GPSolo Magazine - March 2006

Trial Practice
Diary of a Trial Lawyer

It takes a certain kind of person to handle the defense of criminal cases. The pressure and the stress of having people’s lives at stake can overwhelm. I remember a particularly tough case from a couple years back. The defendants were respectable businessmen with wonderful families. After a long trial and a long jury deliberation, the verdicts were mixed. Some defendants were found not guilty, some guilty. A young lawyer had assisted me in the case. This was his first criminal case. And, as it turns out, his last. I discovered him hours later in his car outside the courthouse. Sobbing. He was experiencing a breakdown. It happens. The high of an acquittal is incredible and exhilarating. The low of a conviction is incapacitating.

A few years ago I represented a very nice man who ran a small machine shop making parts for government weaponry. Turns out some of the parts were not made right. Turns out some of the specifications were altered. Turns out the government inspectors missed it and everybody got embarrassed when the generals showed up to watch things get blown up and nothing worked. So heads rolled. Inspectors got fired. And my guy got indicted.

Sweet man, with a very nice wife and young kids and parents who lived with him and relied on him for support. He swore to me up and down he had not falsified documents. He insisted he was innocent and rejected early plea offers that would have meant going to jail. The trouble was, if convicted under the guidelines, he was looking at nearly a life sentence. Just before trial, the prosecutor came with a very generous plea deal. So I met with my guy. And for the first time he admitted to me something he had been ashamed to tell me—that during the time of the making of the parts in question he had been suffering a drug dependency problem related to a severe back injury. He had kept this a secret, from his family and from me. He still insisted he did nothing wrong, but he told me he didn’t really remember everything clearly. So he took the deal. He stood up and said he was guilty. He cried. His family cried. I didn’t like it, but the plea was the right thing to do.

In my current trial I had these types of conversations early on with my client. Any secrets? No. Any surprises? No. Any reason to make a deal? No. I ran the sentencing numbers with my guy. Gave him the worst-case scenario—and worst case was very bad. Asked him over and over if he really wanted to fight the case. It helped his decision that the prosecutor had said that he wanted to bury my guy and would make no plea offer. So we started trial knowing full well that the stakes were extreme. And that the odds were against us. And that it would be bloody. At least I started the trial with these notions. It became clear to me that my client took a while to appreciate even that he had been charged with federal crimes, that he had to appear in court, and that the judge wouldn’t ask him what was convenient for him or apologize to him for the obvious travesty of justice that was threatened. It was also clear to me that my guy had forgotten—or maybe blocked out—the months of discussions we had had leading up to trial and preparing the case for trial. I say this because, just before jury selection started, my guy leaned over and asked me to explain again why he was there. I grinned. I like a good sense of humor. Then I saw the look in his eyes. And I wanted to ask someone to explain why I was there.

Government cases are often built around “flipped insiders.” This case had two such star witnesses. One came early. I say, give me an angry bipolar woman with purple hair any time. Now don’t get me wrong. She was articulate and strong willed and exhibited a great vocabulary, and she was not shy about linking my client to every crime short of murdering Jimmy Hoffa. I had an hour at her at the end of the day. She had covered a lot of ground, so I figured I’d take a strong shot at her on a couple items and pick up the detailed attack the next day. I pushed this grand jury contradiction here, that document contradiction there, always looping back to some basic points that just didn’t add up. The witness did not like me. She began arguing and refusing to answer my questions. I simply repeated my question until she answered it. She tried for control early and asked to see a document I was questioning her about. I said I’d put it on the screen. She said she liked it better if she could feel the document. I told her that was nice but it was better for the jury to see what she was seeing. She fumed. I smiled. The jury nodded. Near the end of my hour the witness tried a different tack and started answering by asking “what was the point.” She got loud and I think I noticed foam coming out the side of her mouth. I replied the point was she needed to answer my questions. The jury smiled. The judge then said we were done for the day. Which was a good thing, because I had no idea where I wanted to go to next.

But I had plenty to go to, and the next morning I cross-examined her for another two hours. More contradictions. More implausibilities. At one point I got her to deny that the bottom half of a handwritten note that she said she started writing was in her handwriting, despite the fact the ink was the same. And the handwriting looked the same. And she had initialed the note. She claimed they were different initials. They weren’t. I circled them. She denied it. I zoomed in. She denied it. I looked at the jury. They looked back at me. We all turned and looked at the witness. She glared defiantly. I moved ahead and went to my finish. This witness had claimed that for months she was aware of bad things, hated the company, and was hoping to get fired. Then I pulled out an e-mail she had written to my client days before she got fired. Months after she said she was aware of bad stuff and ready to leave. The e-mail said she loved the company. The e-mail said she wanted to stay and be a part of my client’s dream. The e-mail contradicted her entire testimony and, at the end of this e-mail, she finished with the expression “yours happily, loyally and faithfully.” I get her to read it a couple times. Then I tell the judge I have no more use for this witness. Actually that was Vinny. I just smiled and sat down.

 

Michael S. Pasano is chair of the ABA Criminal Justice Section and a partner with Zuckerman Spaeder, LLP, in Miami, Florida. He can be reached at mpasano@zuckerman.com.

For More Information about the Criminal Justice Section

- This article is an abridged and edited version of one that originally appeared on page 1 of Criminal Justice, Fall 2005 (20:3).

- For more information or to obtain a copy of the periodical in which the full article appears, please call the ABA Service Center at 800/285-2221.

- Website: www.abanet.org/crimjust.

- Periodicals: Criminal Justice, quarterly magazine; Criminal Justice Newsletter, three times per year; White Collar Crime Newsletter, three times per year (electronic).

- Books and Other Recent Publications: ABA Standards for Criminal Justice; Annual Survey of Supreme Court Decisions; Asset Forfeiture: Practice and Procedure in State and Federal Courts; Child Witness in Criminal Cases; The Criminal Lawyer’s Guide to Immigration Law: Questions and Answers; Fourth Amendment Handbook, 2d ed.; Juvenile Justice Standards, Annotated; The Shadow of Justice (fiction); A Portable Guide to Federal Conspiracy Law: Tactics and Strategies for Criminal and Civil Cases; Practice Under the Federal Sentencing Guidelines; Restitution for Crime Victims: A National Strategy; Successive Criminal Prosecutions: The Dual Sovereignty Exception to Double Jeopardy in State and Federal Courts.

 

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