Belief in your client? Why?
Back in November 2011, Maren Chaloupka forwarded an email from
Joey Low who was describing a overwhelming victory by Johnny Zelbst in a civil
case. Joey wrote a paragraph that I found very thought provoking -
especially as it is applied to criminal law. He wrote:
“That until I get past my hope or my wish about my case, and
well into fighting and defending my BELIEF in my client’s cause, (defending it
to the death), then the jury will not begin to defend it either. This is
what is possible when we are so committed to our cause that the non verbal
communication, that can only come from our commitment to our beliefs, is what
does the majority of the persuading. Not the mouth moving, not the words
formed, but the emotional connection to the client, to the cause, to the jury
and to ourselves that oozes out of our pores and onto the floor.”
I struggled with this during a trial last week. That’s a tough
position to be in during a criminal trial and when your client must testify to
have a chance for success. You have to find something to believe in and it must
fit with what you are trying to communicate to the jury: I think.
CLIENT is a 50 year old woman in the Army who married HUSBAND in
1985. She lived with HUSBAND as husband and wife until about 1989. After
that, they met several times, there was some financial support and career
guidance, and there were a few visits to CLIENT’s family together, but that's
about it. CLIENT claims she has been estranged (my word not hers) since around
1990. An investigation began in 2010 when her marital status came into question
due to a relationship she was in with another soldier. During the investigation, divorce paperwork
was discovered in California that showed CLIENT waived her appearance by
signature and HUSBAND effected a divorce as of 1991. CLIENT was charged with
larceny of housing funds to the tune of about $25,000 given to her over the
last 5 years. This was as far back as
the prosecutor could go given the statute of limitations. Of course the amount
is much greater if you don't believe CLIENT: around $80,000.
"Ex" husband made a statement to investigators saying
CLIENT knew they were divorced because HUSBAND told CLIENT; CLIENT signed the
court paperwork; and, HUSBAND got remarried and divorced since then and CLIENT
AND HUSBAND discussed it. HUSBAND then did not comply with subpoena he was
issued for trial and the US Marshal Service couldn't find him - so their
communications didn't come into evidence.
The case was prosecuted, for the most part, on paper. The
prosecutors introduced pay records showing the housing payments were made; the
divorce decree to prove the divorce; business records with CLIENT’s signature
so the jury could compare; and, they introduced other circumstantial evidence,
e.g. tax records showing single filing status and head of household status to
prove knowledge.
I had a difficult time wrapping my arms around the fact that
CLIENT did not know she was divorced - not because it doesn't fit within the
mold of what society recognizes as a marriage. I mean a marriage and a family
could only be as follows: Husband, Wife, 2 1/2 kids and 1 dog & 1 cat
right? The difficulty I had was that CLIENT was very very smart and
savvy. I just had a hard time believing she would suffer some fool for 20
years, except love makes you do crazy things.
CLIENT testified that her parents were married for over 50 years
and that she believes that once you get married, you stay married. While
she dated over the last 20 years - CLIENT never took anyone back to meet her
parents, because she felt that they would be mad that she was
"cheating" on her husband.
CLIENT never “re”married, tried to “re”marry, or ever talked to a
"boyfriend" about getting “re”married. CLIENT had no financial requirements
that would lead her to "need" the extra few hundreds a month she
received. However, how do you not live with your wife or husband for twenty
years; not see them sometimes for years at a stretch; only have sporadic phone
calls; and, NOT know something is up.
In a way, I let all of that get in my way of believing my
client...no matter how much I care for her and love her...which I do...but I
let it get in my way however slightly. I think it's like being slightly
pregnant.
Pretrial negotiations were limited. Prosecutors wanted at least
1 year of jail and Dishonorable Discharge equivalent, which would result in
loss of retirement pay amounting to several hundred thousand dollars, plus she
would have to admit to larceny.
Voir Dire - we were not allowed to get the members in a
discussion with one another, but did get to do some Q&A in group. We elicited agreement and disagreements and
had them explain why. We got an objection toward the end - that my type of
Questions were better saved for individual voir dire. My response to judge was
that I felt the juror would like to have his answer heard by the court. The
juror’s head nodded and judge allowed him to answer. Didn't get to talk to the
jury to see if that was appreciated or not. I think it was.
Opening for me felt lame. We didn't know if the US Marshals were
going to arrest the "ex" - because the prosectors were telling the
judge they were "hot on his trail." Since we weren't sure what
would happen, I didn't want to over commit - I think not "committing"
was a mistake. I think I could have
don't a much more compelling 1st person opening from my clients perspective and
done it emotionally. We weren't 100% committed to client testifying, but in my
gut - I knew she was going to testify and, in fact, had to testify in order to
have any chance for success. Essentially, I second guessed my gut.
A mistake.
Because the governments case was paper - we didn't have much
cross examination for the government witnesses. Essentially we elicited
that there was a lot of speculation, they sought to include vs. exclude CLIENT
of misconduct, and there was animosity between her co-workers and client.
Quite a bit of the government's case was the submission of records under self
authenticating seal/attestation.
Our evidence focused on good character, character for
truthfulness, testimony of witnesses who testified CLIENT has always held
herself out to be a married woman. CLIENT testified for about 2 1/2 hours.
The jury convicted.
NOW BACK TO THE belief in your case. In my soul I did not believe she deserved to
go to jail She was a good person, a force in her community, and had
served in the Army for a long, long time.
The sentencing argument became passionate in a different way
than the lame openings and the meticulous closing where we cut the governments
case slice by slice.
At the college - I believe Joshua Karton posts a quote in his
magnificent production and stage setting - that says "if you are arguing
reasonable doubt, you're losing" or something like that. I’ve heard
Gerry say the same thing. I felt like my
closing was how jacked up the governments case was, where they failed to prove
anything in the face of the case we presented. The betrayal that her
"ex" committed upon her and that prosecuting her was a mistake - she
should have just been required to pay back the money, not prosecuted.
At sentencing - it was much more why the appropriate sentence of
repayment of the money through a fine was the right thing to do --- not why the
government was fucked up --- but why we are right. It was a much stronger
position from which to argue.
The self analysis continues ... but at the end of the day,
while they did convict CLIENT --- she was able to go home with her family and
friends, i.e. no jail time; she was able to stay in the Army, which means she
will be able to retire with honor and a sizable retirement check --- and most
importantly...she hugged us on the way out.
Peace.
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