the jury will believe, that “normal” people (whoever they are) conduct themselves in accordance with societal norms.  When your client’s actions/reactions fall outside those norms, they become proof of guilt.  We need to paint the picture of “societal norms” that our client sees, rather than what the prosecutor or jury sees.  Interestingly, the jury may well see 12 different versions but never realize that they all see norms differently.  Chances are that none of those 12 versions will look anything like our client’s version.

Whether the defendant is a street kid or a corporate CEO, he has a peer group with peculiar standards by which his conduct is compared.  When Dennis “The Menace” Kozlowski’s $6,000 shower curtain splashed across the news, it made him sound like a classless cad.  But this was how the newly minted near-billionaire behaves, something that few of us can relate to.  So what if your client is a tacky, nouveau riche Philistine.  That’s not a crime.  A reason to ridicule, obviously, but not a crime.

Finally, the argument of last resort:  Sometimes really bizarre, unusual, extraordinarily unlikely things happen.  Whether because the defendant is weird, or a confluence of peculiar events, or one foolhearty reaction begat a series of events that under other circumstances would never occur, they do happen.  This would be the time to try to slip in, under the judge’s radar, the argument that the defendant would not be here given the wealth of evidence against him if he wasn’t innocent (objection, sustained). 

Doctors use an aphorism, “when you hear hoofbeats behind you, don’t expect to see a Zebra.”  But then, sometimes it is a Zebra.  Zebras do exist. 

These arguments are offered as examples of how you are forced off the beaten path when your client comes to you with Loser Truth.  They are hard positions to take, and have a high probability of losing. But when your client insists that he is innocent and there really was a Zebra behind him, your duty is the give him the best damn trial you can.  And from experience, I can tell you that there is enormous freedom in trying the impossible case, and this freedom empowers you to say and do things that you might never otherwise consider.  And sometimes, there really is a Zebra behind you.

There are a number of posts around the practical blawgosphere this week about dealing with judges and prosecutors who are rude, offensive, overreaching, whatever, here (Bennett), here (Katz) and here (Matlock).  Bennett has the best quote, 

             As Paladin said, “Never draw in anger. It slows the hand.”

While I share his fascination with Paladin, he knows a lot more about the show than I do. 

I learned an important lesson about a decade ago from a great old time Bronx judge, Danny Sullivan.  Danny was one of the real judges, not one of the kiddie judges who need to buy their robes one size too big in case they grow.  Danny knew what end was up, and neither side was going to bulldoze him.  He feared nothing, as he had nothing to fear.  And to make matters worse, he was just a good man.

I was lead counsel in a big case before Danny.  It was a little daunting, as there were plenty of defendants and some had retained some very well known, and older, lawyers than me.  These lawyers didn’t know me, and there were rumblings that one of the big shots should take the lead rather than some young turk (hard to believe now that there was a time that I was considered a young turk). 

But I told them that I had it under control, and to sit back, get paid and let me do the work.  They seemed to be just fine with that. 

The ADA was a nasty will person, prematurely bald and with a tendency for his voice to rise 2 octaves when he got excited (which was often).  He was a weasel.  He was intent on winning, and he would happily connive to achieve that goal.  He’s now a defense lawyer and he asked me (after he left the DA’s office) if it was ethical to pay the hot dog guy outside the courtroom to refer him clients.  I told him “absolutely”, knowing that the hot dog guy was getting vig from at least a dozen former prosecutors already, and was making a killing off these idiots.  I know, me bad, but I couldn’t help myself from joining in the joke.

So, to impress my renown co-counsel, and to beat the living daylights out of this smarmy prosecutor, I whipped out one of my greatest motions, a 127 page wiretap motion that was (if I can brag a moment) nearly perfect, in a week.  Everyone’s head spun, especially my nemesis.

A month after arraignment, we were all back in court to argue the motion before Danny.  I did my thing, in a cool, detailed, professional manner.  And then the ADA did his, voice climbing and raising claims that were false, outrageous and deceptive.  As soon as he took a breadth, I jumped back into the fray, but this time louder, faster and with anger.

Danny put up his hand, pretended to need something from his clerk, then waved us up to the bench.  He looked at me and said, “When you started, you were smoooooooooth.  Don’t give it away.”

We returned to our tables and now, calmly and with a voice slightly softer than everyone else, I picked apart the significant points made by my adversary and announced that his other points were simply unworthy of further comment. 

The message was clear.  Don’t let someone else make you lose your cool.  Once that happens, they control you.  Over the years, I’ve used this lesson well.  The louder, angrier, crazier things got, whether because it was the judge or prosecutor, the calmer I became.  The softer, more dulcet my tone.  The slower my speech.  When their faces were contorted in anger, mine bore a calm demeanor, often with just the slightest hint of a peaceful smile.  Like Paladin, I would not draw in anger.

It has an extraordinary affect.  The judge or prosecutor is red-faced and out of control.  I am serene, in total control of myself and, ultimately, the courtroom.  By their loss of control, they have ceded it to me.  Try this and see it for yourself.

In the past, I’ve posted about the impact of strategic silence.  There are times when you need to express anger or outrage, and the failure to do so sends a message that something that is facially outrageous doesn’t really matter that much to you.  But when these times come, they too must be deliberate on your part and not a knee-jerk reaction because of what someone else said.  At the lawyer, you must be in control of everything that comes out of your mouth.  You are responsible for your actions and reactions, and if you let your conduct be dictated by someone else, then they control you. 

Danny passed away some years ago.  I went to his funeral, the only time I’ve ever done so with a judge with whom I didn’t have a personal relationship outside of court.  It was my way of letting him know how much I appreciated his lesson. 

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.