THE CONCLUSION OF THE LEE BAILEY DEFESE OF DR COPPOLINO

When we last left you, Lee Bailey had objected to the introduction of Dr. Umberger's testimony on the new test he had developed to find the poisonous drug that may have been injected into his wife. 

Bailey asked for voire dire, told the Judge he needed just two questions, and Judge Hirsch said Bailey nailed it with the first question... 

And now, the conclusion of Lee Bailey's defense of Dr. Coppolino as told by Judge Hirsch:  

 Dr. Umberger: Have you published your findings?”

And with that, the Coppolino trial was – or should have been – over.  The answer, of course, was, “No.”  Even before the days of computer research, diligent lawyers were able to go to the periodical-literature section of the library and to determine if the Dr. Umbergers of this world had published anything.  And Dr. Umberger wasn’t about to perjure himself for the sake of convicting Carl Coppolino.

So the case was – or should have been – over.  If Dr. Umberger hadn’t published his findings, then they hadn’t been read and reviewed by the scientific community.  If they hadn’t been read and reviewed by the scientific community, then they couldn’t be generally accepted within the scientific community.  If they weren’t generally accepted within the scientific community, then they weren’t admissible under the then-prevailing Frye standard for novel scientific evidence.  If Umberger’s conclusions about finding the break-down components of succinylcholine chloride didn’t come into evidence, Dr. Halperin never got back on the witness stand to express an opinion about the cause of Mrs. Coppolino’s death.  There would be, in short, exactly zero evidence of death by criminal agency.  (The mysterious Rumpole, by the way, correctly guessed the question.  Whoever that Rumpole guy is – you suppose he’s Roy Black? – he knows trial lawyering.) [Ahem...thank you.]

But Lee Bailey wasn’t done.  He gilded the lily a little.

“Dr.  Umberger: Are you prepared to publish your findings?”  And the answer was: No.  I have no idea how Bailey knew he could get away with that question.  

But Judge Lynn Silvertooth also knew a couple of things, things the jury didn’t know.  He knew that Carl Coppolino had murdered his mistress’s husband in New Jersey, and he knew that Lee Bailey had gotten him an acquittal for that murder.  Now Lee Bailey was asking for, and by rights was entitled to, another acquittal for another murder that Coppolino committed.  

Trial judges are sometimes tempted to slip a thumb onto the scale of justice.  (Not me, but other trial judges are.) Denying Bailey’s motion for judgment of acquittal on a second murder of which Coppolino was certainly guilty was a temptation Judge Silvertooth couldn’t resist. So he denied the well-taken motion for judgment of acquittal, assuring Lee Bailey that he would have ample latitude to cross-examine Drs. Halperin and Umberger before the jury.  

Audentes fortuna iuvat, said Virgil: Fortune favors the bold.  In closing argument, Lee Bailey put that thesis to the test.  He told the jury that there were only two possible verdicts, the judge’s instructions on lesser-included offenses notwithstanding.  Either Carl Coppolino was guilty of first-degree murder and should be punished with death, or he was entirely innocent and should be sent home.  There could be no middle ground.  There could be no compromise.  

It was a stunning gamble.  And in truth Bailey was right.  If Coppolino was guilty, he was guilty of a cold, calculating, first-degree murder.  If he wasn’t guilty of that, he wasn’t guilty of anything.

The jury gave the matter due and deliberate consideration, and returned with a verdict of second-degree murder.  It’s impossible, of course, but that’s the verdict they came back with, and that verdict spared Carl Coppolino a date with Ol’ Sparky.  I’ve tried to figure out what the jurors meant by that verdict, and I can think of only one thing.  It was their way of saying: Your client is guilty as Hell, Mr. Bailey.  But you, sir, are a Hell of a lawyer. 

P.S.  As one of Rumpole's readers seems to know, Judge Lynn Silvertooth was, briefly, Mike Catalano's father-in-law.