A “dead-dog-loser” is the name trial lawyers gave to cases no one expected you to win in court. I had a few of them and always tried my best to get a defendant to plead guilty before making a fool of myself and him by calling his case “ready” for trial.
There was one case, however, that I couldn’t escape from, and I ended up trying it to a jury despite my best efforts not to.
Many lawyers would duck these type of cases, in hopes of tiring out a civilian witness who usually had to take time off from work to come to the courthouse. Two or three continuances could wear out even the most civic-minded person. But then there was always those who would appear in court each and every time an assistant district attorney subpoenaed them. You couldn’t escape those diehards no matter what you did.
Public defenders could avoid these cases through continuances knowing that another lawyer would end up with the loser once they rotated from that courtroom or judge they had been assigned to. A continuance would stretch over a six week period which was time enough for another attorney to face the defendant refusing to plea-bargain.
I never ducked any cases. I might have seen it as guy thing. I had been to Vietnam during the war and I figured I could handle just about anything a judge could throw at me during a trial by a jury. At least no one would be shooting at me no matter how bad my closing argument would be!
Several attorneys who represented this one fellow kept ducking the case that I was eventually assigned to. After reading the police report, I could understand. The case was a “caught inside burglary.” There were no defense for such criminal acts and I kind of figured the case would be a “slow guilty plea” when I put it up for trial, if you know what I mean.
The owner of the building testified that he caught my client in his car-repair shop early in the morning. He held the miscreant with a baseball bat threatening to do him harm should he try to run away before the police got to them.
My client told a different story, however. His version of the truth was that he never went inside the building but was stopped when he walked along side of it. It was dark out, and he said he was going to apply for a job at a site immediately adjacent to the victim’s building in the early morning.
He told the story with quite a conviction and I figured I could let him tell his story before the jury found him guilty and allowed the judge to sentence him.
And that is why I told his story in my opening statement. It was something I had not done in my practice of the law up until that point. And that is to tell the story as if I was the defendant talking to his lawyer.
The trial looked bad for my client but then it kind of “broke my way.” That is, facts my client said in private were slowly revealed in public during the course of the trial’s give and take, particularly when I’d cross-exam the prosecution witnesses.
A police officer had stated that the neighboring building had a hiring process open to the public early that morning The only way to approach the building was to walk past the defendant’s place, he said.
The cop also helped when he said he knew the victim because of previous encounters with him and his place of business. The man had been burglarized before and that this was the first time anyone had been caught.
This testimony was in direct conflict with what the complainant had testified to earlier. I made a note of the contradiction and brought it up during my closing argument. I highlighted this fact as well as the exact words the victim had used after he said he had discovered my client in his shop.
He said “Go ahead and make my day,” as he held the bat to my client’s head.
My client said that the man had actually held him at gunpoint after ushering him into the building upon confronting him outside. In other words, he forced my client into the building and then called the police, stating that he caught my guy inside.
Clint Eastwood made that line famous, you may recall. In a Dirty Harry movie. Eastwood pointed the gun at the perp and said “”Make my day.” No one would use that term while holding a bat, I had argued. He held a gun to the defendant’s head but refused to say that.
My client had sabotaged the case when the prosecution had rested her case, however. I had expected the defendant to testify in his own defense and had prepped him for it. Now he told me he wasn’t going to take the witness stand and the slim chance I thought I had developed finally dissolved. I told the jury what my client had said during the opening statement and I believed they expected to hear from him, even though I never said he would in those many words.
Luckily, I had the law with me. You see, a defendant has the right at a criminal trial not to testify. He can assert his Fifth Amendment privilege not to incriminate himself.
As importantly, the law forbids a prosecutor from making any comment of his lack of testifying. It would create an automatic mistrial. The case would be thrown out if one could prove there was prosecutorial misconduct in referring to the criminal defendant not testifying.
“Not guilty” jury foreman announced several hours after the deliberation. I had been standing with my client when the judge ordered him to stand and the assistant DA threw her file to the desk in disgust with the verdict announcement. The judge admonished the lawyer — a nice-looking slender woman in her early 30s –and she simply pushed her chair in, without raising her eyes to the judge or to the jury that refused to believe the so-called victim.
A dead-dog-loser had turned into a winner.
My client had told the truth and it set him free despite the lack of faith by his lawyer. I never forgot that lesson and I pray to God I never will.
The truth can indeed set us all free.