THE DEFENSE NEVER RESTS

"The war outside still rages, but you say it ain't ours anymore to win"
Bruce Springsteen, No Retreat, No Surrender. 

Two of the very best lawyers this country has ever known faced off in an REGJB Miami courtroom thirty years ago. A few days ago we read Abe Laeser's recollections and reflections of what went right and wrong for the prosecution. Now the defense attorney, Mr. Roy Black, weighs in on his thoughts about the case, proving that the defense never rests, even after an acquittal:

Rumpole thank you for the invitation to submit a clarifying rebuttal to Abe’s faulty recall. As you know I love to write about trials and trial advocacy; it is a vocation and an avocation. Abe makes a good point about his truncated preparation time. He was the acknowledged master of case preparation. If he had been in the case from day one it would have been a tougher job.

However Abe has forgotten the phony confession testified to by detective and now assistant chief Buhrmaster. I won't address that further except to note it is hard to be taking a confession at the same time you are on the radio directing troops trying to quell the riot. For an in-depth discussion of that impossibility and how it was exposed I refer the interested reader to my book Black's Law (yes this is a shameless plug).

My point of view is somewhat different than Abe for obvious reasons. During the year or so leading up to the trial there was a drumbeat of agitation in the political and black communities. Alvarez was being offered up as the scapegoat for the racial problems that roiled the city for decades. Magically his conviction (like Obama’s election today) would solve Miami’s deep racial hatreds and make us all love each other. The elected politicians and police brass all condemned Alvarez and worked towards his inevitable conviction while many black leaders threatened riots if Alvarez should be acquitted. Today it is hard to imagine the palpable fear of violence in the streets and in the courthouse.

I try to gain some lesson from each trial. In the Alvarez case it was that trial lawyers should work their strong points not their weak ones. I was cross examining a police detective and I decided to make a point by asking him to demonstrate with me his opinion on how the police encounter occurred. He stood up and carefully and slowly took off his glasses and readied himself for combat. Right away I realized I was in trouble. I had no chance against a veteran of the streets who could easily take me apart. So I raised my hands in mock surrender and said whoa let’s not get to serious here. This allowed me to retreat with some dignity.

The lesson is stick to our strong points. In cross examination we are in control. Why give that up for some physical battle I could easily and would have lost? Let’s face it in the courtroom we are smarter than them and we have the weapons. On the street it is not a contest. Words are our weapons not physical combat. At least that day I didn’t have to learn from my mistakes!

Roy Black, Esq. Well, there you have it. The thoughts of two of the very best lawyers around. Interesting that one of Abe Laeser's take aways was a criticism of his own cross examination of the defendant. Roy Black's lesson learned was to stick to the strong points of your case. See You In Court applying the lessons learned.