- Picasso’s Don Quixote awakens my spirit every day
Each day for twenty years, the spirit of Don Quixote welcomed me into my law office. This picture hung above my desk reminding me that it was the “impossible cases” a good public defender relished. The ones you didn’t expect to win, but somehow, now and then, you’d convince a jury to see the facts your way, which in most cases, was the right way.
I’d try cases other attorneys would “duck” month after month, seeking continuances. Particularly when a defendant was “on the street” working or supporting himself whatever way our indigent clients could find. I always felt that the “buck stops here,” when such a file appeared on my desk: the tough cases signalled the greatest challenges. I had nothing to lose as an advocate — but a great deal to gain. To “practice” a new and “untried” theory of defense. Or try an unorthodox way to shake up a system normally stacked against you, and make it more favorable for a client. And in losing, I’d sharpen my skill and hone my trade for a more “triable” case next time.
I won more than I lost of the 100 jury trials I tried. A few real “losers,” would take on a life of their own, as facts unbeknownst to the prosecutor and myself would leak from from the witness stand, surfacing as an acquittal when the verdict was read.
I remember one in particular. A “caught-inside” burglary. Police arrested a defendant inside a mechanic’s garage where the owner held my client at bay. The owner swore he “caught him in the act” and held a bat on the defendant; facts showed he might have held him at gunpoint. Police said nothing was reported stolen; the complainant read a two-page list of losses to the jury. Police described the business site in the West Philadelphia neighborhood as a “trouble” spot; the owner testified to the complete opposite. The jury acquitted after finding the “victim” unworthy of belief who had over-reacted to innocent, and not criminal behavior. In essence, they found the defendant may well have been at this scene seeking a job at an adjoining junkyard accepting employment applications that early morning.
I loathed this type of case as a new lawyer, however. You’re supposed to cross-examine witnesses at a preliminary hearing to “lock” them into their story, so they wouldn’t be able to change it at a later trial without facing something called “impeachment.” The impeachment process involved an attorney confronting a witness at a later trial with a prior recorded statement (or a statement by a so-called “co-oberating witness“) totally different from the story they were now “selling” to a jury. The prior statement was recorded and transcribed by a Court Reporter. A good attorney would have almost memorized key details from the “notes” of the hearing, and “sense” when someone said something even slightly different about a critical fact in a case. (A damn good attorney could inflate the difference in competing statements, thereby “creating” an almost theatrical atmosphere to convince a jury the witness lied, or had no idea what they were talking about.) The “caught-inside burglary” was impossible to defend. Unless some impeachment broke your way. And then the fun began:
If they’re mistaken about fact “A,” how can you, the jury, be convinced “beyond a reasonable doubt” they’re not mistaken about fact “B?” The prosecutor is asking you to decide when his witness is telling the truth. He (she) wants you to guess which version is correct.
Well, this is not some game of chance. We’re not playing slots in Atlantic City or Vegas. We’re dealing with my client’s liberty. You can’t play games with that. I won’t let you, and neither will your own conscience. Remember! You took an oath to uphold the law, not bend it like the prosecutor would have you do. And, so . . . I beg of you. Demand more . . . Then do the right thing. . . Find him Not Guilty!
A cop who arrested my client for selling contraband got into an argument with a Court Reporter when I confronted him with what he had said earlier at a preliminary hearing. He testified the defendant had hidden a stash of drugs on the back fender of a car. At trial, he said it was the front fender. It was a mistake anyone of us could make, particularly if we’re handling a hundred arrests between the time of the hearing and the moment of trial, which in Philadelphia would run an average of at least four or five months.
I walked him through his testimony, reminding the jury that he was under oath, swearing to tell the truth, and that a person was typing every single word, just as they were at the present trial. The cross-examination culminated with the following: “Four months ago, you said it was the ‘back’ fender. Yet today, you tell this jury it was the ‘front.’ Isn’t that correct?”
I sat and asked nothing more. The police officer criticized the absent reporter. Bad-mouthed the person, as I “egged” him on, reading the name of the reporter of whom I knew, pointing out her 10-years of experience by way of peppered questions to the witness. Got the Court Reporter of “real time” into the act, by singling out her to the witness. “You can’t trust what any of them write,” the police officer said. I let the long — almost deadly silence — sink in, before announcing “no more questions.“
Up until that point, I thought my client was guilty. He might have been. But I “got him off” of a mandatory 3-year-sentence for what was his first offense, and he owed it all to man who refused to admit he made a mistake, thereby creating doubt in the minds of the jury.
“Are you as sure about that fact as you are of every fact you presented to this jury?”
He sealed his own fate as soon as he said yes. And the impossible dream came true.