“Not guilty” in two cases and on all counts

Trials can be challenging.  The stakes are high, and the pressure can be unrelenting.  I have been feeling the strain.

It was therefore particularly gratifying to win across-the-board acquittals in two back-to-back jury trials:  three counts of “not guilty” in the first case and six counts of “not guilty” in the second.

We argued self-defense in the first case and “mere presence” in the second.

***

The prosecution team in the first trial did lots of pointing:  three times in its opening and at least once in its closing.   

I don’t know if they are trained that way in the U.S. Attorney’s Office or if the pointing is something they have seen on T.V.

But they all do it. 

Given the configuration of this particular courtroom, it made for some awkward body contortions:  If you are standing in the well of the court in front of the jury, the defendant is directly behind you.  You never want to turn your back on the jury.  Thus, to point at the defendant, you need to twist your torso and stretch your arm back:  “J’accuse!” 

***

My client in the second case was a young African American woman.  So too was my co-counsel, a new lawyer sitting second chair for her first jury trial.    

This created problems for the government’s witnesses, all of whom were white.

The first police officer declined to make an in-court identification of the defendant. 

The second officer pointed to my co-counsel before correcting himself. 

***

I drew liberally from my bag of tricks in both cases.  These are the tried-and-true rhetorical devices I use to make certain points to the jury.

For example, in attempting to minimize the impact of the government’s DNA evidence, I used the analogy of government as magician using sleight of hand.

The government wants you to focus on THIS hand (left hand out in front of).  It doesn’t want you to focus on what it is doing with THAT hand (right hand down low and behind).

The physical part is fun to do.  It grabs their attention.  And you can come back to it again and again:  Look here, not here!

I also walked the government’s DNA expert through the scenario in which, because of the possibility of secondary, tertiary and even quaternary transfer of DNA, my DNA on a pen could travel on a plane to Indonesia and end up implicating me in a crime scene halfway around the world.

***

Borrowing from the literary device, I used my “reliable narrator” spiel in the first trial. 

Because the jury was forced to choose between two competing narratives in the first trial, credibility of the witnesses became critical to the outcome.  I needed them to believe my witnesses, not the government’s.

I described an episode on the popular TV show from the 1970’s, All in the Family.

The episode depicts a particular event three times, each time from the perspective of a different character.  The first version gives an exaggerated depiction as seen from the eyes of the liberal son-in-law.  The second version, equally exaggerated, tells a different story, this time from the viewpoint of the conservative father-in-law.

And then you hear from the mother-in-law.  This is a balanced story, and the viewer knows this is what really happened.  She is the reliable narrator. 

The specific TV show may have been an obscure reference for some of the jurors.  But there were some older people on the jury, and I thought that even the younger people might benefit from the analogy.

I pointed out that one of my witnesses had no particular allegiance to either one of the warring families.  He had no horse in the race.  One of the government witnesses even described this witness as like a brother to her. 

In other words, this witness was our reliable narrator, and the jury should believe his version of the story. 

The prosecutor tried to punish me for this in her rebuttal: “I have never even heard of the TV show Mr. Koehler talked about,” she dead-panned. 

This drew a chuckle from the jury.  The prosecutor was probably half my age and, to the extent it emphasized the fact that I was this clueless, out-of-touch dinosaur, I couldn’t help laughing myself:  Well-done.

But the analogy landed.  The prosecutor was forced to address it.  And, by addressing it, she put it in front of the jury yet again.  She increased its power.  In the end, the jury must have decided to adopt my reliable narrator’s version of the story. 

***

As is standard in many assault cases, I was able to provoke a display of anger by the complainant in the first trial. 

Maybe I am naïve, but I am still surprised when witnesses lie on the stand.  Do they not realize I have watched all the body worn camera footage?  Read the transcripts of their grand jury testimony?

The complainant was caught in multiple lies.  He said one thing on the witness stand.  He then had to change his story when confronted with the body worn camera footage.  

I could tell the witness was getting angry.  In fact, with the jury box so close to the witness stand in this particular courtroom, everyone could tell that he was seething with anger. 

When I approached the witness with an exhibit I needed him to authenticate, I stood off to the side, behind him, so that I would not block the jury’s view of him.  They watched him as he refused to look at me.  They could see when he initially refused to take the document from me. 

The complainant was a large man.  He was a convicted felon.  We were arguing self-defense:  Put yourself in the defendant’s position.  How would you feel to have this man coming at you with a cane?

***

I missed an opportunity.

I had planned to do my standard spiel in the second trial to explain to the jury the difference between actual and constructive possession.  I planned to use the same pen I had used in cross-examining the government’s DNA expert – the one that ended up implicating me at a crime scene in Indonesia. 

But the prosecutor beat me to this.  Instead of a pen, however, he used his coffee mug. 

I should have changed my analogy to incorporate the prosecutor’s coffee mug – to use the very same prop as he had.  That would have been much more convincing, right? 

In this case, however, I went with what I had already prepared.

Live and learn.  I will do it right next time.

***

I will never do two jury trials back-to-back again.  I had to work two cases at the same time, negotiating jury instructions in the first trial while preparing my opening statement for the second. 

But the first case, with my client released, had been scheduled for a long time.  My second client was detained.  And when I had the opportunity to shoehorn the second trial in between the first trial and Thanksgiving, I agreed.

That said, I learned things in the first trial that I then used days later in the second.  That is the beauty of being lawyer:  We can spend the rest of our lives practicing law and we will always be learning new things.  Every day I am a better lawyer than I was the day before. 

***

A family member asked me if, as a defense attorney, I ever have any ambivalence about prevailing at trial.

In the ideal world, the prosecution wins every trial. 

This is because, in the ideal world, the government only charges people they absolutely know are guilty. 

If the government wins, everything went as it should. 

If the defense wins, this means that the prosecution did not do its job.  It is the government’s fault, not the defense lawyer’s, when a guilty man goes free. 

***

Then came the verdicts:  There are no sweeter words to a defense lawyer’s ears than the words “not guilty.”  In these two cases, there was no splitting of the difference.  The words were uttered nine times and included all counts.

Court scenes are always more dramatic on TV than they are in real life.

TV dispenses with the qualifying of witnesses, the haggling over exhibits, and other boring things that are an integral part of actual trials. 

And I have never seen a witness blurt out a confession on the witness stand.

That said, the drama in a real case when the verdict is actually delivered is raw and palpable, at least for the people experiencing it. 

You watch the jurors’ faces for clues as they file back solemnly into the courtroom.  Sometimes they stare straight ahead.  Sometimes, as in these two cases, they look at you and smile.