U.S. Capitol building

Things Slow Down

Jamison KoehlerDrug Offenses, Trial Advocacy

I always have the best intentions after attending a good CLE.  Returning to my office with a binder full of great information, I have every intention of reading through all the materials that were just referenced during the training.  The binder lies on my desk for a couple of days.  After a week of so, I move it onto a side table to make room for new stuff.  It ends up on my shelf never to be touched again, like the steadfast tin soldier in the Hans Christian Andersen tale:  “but he remained firm, and never changed countenance, and looked straight before him, and shouldered his musket.”

I attended yet another first-rate CLE put on by the Public Defender Service (PDS) this past weekend.  (Yes, yes, you would hate me if you saw me there.  I don’t sit in the very first row because that would be too obvious.  I sit in the second row, over to the side just a bit.)

Ed Shacklee, Tom Lester, and Jeff Stein did a breakout session on cross-examining the chemist in a drug case.  What I like about these guys – in fact, what I like about PDS in general – is that they are knowledgeable and committed without also being preachy and smug.  They do not speak down to the rest of us.  Instead, the approach they take is one of cooperation and support:  We are all learning.  We all make mistakes.  Let’s figure this thing out together so that we can all do a better job of representing the accused in D.C.

Shacklee was talking about how intimidating it can be for a non-scientist to cross-examine a government chemist.  Sometimes we also have to deal with a cranky judge who is annoyed with us for dragging the whole thing out:  The test shows that it was a controlled substance.  Why are you wasting all of our time?

But it can and should be done.  You focus on a few areas in which the government is vulnerable. And then you do it again and again, each time learning from your mistakes the previous time.

Irving Younger has said that you need at least 100 trials under your belt before you can really call yourself a trial attorney.  And repetition does help. There used to be one courtroom in Philadelphia that on certain days would only do preliminary hearings for drug cases.  You get pretty comfortable cross-examining one of the government’s experts after you have done it 10-15 times in a row 5 days a week.  You learn little tricks.  You begin to see patterns.  And suddenly it is not so difficult to differentiate between 30 red ziplock packets and 14 ziplocks with “Superman” stamped on them, and so on.  Things slow down.

Private attorney Scott DiClaudio used to wait until the government spent all sorts of time qualifying a police officer as an “expert.”  His first question would then be:  How many grams are there in eight-ball?  Sometimes it was even more basic:  How many grams are there in an ounce?  I never once saw him use this tactic unsuccessfully.  Suddenly the “expert” didn’t seem quite so formidable.  Suddenly he didn’t look quite so smug.