Sunday, May 27, 2018

Grace in the Strangest Place

One of the facts of life when you work as a criminal defense lawyer is that you are going to, quite often, be the object of anger from a large part of the general public and, especially, the family and friends of crime victims. Indeed, the title of this haphazard blog comes from a question, more an accusation really, that has been posed to me a few times. It comes with the turf, and you have to learn early to tune it out. I actually go further and embrace the feeling that everyone in that courtroom, at the very least, wants me to fail and often actively wishes harm upon me. It motivates me, to be candid. There is a not-insignificant part of me that, in some regard, relishes being hated. But that's a far deeper dive than I will impose on you right now. I have been threatened (both overtly and more discreetly), cursed, damned (lots of times) and glared at on a regular basis over the last twenty-plus years of working in the area of murder and mayhem. To be fair, if there's a Hell, the people who have urged that I go there and those who have advised that that is where I am destined to reside are likely correct, although I would disagree with their reasons. All of that was turned on it's head this past Friday afternoon in a way that I was not expecting.

I finished a fairly lengthy trial on Friday afternoon. My client was charged with four counts of murder and one count of attempted murder arising out of two incidents roughly forty-eight hours apart. The case had attracted a fair amount of notoriety in part because a quadruple murder trial is pretty rare, but more because one of those killed was a young woman who had been a contestant on the reality TV show "America's Next Top Model".

My client's co-defendant had actually gone to trial and lost last year on these charges, and I had watched most of that trial. In almost all murder trials, one of the first witnesses will be a family member who identifies the decedent. It is often emotionally charged. At the trial last year, when the Assistant District Attorney was questioning this young woman's mother, she recounted how they had come to the U.S. in the 90's when the girl was an infant, fleeing the hideous war and genocide that was wracking that country and the surrounding areas of the former Yugoslavia. I am of Croatian descent and have Bosnian friends who fled to the U.S. under the same circumstances, so I was far more interested in this testimony than I would normally be. When the ADA asked the woman what her daughter's job was, she pointedly answered that she was a cashier at an eating establishment. No mention of a modeling career. When asked how long she had  been living where the incident took place (she was residing with her new boyfriend who, not coincidentally to the case, was a heroin dealer with lots of cash) the mother again made the point that her daughter had moved there from their home two weeks prior and over the objections to and without the permission of her parents (the young woman was 19 at the time).

Flash forward to our trial. The mother again testifies, still obviously torn up a the loss of her daughter three years ago. Again, she refuses to mention anything about modeling, again makes it clear that her daughter worked a job as a cashier, again makes it clear that her daughter moved over her objections and concerns. As the trial played out, she was there for every moment of the two weeks, often with tears in her eyes. And I never saw a glare towards me or my client. Not in the courtroom, not in the hallways. Even during the two long days of jury deliberations, when it was clear the jury was struggling in their decision. After over eight hours over two days, the jury came back at 4:00 p.m Friday with a verdict.  They acquitted my client in the incident involving one murder and one attempted murder, but convicted him of the three murders in the second incident, the one involving the woman's daughter. None of the family chose to speak at sentencing.

After court was adjourned, I took my time packing up my files and exhibits. I always shake hands with the prosecutors and thank the deputies, clerk, and court reporter. I spoke for a few moments with my client's family about issues like appeal and where and how he would make his way through the prison system. They thanked me and left. Eventually, I made my way out into the hallway and over toward the elevators and took a few minutes to check my messages and emails. When I looked up, the young woman's mother was walking up to me. She put out her hand, and I shook it. In heavily-accented and somewhat halting English, she told me that she understood what my job was and that she bore me no anger. There were tears in her eyes. I told her I was truly sorry for what had happened to her daughter and we found that (unsurprisingly, as the Bosnian community in Charlotte is fairly tight-knit) she knows the Bosnian friends I have. And I told her that I understood what she and her family had faced, and that they thought coming to America would save them from that horror, and how that must make all of this even harder. And she cried a little more and said "yes", and shook my hand again. And thanked me. And that's when I realized I had tears in my eyes too. I've been doing this a long time. That's the single most gracious encounter I've ever experienced. I cannot imagine having the strength to do it myself. I'll never forget it.

Sunday, February 11, 2018

Everything Matters

I finished a trial mid-morning on Friday. If your first question is, "Did I win?", the answer is, as always in criminal defense, dependent on your definition of "win". My client was not acquitted. He was sentenced to a rather lengthy term in prison. But I convinced the jury to find him guilty of a lesser charge, and I convinced the judge to impose the least amount of time possible. So, a win? Certainly not. But a loss? Not entirely. However, the result of the trial and the sometimes shifting definition of win and loss in criminal court is not the topic today. Rather, I want to talk about a lesson I've learned several times over the years, but which needs relearning (at least for me) again and again. The lesson, and therefore the title of this post, is that in trial (as with most things) everything matters.

After the trial was over, I spoke to several members of the jury. I don't always do that. Speaking with juries can sometimes be a frustrating and near-infuriating experience. But a good portion of the time, I learn some things in the dialogue. Such was the case this time. A couple of the jurors told me they were initially puzzled as the evidence started to come in. Why was there even a trial? The State had surveillance video, credible witness testimony, a lineup identification, and admissions by my client to police. But they told me they could tell I was taking the matter seriously, and not just phoning it in. One of the jurors said it was clear from my questioning that I was leading somewhere, even if they didn't see it at first. Another juror said the way I dressed, the way I spoke, even the way I buttoned my jacket whenever I stood told her that she should pay attention to what I said. The defense theory of the case was not that nothing happened, or even that it wasn't my guy. Rather, I was arguing that the client had not committed the crime charged. That the State was overcharging and overreaching, and that justice and the rule of law required them to not simply accept the charge in front of them. This is not usually a popular argument, but you have to work with what you have. As I said, it worked, at least to a degree. I had hoped to convince them of an even lesser charge but the judge had not permitted that charge to be considered. Once again, however, the point is that it was the little things that got me results, even down to dressing and conducting myself professionally. It wasn't that my arguments were so dazzling as to to be irresistible but more that attention to detail caused them to listen in the first place.

I've learned this lesson many times over the years, but it's easily forgotten. The ego becomes enamored of one's own perceived brilliance, and it becomes easy to convince yourself that all you need is for the jury to hear your scintillating arguments and all will be well.  But that arrogance can come through to a jury, and they simply won't listen to you, no matter how brilliant the argument. In some regards it's a humbling lesson. But it's also empowering. Taking care of detail got a result that simple argument may well not have. So, no matter how difficult or daunting the situation, focus on doing the little things right. Enough of the little things will often add up. Win? Maybe not. But not a loss. And that's something.