Sunday, May 15, 2011

Discovering and Showing a Case Theme in Trial with Trial Lawyers College Methods

by Cheryl A. Carpenter, TLC 2000

My client R is a 27 year old man. He was criminally charged with sexually assaulting and raping a 14 year old gir. He was recently found not guilty after a jury trial jury. I could not have gotten justice for R without assistance and support from my brothers and sisters at TLC. All of you were involved in this case if I didn't talk to you about it. This is because of what I've learned from all those involved with TLC. TLC is a source of wisdom and support for me. Special gratitude to Marj Russell and Rafe Foreman. Read on to see why.

Here are the brief facts: R (my client), 27 year old man, met a 14 year old girl, D, on an internet dating website. It was more risqué than and had photos of scantily clad or partially naked people on the profile pictures. Both R and D were on the website and started chatting via email and text messages. After about 2 months of talking, they set up a meeting. R thought he was meeting a 18 year old girl, not 14 year old. Still not good, since 18 seems young for a 27 year old. They met and R had doubts about the age of D but still went ahead with the date. The date turned into a two hour time frame of running errands plus a trip to R's house. During the time at the house, D alleged that R had sex with her. She claims she said stop but R allegedly said, "I'm not stopping until I'm done." (This alleged element of force doesn't matter since R is charged with statutory rape). D said she was told to take a shower after the sex. D immediately told 2 friends. She kept it from her mom. Mom finds out through grapevine a few weeks later. Mom confronts her daughter. D finally says she had sex with R and goes to hospital for rape kit and interview with cops. R is charged.

R has trial with other counsel. Hung jury. Because of fear of re-trial, R pleads guilty with a promise of probation and no jail. After the plea, the horror of the sex offender registry sinks in. R loses a job he had for the last 10 years. R is threatened that if continues to live with his girlfriend and her 10 year old daughter, Child Protective Services will come out and take kid away from mom for failure to protect. R calls me. I am able to convince the judge to withdraw the plea. Judge tells me, "Cheryl, I didn't see a motive for this girl to lie during the first trial. Is your client sure he wants me to grant this motion?" I told the judge I will present a motive to lie. Judge smiles and grants the motion to withdraw plea. New trial date is set.

I bring in Marj Russell to help me discover the story of the case. I cannot tell you how essential this was. Marj is brilliant. We reenacted the incident with R. We learn a lot. We also go to R's house where the alleged incident occurred. Marj, R and I are in the basement where D says she had sex. D has testified earlier that she walked naked from the basement bedroom to the bathroom because R told her to take a shower. Marj takes this walks and says, "No female would walk this naked, especially if they were just raped. D would have wrapped a sheet around her or put her clothes around her." At trial, I cross examined D about this naked walk. It was a chapter in my cross. Afterwards, a 60'ish female juror told me, "I could not believe D took a shower because I would never make that walk naked. I'm too self-consciousness." Thank you Marj, for helping me find this gold nugget. We only figured this out by being at the scene and feeling it.

Marj also helped with case theme of lie spinning out of control and lies for different reasons. D lied to friends to save face from rejection, lied to mom so not to get in trouble, and lied to police to possibly protect another boy. This is good stuff. In these cases, understanding and explaining the motive to lie is paramount. Judge already told me he didn't see one in first trial and I know I'd never get a jury to acquit if I didn't have a believable motive to lie.

I also had several telephone calls with Rafe Foreman about this case. I tell Rafe about my fears of this case that R should never have picked D up. She is too young and R should have seen this right off the bat. Why did R even spend a couple of hours with D unless he wanted to and did have sex with D? Rafe listens, feels my fears, and helps me turn story around. He tells me how it takes him a long time to determine the age of a person. Rafe helps me reverse roles with my client to see that he was only doing what any other man may do

I also work on a mock voir dire with Marj with her law students. This was a very important piece of trial prep work. Practicing the voir dire was helpful but the feedback from the jurors was the pot at the end of the rainbow. I will never forget a mock juror telling us afterward that she had something to share but nobody asked her to share it. I made it a point in my trial to specifically say to the jurors, "If anyone of you have something you want to share but I didn't ask the right question, please share that with us." I will always remember to give jurors a chance in voir dire to say anything that is on their mind and I will specifically ask this general question.

The weekend before the trial comes. I don't know about you, but I get the panicked, about to jump off a ledge, feeling before a big trial. I call Rafe again. He talks me off the ledge. He helps me focus. We refine my voir dire. He also gives me the nugget of reversing roles with the jury in the beginning of my closing argument. I use this nugget and tell the jury, "If I was sitting next to you, as your fellow juror, I would be thinking. . . why am I even here? The officer in charge has suspicions about the truthfulness of D's story. D's mother thought she was lying in the beginning. And D told me that she doesn't even want to be here." I go stand next to R and tell the jury that they are here for R. They are here to stop the madness. To stop the nightmare he's been living with. My villain was the cops and prosecutor. I told the jurors I felt bad for D. I could understand how she got to where she was. What I didn't understand is how the cops failed to investigate for exculpatory evidence

Lack of investigation a big theme. I got cops to testify they didn't go to R's house to look to see if there was a bedroom in the basement because all evidence would be gone after 48-72 hours. I said this is for incriminating evidence. But evidence to show that R didn't do it would still be there. I painted a picture of different police jurisdictions handing the case off. I got one cop to say he didn't do anything else on it because it was out of his hands. He had already passed it on. He didn't need to worry about it anymore. Got cop to say this wasn't an important case for him. The ones where kids snatched off street were important but this wasn't. He put it on back burner. I ended my cross with, "Don't you think this is of the upmost importance to R?" Cop said yes. Then I said he said/she said cases physical evidence is important. Yes. If don't have this, details about incident from complaining witness are important. Yes. In this case, D didn't give you many details. Yes. This made you suspicious of the truthfulness of D's story. About a 15 second pause. Cop was begging prosecutor to object she didn't. Cop finally answered, "Probably." BINGO. No further questions.

During voir dire, I finally committed to standing in silence until jury shared with me. I usually chicken out and ask another question rather than stand in silence. I stood in silence for 60 seconds. That is an eternity. Then I said, "This is so hard for me to stand in silence. It's so hard not to have any of you to answer." The jury laughed in unison. It was like we released tension together. After this, the jurors were talking. Three woman dismissed themselves for cause when nobody was questioning them. It was after I went and sat down. In a courtroom filled with silence as replacement jurors are walking to the box, the women just raised their hands. They said they weren't the right kind of juror for this case and couldn't be fair to R. I felt such gratitude to these women.

During my cross of D, I used the empathetic cross I learned at TLC. I always picture Maren Chuloupka turning the pages of a book when I do this and I'm talking to my young sons. I told D how hard it must have been for her mom to confront her. How it must have hurt to have her mom's first words be, "Are you having sex?!" How much she didn't want to go to the hospital but she couldn't stop her mom from taking her there. At this point, D said, "My mom said if I didn't tell the truth, she would take me to the hospital and the doctor would examine me and find out if I had sex." Wow. This had never been mentioned by D before. Not in preliminary exam testimony, to cops or during first trial. D disclosed this to me, of all people the atty who is cross examining her. This shows the power of an empathetic cross.

My trial wasn't my trial. It was all of yours. For every single Warrior. I specifically thanked Marj and Rafe, but you were all a part of it. To quote David Smith, "Thank god I'm a Warrior!"

Friday, May 13, 2011

In Kansas Courtroom, Echoes of Rwanda Genocide

Kurt Kerns, the lead defense lawyer, is a TLC staffer and 1998 graduate.

WICHITA, Kan. — The faces in the jury box are a cross-section of southern Kansas. The judge has a white beard, wears a bow tie and speaks in the straightforward language of the Great Plains. One defense lawyer favors cowboy boots and sometimes dons bolo ties.

But they are listening to testimony about a place and time in a village half a world away. On the stand, a diminutive Rwandan man with gold-rimmed glasses talks in his native language about how he participated in the murder of his neighbors during the ethnic massacres in Rwanda 17 years ago.

The witness, Valens Murindangabo, is asked about a moment on April 17, 1994, when two Tutsi teenagers were captured by Hutu men in some woods. He glances at the defendant, Lazare Kobagaya, an octogenarian with a cane, whose gray head can barely be seen above the back of his chair.

“Kobagaya said, ‘Wipe them out, kill them,’ ” Mr. Murindangabo testifies. Then he says one of the men hacked the boys to death with a machete near a watering hole while Mr. Kobagaya watched from a few yards away. The defendant puts his palm to his forehead and shakes his head sadly. He dabs tears from his eyes with a handkerchief.

Akron Law Faculty Profile: Dana Cole

from the Akron Law Magazine


Faculty Profiles

Law Lessons: Dana Cole (TLC Staff and 1995 Graduate)

Associate Professor of Law

I had planned to go to graduate school in psychology, but then I met a great lawyer named Ron Schultz. Ron told me stories about his cases. Oddly, the story that had the greatest impact on me was a story about a case he lost. As he spoke, tears filled his eyes. He obviously cared about his client and he worried she wouldn’t get the help she needed. Ron was a masterful storyteller and he was obviously proud of his profession. I thought how wonderful it must be to feel so passionately about your career and the people you represent. I took the LSAT, applied to law school and was accepted – but I was very intimidated by the thought of law school. Two weeks before classes started, I withdrew and once again turned my attention to graduate school in psychology. The following year Ron gave me a book titled Gunning For Justice by Gerry Spence. After I read Mr. Spence’s book, I was convinced that I wanted to be a trial lawyer. One year later I was in law school. It was a good decision. I honestly believe being a lawyer is the greatest thing you can do with your life.

How can I represent someone I know is guilty?

It has been my experience that everybody is redeemable. I haven’t had a client yet who I didn’t find compelling in some way – even loveable. I also found that many of my clients are overcharged. In other words they may have done something wrong, but they are charged with more serious crimes than their conduct warrants. Sometimes people just need a second chance. In my career I have represented several utterly innocent people. The bigger issue for me has been the pressure of representing an innocent person charged with a serious crime. The stakes are so high. Frankly, I prefer to represent the guilty and to try to walk them out of harm’s way, but I will certainly take an innocent client’s case. A friend of mine has this slogan on her web site: “For the wrongly accused – and even if you did it”. Criminal defense lawyers are a special breed and public defenders are the heroes of the profession. I don’t expect everybody to understand it.

Before I met Gerry Spence and went to his Trial Lawyers College, I went into the courtroom and put on the mantle of lawyer. I hid my fears and nervousness from the jury. I presented my clients and my witnesses as pristine, perfect people. Mr. Spence taught me that the jury can see through our phoniness – that it’s far more effective to be sincere and transparent with them. You can’t expect jurors to trust you if you don’t first trust them. I can’t really present my true self to the jury unless I know myself – so there’s a great deal of introspection involved in the program at the Trial Lawyers College. In my Trial Advocacy classes I try to teach my students to bring more of themselves to the surface – to let the jurors see who they are. We try to get rid of the lawyerly language – to be real, accessible human beings.

There are parallels between the classroom and the courtroom. In fact, I think that the right metaphor for trial lawyers is teacher. Trial lawyers are referred to as advocates, storytellers, champions and salesmen. All of these concepts are useful and serve to explain different aspects of what we do as trial lawyers. But the metaphor that is most prominent is that the trial lawyer is a warrior – which literally means ‘one who wages war.’ The warrior metaphor is valuable in the right context and I am not suggesting we abandon it. But if we see ourselves primarily as warriors when we are in trial, we will not have the appropriate mindset to develop a trusting relationship with jurors. Jurors don’t really respond to people who are mean-spirited or oppositional for the sake of being oppositional. I don’t want jurors to see me as a combatant. Jurors are looking for the truth. It is far better if they see me as a guide. The warrior mentality will cause us to think and act in ways that will likely interfere with establishing a good rapport with jurors. Our goal will be to attack rather than educate, defend rather than reveal, protect rather than trust. We have the right attitude in trial if we envision ourselves principally as caring teachers.

TLC Graduate Rick Kammen recognized for contributions to legal community

By: Betsy Green, TLC 2005

Our own graduate and staff member, Rick Kammen, TLC 2000, was recently named a Distinguished Barrister here in Indiana. No one deserves recognition more than Rick. He works tirelessly to save the lives of those facing the death penalty. He is the best criminal lawyer in the state. Here is an excerpt from the Indiana Lawyer article about the award:

Rick Kammen named Distinguished Barrister

Attorney Rick Kammen was recently named a "Distinguished Barrister" by the Indiana Lawyer, a statewide newspaper covering the legal field. This award recognized 15 Indiana attorneys for their exemplary leadership both in the legal profession and in their communities. In describing the qualities that earned him the award, the Indiana Lawyer mentioned his experience in federal death penalty cases, his vast teaching experience, and his skills at mentoring. Quoting KMM attorney Mary Spears, the paper went on to note his "rare gift" at mentoring young attorneys and allowing them the space to contribute to cases.

And, while I am bragging on Rick, I will add a link this recent article about yet another federal death penalty case where Rick has been appointed to assist as well:

"Indianapolis attorney Rick Kammen, who's handled more than a dozen federal and state death-penalty trials, got the appointment approved by retired Navy Vice Adm. Bruce MacDonald on Wednesday in a letter. Kammen is now authorized to travel to the remote base in southeast Cuba at Pentagon expense to help defend accused war criminal Abd al Rahim al Nashiri."

Read more:

TLC Local Groups Session in Houston

By Jim McMillen, TLC 2001

I was fortunate to be a part of an outstanding TLC session at Ron Estefan, Andy Vickery, Andy Rubenstein, and Todd Kelly’s office here in Houston to help Marinia Douenat prepare her client for a Medicade Fraud trial. Marina is with the federal public defender’s office in Houston. These Warriors have a courtroom in their offices. Ron Estefan directed and did an outstanding job. It was a full day and worth every minute we spent. There was a very good attendance of some of the best warriors and Marinia brought her entire crew that is assisting her to prepare for trial. Some of the warriors flew in from out of state to help Marinia prepare for trial. It is a tough case with difficult issues, but I believe she will be ready to try it.

The session established how important it is that follow the structure of a psychodrama session that we learned at the ranch instead of a hap hazard approach. Effective use of the tools we learned and innovated approaches are important, but so is the structure we learned at TLC.

Ron began with a warm up session similar to the warm ups we use in the barn. Then Phillip was introduced as our protagonist. As the session progressed all of the tools we use became a part of the session. Phillip and the non TLC attorney and individuals immediately became involved. It was an intensive session that lasted a whole day including the sharing part of the session. At the end we all expressed the problems we felt Phillip and his attorneys would face in the case so they could work on them. We ended with our circle of confidentiality.

It reminded me of my own psychodrama at a psychodrama workshop with Katlin directing. I was the process of divorce in a long term marriage depressed and a mental mess. I was trying to find the answer what went wrong and how to move into the future. I was disturbed at what part my role as an attorney played. Katlin quickly saw that it was time to introduce “Justice” as a role character into my psychodrama. It was a brilliant move. I was able to express my anger, pain and hurt to “Justice”. It was the breakthrough I needed to start the healing process and to move in the right direction. In was one of those moments of understanding in life. Often we associate only real people in our psychodrama and forget that we can introduce inanimate objects and concepts as character roles that can lead to break throughs. It is important to remember this.

Thanks to Ron those in his office and all those who attended for a great day– TLC is alive and well in Houston. I have a couple of jury trials coming up soon with significant emotional damages and considering asking the TLC warriors in Houston and others who can attend to help prepare the witnesses. The skill level of the Houston TLC warriors is extremely impressive and they are always willing to help.

I love trial warriors.

Thursday, May 12, 2011

Joe Beat City Hall

By Christopher J. Youngs, TLC July 2010

Joe is a lieutenant with the city Fire Department here in Meadville, Pennsylvania. The Department is small - only 15 members. And Joe screwed up bigtime. In addition to his firefighter duties, Joe is a state certified fire instructor. He teaches firefighting skills all over the region, through a certification he receives from the State. Joe has just been fired for fraudulently doctoring the training records of a fellow firefighter. In his capacity as a state certified instructor, Joe certified that his colleague attended certain firefighting classes. But he didn't attend. Joe and his friend cheated and they got caught.

Joe's only option is to appeal to the city Civil Service Commission. The Commission recently upheld the firing of another firefighter for lying about his residency. We feared the Commission would rubber stamp the city manager.

Our case is all about mitigation. What Joe did is not all that bad. It just looks that way. Joe's friend already had the skills taught in the classes he skipped. However, a friend acquired his skills through out-of-state training, and Pennsylvania would not accept his credentials. In my office, Joe is scared badly -- barely articulate. He has a hell of a time even saying his name. Joe has to testify, and I have to use his abject fear to our advantage.

In my opening, I tell the Commission that I would not offer even one breath of excuse or justification for Joe's fraud. I told them to throw me out if I did. I told them that I would, however explain why Joe cheated.

At the hearing, the city goes first. The Head State Fire Instructor testifies. This nice guy is 100% honest. On soft cross, he supports my claim that what Joe did was not so bad. He also confirms that the public safety was not threatened. When I was done with my questions, the chairman of the Commission asks the Head Instructor: "On a scale of not bad at all to really bad, where would you rank what Joe did? How bad was it?" As always, I am wearing my medicine pouch. It rests over my heart. I slowly reach for that little bulge under my shirt, gently wrap my hand around the medicine pouch, and speak to all of you. Some might have prayed. I feel like everybody can hear my heart pounding in the silence.

Finally, the Head Instructor answers, "Very low - not bad at all. I understand why Joe did it, and that's why I only suspended Joe for six months from his State position as an instructor. That's why I allowed him to continue teaching the class he's teaching right now. In six months, Joe was eligible to resume teaching for the State." That is the answer I need. The dam breaks, and I can see understanding and compassion on the faces of the Commissioners. They are asking themselves, "Does Joe deserve to be fired for this?"

The city's next witness is the Fire Chief - a wonderful man whom I respect highly and probably love. Again, 100% honesty. The Chief is unflappable in defending the decision to fire Joe. No cross-examination there. I press the issue of whether Joe's offense is job-related. The Fire Chief admits without hesitation that he would absolutely go fight any fire, anytime with Joe - would follow him into a burning building without question. The Chief takes his training courses from Joe. The Chief will still trust Joe to train him. The dam breaks a little further. The Commission sees how valuable Joe is to the Fire Department.

Finally, we get to the city manager - the guy who actually fired Joe. He is very sincere, but cocky. Some arrogance is showing. My only shot is to show he is biased. "You keep tabs on city employees whose real estate taxes are delinquent, isn't that true?" He admits that he is very concerned about employee taxes. City employees are supposed to set an example for the community. He has a clear recollection that Joe's property taxes were habitually delinquent. He enjoys saying then agree to Joe about his taxes. So I ask the manager, "Isn't it true that five years ago you ordered the Fire Chief to make Joe call you, then you threatened to fire Joe for not paying his real estate taxes? Isn't that true? And isn't it also true that Joe's taxes were delinquent because his wife had gotten sick and lost her job?" The city manager loses his previously clear memory. "I deal with a lot of employees. I just don't remember anything about that." I pressed, "You're telling us that you pay very close attention to the tax payments of city employees, but you have no recollection of threatening to fire Joe over his delinquent taxes?" Same lame answer -- "I don't remember anything because there are too many employees to remember those details." I looked at the Commissioners and the dam broke a little further.

Finally it's my turn. I put on two-thirds of Joe's fellow firefighters. Virtually emptied out the firehouse. All of them know exactly what Joe did. I ask them to tell me how they FEEL about things, rather than to tell me facts. Not a single objection. They agree Joe was wrong. No one makes any excuses for Joe. Even so, their trust for Joe is complete. Each one would follow Joe into a burning building any time, and without hesitation put their lives in his hands. Each one confirms that morale at the fire station stinks. Morale is suffering because the city went too far in firing Joe. Everyone wants Joe back.

I put Joe on last. He is scared, contrite, apologetic - honest and real. He does a great job just acknowledging that he was wrong. He says that what he did is not ‘him.’ He confirms that the city manager threatened to fire him over his real estate taxes when his wife was unemployed and his family income had been dramatically cut.

A couple times when I am questioning Joe, and for a few moments in the really, really brief closing argument I get to make, the emotion I feel for Joe is in my voice. In the small room and confined space we are in, I'm sure my passion and caring for Joe shows. I told the Commission that I kept my promise that I would not utter one word of excuse for what Joe did. And I told them to throw us out and rule against us if I broke that promise.

When I left, I figure we are beaten, because fraud is cheating and it is hard to get people to look beyond the line. Imagine my amazement when I read the decision today. The Civil Service Commission vacated and overruled Joe's discharge. They remanded back to the city manager, with orders that the worst he can do is to suspend Joe for six months without pay. The Commission found that the city manager abused his discretion in terminating Joe. Abuse of discretion is one of the toughest standards to beat in Pennsylvania - talk about feeling good! A lengthy suspension will still be a huge painful hit for Joe, but if he can hang on, the job will still be there for him.

I could not have won this case without my ability to tune in. To "own" all of the facts, especially the bad ones. To listen to what people were telling me and suggesting - and not assuming I had it all figured out. But first and foremost was caring about Joe and what happened to him. If I had used the ‘old way,’ with scripted questions, not listening to the answers, I could not have done what my fellow Warriors and TLC helped me to do for Joe. I still can't figure out how over 1000 of you fit in that little pouch . . .