Hearing the jury foreperson announce "not guilty" at the conclusion of Larry Johnson’s murder trial yesterday was one of the most humbling and rewarding moments of my 25-year career as a lawyer. Some may wonder what I was doing trying a murder case when for many years the focus of my practice has been serious personal injury. I agreed to co-counsel this criminal case for three reasons. First, my friend Norm Pattis (normpattis.com) invited me to do so. Second, there is no better way to sharpen my trial skills than being in trial. Third, and most importantly, after learning Larry Johnson’s story, I was convinced he was not guilty. The invite. I have known Norm for over 15 years. Although we both live and practice law in New Haven County, our paths first crossed in 1998 over two thousand miles away in Wyoming at the Trial Lawyer's College (triallawyerscollege.com). Upon our return from the college, we teamed up and tried many cases together, both civil and criminal. A number of years ago, Norm decided to focus primarily on criminal cases, initially handling misdemeanor and felony charges and, over the years, focusing primarily on felony cases - the most serious in the criminal area. During those same years, I began to focus on civil cases with my practice growing from smaller car wrecks to significant crashes involving very serious injuries, tractor trailer wrecks and the wrongful death of loved ones. Despite our practices going in different directions, providing us little opportunity to try cases together, Norm and I have remained close friends and frequently discuss our cases, strategies and courtroom tactics. One day last spring, while Norm and I were reminiscing about our trial days of years past, Norm invited me to join him as co-counsel in a murder trial. He said the trial would take place in the New Haven courthouse - a mere hundred steps from my office. As we considered teaming up again we discussed that defending Larry Johnson together could provide a chance for both of us to improve our trial skills through the help of each other. This would be a well thought out, honestly critiqued trial with a keen eye toward providing feedback to one another - assessing what each of us did well, what we did poorly and the perceived consequences of our strategy and courtroom performances. Regardless of whether you agree with Norm’s philosophy, anyone who knows him will agree he is a genius and a talented lawyer. As a result of trying over 100 jury trials to verdict, Norm comprehends the Rules of Evidence like few others and his gift of oral advocacy is matched by none. The downside for me would be my monetary compensation. If I agreed to work on the case, I would do so pro bono. Weighing heavily on me was my belief that Larry was, in fact, not guilty. The fact I wouldn’t be paid did not turn me away, however. I’ve learned sometimes the best compensation comes from the experience, not from monetary payment. Another good friend of mine, Jude Basile (basilelaw.com) defines a jury trial as, "a real human being (lawyer) telling a real story about another real human being (client) to a group of real human beings (jury)." To be sure, the only place you will find all that realness is in an actual trial. The Rules of Evidence and the art of persuasion can be practiced and perfected in every trial, criminal or civil, and the trial skills we know best aren't the ones we have been taught but rather those skills we have learned through actual experience. Thus, I decided the chance to sharpen my trial advocacy skills for use in my future personal injury and wrongful death trials was more than adequate compensation. The teeth on the saw that were sharpened. As with any trial, certain rules and tactics are of greater concern than others. In this murder case, I was able to study and apply the rule of the prior inconsistent statement. Simply put, a witness in trial can be impeached by a prior inconsistent statement. Although the rule may sound rudimentary and understood by most, during Larry’s trial in particular I gained a much deeper appreciation for the rule’s usefulness and application. Although I thought I fully understood and could apply the rule correctly prior to this trial, Larry’s trial required its application under difficult scenarios. On October 12, 2011, Larry, who is black, witnessed a white guy in a McDonald’s parking lot beating up his girlfriend. Larry intervened and got into a fight with the guy. During the fight, Larry was stabbed. Later that same night, a different white guy living in the same blighted neighborhood of New Haven was shot and killed in front of several witnesses. When the police began investigating the murder, they learned of the fight between Larry and a white guy earlier the same night, and the police began to build a case against Larry. They interviewed dozens of acquaintances and friends of Larry, a common issue was drug use. When first asked about Larry’s connection to the murder, these folks told police neither they nor Larry knew the victim, and that Larry had nothing to do with the murder. After being arrested on drugs and firearm charges, subjecting themselves and their parents and other family members to numerous felony charges, and after being coerced by police to give them something on Larry, his friends began telling stories implicating Larry in the murder, telling the cops Larry confessed to them he killed the wrong guy. None of the actual witnesses to the murder identified Larry as the shooter, and in fact, immediately after a shot was fired, someone at the scene yelled, “Shane, why you did that?” In addition, the victim’s girlfriend told police that after the murder a guy (not Larry) approached her in a bar and told her he killed her boyfriend because the two owed him money for drugs. Also, despite a nearby liquor store's video surveillance camera captured the murder on tape and was played during trial, the tape's resolution did not allow for a clear identification of the murderer. Nonetheless, the State still charged Larry with murder, carrying a pistol without a permit and possession of a firearm by a convicted felon. It is with this backdrop that Norm and I set out to tell the jury, through cross examination and the use of prior inconsistent statements, that the witnesses called by the State had changed their stories about Larry in order to help themselves on their own drug and weapons charges under coercive interrogation techniques used by the lead police investigator. Larry’s trial offered another opportunity to sharpen my skills of developing and conveying themes, sowing the seeds during jury selection and cultivating them throughout the trial. During jury selection, we began to sow the seeds of our theme - that alleged witnesses lied about Larry in order to save their own hides, who the burden of proof was meant to protect and the presumption of innocence. I am a firm believer it is counterproductive to sell a story or attempt to persuade a potential juror during jury selection. The best way to alienate a potential juror is to manipulate or cross-examine him. During jury selection in Larry’s trial I was able to practice the art of acceptance rather than exclusion. We chose a true cross section of folks, black, white, younger, older, male and female. By the end of jury selection, and more importantly by the end of the trial, we felt we had formed a tribe that was ready, willing and able to march into the deliberation room and render justice. Our confidence caused us to seriously consider waiving our closing argument. After weeks of jury selection and trial, hearing from many witnesses who had changed their stories, and after roughly two hours of deliberations, the jury indeed returned a verdict for justice: Not Guilty on all charges. Thank you Norm. And thank you Jim. (jimnugent
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