More First Cases – “What the hell are you afraid of?”

My next appearance on behalf of the prison gang leader was at his Superior Court arraignment.  No longer would there be any question that my role as defense counsel would be limited to an advisory role.  Still, I was worried about representing someone on a capital case when I had only been a lawyer for six months. I asked to speak privately to the Judge.  

Judge Kenneth Conn was the presiding judge of the Superior court at the time.  He was an experienced and intelligent jurist.  In chambers, I confessed my doubts about the level of my experience in handling a capital case.  He patiently heard me out and then told me a curious thing.  That I shouldn’t worry too much.  I would find it was easier to try serious felonies in Superior court than minor misdemeanors in the lower courts.  

Over the next decade I found the words of Judge Conn to be true.  The more serious the case, the more the formal rules of procedure and decorum were observed. Jurors took the cases seriously. They were less likely to get fidgety. Because the cases were more interesting, they paid attention.  The rulings of the judges were more considered and less arbitrary.  None of them liked to be reversed and they especially didn’t like it on serious cases.  And, significantly, the attorneys were more skilled, the legal work was better, the proceedings more formal and surprisingly less adversarial. Everything in the courtroom was more controlled.  

Although I agreed to stay on the case, my representation lasted a short time.  An offer came through to join the staff of the District Attorney’s office, a place I wanted to be all along. 

At a bank opening on Mooney Blvd., I had maneuvered myself into position to shake the hand of District Attorney Will Richmond.  He was “working the room.” A decade or so later, finding myself holding elective office, I would better understand the intricacies of moving through crowds, shaking hands, remembering names and mundane trivia about each person one meets at such events.  But not so much then.  My objective that day was to hit up the D.A. for a job interview.  

I needed the job.  As a family, we weren’t starving to death.  Not quite.  But our financial concerns were real.  “Difficult financial straits” an author might put it.  The attorney I worked for was a good enough guy, but miserly.  And his secretary could never seem to bill any of my cases unless all his billings were mailed out first.    

The D.A. was gracious.  He said to drop by his office and speak to him the following Monday. Hence, three days later, I found myself sitting across the desk from Mr. Will Richmond, the elected District Attorney. 

My last year in law school I had driven down from Fresno and clerked at the D.A.’s office, doing legal research and writing briefs, but it was under a different D.A.  I had been aware there was an election going on, but I left the law clerk’s position to study for the bar exam before the voting was held.  The incumbent was eliminated during the primary and then in the general election Mr. Richmond secured the victory. 

During the interview, he asked all the usual questions, and I was confident I had answered them well.  His final question was to ask how committed I was to the Fu Manchu mustache I was sporting.  Popular then.  Mine was a real beauty.  But I needed the job.  I replied if he could get me access to a razor, I would shave it off right then.  He laughed and told me I could start the following Monday.

It was entry level.  The pay wasn’t fantastic, but I was pleased. The job had health benefits that covered the family, and the pay was going to be more than I was making working for a penny-pinching attorney with a mean secretary.

Once orientation was complete, I was assigned to a team of attorneys.  

The team handled all matters originating in the Visalia Municipal Court.  At the time the team was the busiest in the office.  All felony prosecutions, (robberies, burglaries, murder and the like,) from the Visalia area were initiated by the team and taken up at least through preliminary hearing by team attorneys.  The misdemeanors, (petty theft, simple assault, Drunk Driving, various disturbing the peace offenses) were not only charged, but also taken to trial in the municipal court.    The basic difference between the two?  Convicted felons faced a good chance of being sentenced to State Prison while misdemeanants could receive no longer than a year in the county lock up.  The stakes for the accused were considerably different.  For obvious reasons, the more senior and experience attorneys were assigned the felony cases, while the rest of the staff cut their teeth on the misdemeanors. 

Although I had defended a few cases during my short sojourn in private practice, and while in my last year of law school had clerked at the District Attorney’s office, doing various research projects, I had never prosecuted a case.  

As a new guy on the team, I inherited a stack of misdemeanor files from a departing attorney and a daily calendar of appearances.  Used to handling one or two cases per court appearance in private practice, I now was expected to lug arm loads of case files to court for motion work and pretrials (where plea bargains were offered and accepted or rejected). Additionally, trials were conducted every Thursday and Friday.  I was understandably concerned over whether I would have the time to prepare each of the 50 to 100 cases on calendar each day.  I hadn’t even thought of the trial work.

My team supervisor, Marty M., was the very definition of an old salt.  The deputy who preceded me had left a batch of undone trials pending in the docket.  Ole’ Marty, evidently believing it would be best if I jumped right in the river of cases, sink or swim so to speak, asked me on my very first day in the office, if I wanted to do a trial the next day.  Young and ever cautious, I replied that while I was willing, I felt it might be better to get acclimated to the new job, maybe sit in and watched a prosecution first.  He looked at me with a wry smile on his face.  He told me to meet him at the office the next morning and I could go with him and sit in on the trial down at the Muni Court.  Sounded reasonable enough.  Admittedly, I was a little scared to go to trial as a prosecutor right out of the chute.  At any rate, with no pressure, I was in a relaxed mood when I arrived at Marty’s office the next day.

I stood around and watched as Marty had his coffee and traded jokes and information with other deputies getting ready to go to court.  I saw a blue file sitting on top of a stack of manilla folders. I knew blue meant a trial folder.  Never once did he pick it up much less open it. I kept looking at my watch.  Finally, about ten minutes before the time set for court he picked the file up, double-checked the name on it, tucked it under his arm and nodded for me to follow him.  We drove down to the court and walked through the glass doors into the lobby.  

Attorneys, cops, witnesses, and defendants were everywhere.  Smoking was allowed in the hallways (and even some courtrooms) in those days, and everybody smoked and I mean everybody.  The hallway was thick with smoke.  Bailiffs were frequently opening the doors to the two courtrooms and calling out names of cases, and attorneys and witnesses and defendants moved through the doors as others were exiting.  Marty, a chain smoker himself, lit up a cigarette and immediately started joshing and talking to cops and attorneys hanging around in the lobby waiting for their cases to be called.  

He had never once opened the blue file.  

After another twenty minutes or so, (and two or three cigarettes) the crowd began dissipating, and Marty motioned for me to follow him into the courtroom.  We moved up to the prosecution table on the left closest to the jury box.  The prosecution table is always in the favored position next to the jury box because they have the burden of proof.   The judge acknowledged Marty with a nod of the head, (he, I knew, had worked in the D.A. office until he was appointed to the bench a couple of years before).  He was just winding up his morning calendar.  Finally completed, he told his bailiff to call in the jury panel and get everyone seated.  He disappeared into his chambers behind the bench while it was being done. 

One of the bailiffs went to the door, held it open and called out for the potential jurors for the case to come on into the courtroom and be seated.  The other bailiff came over to our table and began swapping stories with Marty while the jurors shuffled in.  I had kept an eye on the file.   Marty still had not once opened it or reviewed its contents.  He had done nothing to determine if his witnesses were present in the courthouse. Had done nothing to insure his evidence was in order. I was starting to wonder if I was missing something.

The Judge came out of chambers and the bailiff hastened to call the court to order.  As he was sitting down the judge told to clerk to call twleve names up to the box.  The potential jurors took their seats, and the Voir Dire process began in which the attorneys for both sides are given leave to ask questions of the potential jurors ostensibly to uncover any bias or connection to the participants.   In fact, it is often used by attorneys to condition them to favor their side of the case.  Voir Dire is an art form and experienced trial attorneys will tell you some cases are won or lost during jury selection, before the first witness is called.  Skill or luck picking a jury as important as any other skill for a trial attorney. 

The defense went first, and it became apparent this attorney was privately retained.  He was on the clock and would bill by the hour, the more the better.  He went through elaborate precursors to his questions, pressed the panel on the ultimate question of whether they could truly question the veracity of police officers and treat the defendant fairly.  After an hour or so of this, the judge turned to Marty to afford him the opportunity to Voir Dire.  He simply looked up and announced he accepted the jury.

I was a bit shocked.  He still hadn’t opened the file and here he was accepting the first twelve called to the box.  He had made no attempt to bring the panel back in balance after the shameless attempts to precondition the jurors by the defense.

The question was then put to the defense if he wished to challenge.  Each side in that kind of case was allowed ten preemptory challenges, in which you can kick off a potential juror without giving a reason.  The defense started the procedure by dismissing one of those seated in the box.  He then went through the same elaborate speechifying and preconditioning the next potential juror who had been called up and taken the seat vacated by the just departed juror.  All without any objection from old Marty, who sat serenely watching the proceedings.  And he still hadn’t opened the file.  Finally, the Judge turned to Marty.  Marty again said, “The People accept the jury.” 

I was mystified.

This happened another eight times.  Elaborate questioning and posturing by the defense attorney only to have Marty say he accepted the jury.  Finally, the defense ran out of preemptories.  The remaining twelve were seated and the judge had the jury sworn in.

Now it was time for opening statements.  

The judge turned to Marty and invited him to give his opening statement. An opening statement is very important for prosecutor or plaintiff’s attorney who has the burden of proof.  It is the chance to outline for the jury what he intended to prove, to give a road map of the evidence.  Instead, Marty mumbled that he would waive giving an opening statement.

The defense attorney hurried to the well of the court and gave a flamboyant and intense opening statement about how his client had been wrongfully accused, how the police had fabricated the evidence and how he would ultimately be proven innocent and be exonerated.

Once done, the Judge told Marty to call his first witness.  

And there and then for the first time, he pulled the blue file over in front of him and opened it up.  

He ran his finger over the pink sheet that I knew listed witnesses and called out the name of an officer from the Visalia Police Department.  The bailiff went to the door and called out. When he returned, an officer in uniform was following him. The officer took the oath and sat down in the witness chair.  I noticed Marty thumbing through the police report and from the looks of it he was reading it for the first time.  In a halting way, he referenced the date on the top of the report and basically asked the officer what happened on that date.  Despite the defense objecting to the narrative form of the answer, the officer’s testimony was awkwardly admitted.  And he was turned over for cross examination.  Again, the defense attorney stalked back and forth in the well of the court maligning the officer and inferring he was lying and had framed his client.

No objection was coming forth from Marty.  He didn’t seem to be paying that much attention. And so it went ,witness by witness.  Finally, we got to the defense case and it was detailed and dramatic.  Marty when given permission to cross examine the defense witnesses declined.  He even failed to question the defendant who took the stand in his own defense.

I was sitting there dumbfounded.  

Finally, the judge called for closing arguments.  And, what else, Marty waived his closing argument!  The defense wasn’t going to forfeit any such opportunity, and in a loud an impassioned closing argument that even at that level of experience I knew was objectionable, went on and on contending the innocence of his wrongfully accused client.

The jury was instructed on the law and sent to the jury room to deliberate.  I sat there as Marty traded stories with the bailiffs and marveled at his unopened file and the conclusion, I had resisted but now knew, that prior to the first witness taking the stand, he had never read the file or the police reports. 

After a couple of hours the jury came back.  It was a hung jury.  10 to 2 for guilty.  

After the case was reset and everyone filed out, it was just the two of us sitting at the counsel table.  Marty fumbled in his coat pocket for his package of cigarettes, looked over at me and said, “Now, listen Slick.  In prosecuting a case around here, if that guy is guilty and he was, you don’t have to do a G—D— thing and 10 of the jurors will still vote him guilty so what the hell are you worried about? What the hell are you afraid of?  And here’s something else to put in your pipe and smoke; if he’s innocent, they’ll figure that out too.  Now get to work.”

Lesson learned.

It wasn’t too many years thereafter I was conducting trials lasting months, with hundreds of witnesses, thousands of pages of transcripts and dealing with life and death issues.  Literally.  And when the stress became almost unbearable, I thought back to that lesson.  Jurors are not blank slates.  And there is no impermeable barrier between them, the attorneys, the witnesses, the evidence.  It is all experienced through the prism of the their own lives, histories and knowledge.  They bring beliefs to the trial and no amount of questioning and solicited assurances can dissipate it all.  Good trial attorneys know that the actual number you have to convince or persuade to change their minds is less than the twelve who are sworn in and seated in the jury box.  And most importantly, one must have faith that most jurors can see through the hustle, the bustle, the show on the stage that is a courtroom and reach the right conclusion.  

Courthouse Tales is published Sundays.

For more writings by Phil Cline, visit philcline.com

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