THE DEFENSE NEVER RESTS

Some thoughts about the Cruz contretemps in Broweird and the outburst by the judge assigned to her first first degree murder case. 

Perhaps a more experienced judge should have been selected. 

The defense is under no obligation to call any witness and can rest whenever they wish. Whilst former State Attorney Michael Satz reportedly "threw up his hands" in mock disgust when asked if he was ready to proceed with rebuttal after the defense surprised everyone by resting, we have yet to have a trial judge require the prosecution in any case tell us who they are calling, who they are not calling, or even who their next witness is.  The prosecution doesn't want us to know who their next witness is, and the defense doesn't want to let anyone know when they are going to rest. 

It is called trial tactics and those of us who try cases deal with it, and those who sit on benches and haven't ever tried a big case cannot deal with it. 

For those of you who aren't Starbucks swilling 30 something judges, the title of this post is a reference to a magnificent book by one of America's greatest criminal trial lawyers- Lee Bailey. But since he's not on Tik Tok or IG, we don't expect you 30 and 40 somethings to know anything about him. 

Some trial tactic no-nos. These are inviolable rules. 

Never tell the jury in opening your client will testify. You might just as well say "Hey Ms. prosecutor, here's a legal pad and pen, please start preparing to cross my client." You gain nothing, and you box yourself in- what if the case goes so well you don't need to call your client? 

Never not object because you're worried the jury will be upset with you or you do not want to call attention to the evidence. Read some case law on preserving the record for the legal reasons why you have to object (unless you sit on a bench at work. Y'all do not need to read case law as we all know. You know it all.).  No jury during deliberates and says "she's not guilty but that attorney objected so much maybe we should find her guilty."

Try and avoid Friday verdicts. 

Rarely if ever postpone opening until the prosecution rests. It never works out as you think it will. 

Never plead your client into some of the minor crimes during trial while contesting the main charge. It does not buy you good will and it just makes the prosecution's job easier. If your client possessed an undersized Snook while being arrested for murder, the jury can figure it out for themselves. 

In state court, speak to every jury in the venire unless you have a tactical reason not to. Do not let the judge hurry you into finishing voir dire. 

Do not thank the jury. It's a waste of time. If you must thank them, squeeze it in during the middle of closing. Not when you first address them or last address them. That's for amateurs. 

Do not be overly polite or helpful. The best criminal defense attorney you never heard of once told us  "The only thing I waive in court is the American Flag." He did not stipulate to lab reports or business records. He worked out of a storefront in an industrial town in the northeast and went decades trying 6-8 cases a year and losing only one or two. RIP our friend Lenny F. 

Do not be overly polite to the judge. They work for the state. Being nice to them does not get you good rulings. Once, after a win in Broweird a judge told us after the verdict- "I like you. You didn't try and kiss my ass."  Keep your self respect.  If you do not believe us, someday we will post the transcript of our contempt hearing for refusing to stand when the judge entered the courtroom during the trial. The state and the judge were so consumed with our rudeness, the defense slipped right by them.  And we were acquitted on appeal. 

Don't do the appeal if you lost the case. You need a fresh set of eyes. 

Presumption of Innocence and Burden of Proof only work in the movies. Every juror presumes your client guilty and you need, repeat- you need to prove their innocence. Reasonable Doubt only sounds reasonable. The defense wins when they remove all doubt. This isn't the law- but it's life and it's true and if you're tired of losing, stop arguing reasonable doubt in closing. Jurors will always vote for the prosecution in close cases, despite the Florida jury instruction about a having a conviction of guilt that waivers and vacillates.  it sounds nice. But it doesn't work one damn bit. 

Trial tactics come in many forms and flavors. It can be a sharp elbow thrown in the heat of battle, or the unseen knife deftly slipped into the heart of the prosecution's case at an unexpected time through a seemingly unimportant witness. There are no small trials or witnesses. Only small lawyers.

Last rule: Don't get caught up in tactics. Big moments win cases. The witness not being sure of the identification. The inability to prove possession. Threading a needle is the type of thing you talk about late at night at a bar during a CLE conference in Vegas, trying to impress some hot lawyer. Winning lawyers don't thread needles. They bludgeon the other side into submission until there is no doubt left that you have won. 

"Combat Tactics Mr. Ryan."

This is such a great scene, especially when the torpedo is about to hit and Sean Connery asks Alex Baldwin/Ryan what books he wrote and Ryan mentions a book on Admiral Halsey and naval tactics (which obviously refers to the mistakes Halsey made at the Battle of Leyte Gulf - although it's not mentioned in the movie dialogue) : "Oh I know this book. Your conclusions were all wrong Ryan. Halsey acted stupidly."  Great stuff for a WWII history nerd. 

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.

LEE BAILEY 2.0

 If you haven't done so already, click on over to DOM's blog and read Roy Black's guest post on F. Lee Bailey who passed away last week. 

Mr. Black's post and remembrances are valuable reading.  Lee Bailey along with Edward Bennet Williams (read the biography "The Man to See"), was the first generation of criminal defense attorney superstars (OK Abraham Lincoln, Thurgood Marshall, and others have a place in the early 18th and 19th centuries but Lee Bailey is the first famous criminal defense attorney in the last half of the 20th century). Roy Black came along in the 1970s. As Mr. Black writes, Lee Bailey burst on to the scene in the 1960s with his successful defense of Dr. Sam Sheppard - in his first year out of law school no less. The defense spawned a successful TV series (The Fugitive) and set Bailey on a course of high profiled defense cases, many successful, but none undertaken with anything less than a full fledged fight for his client. None of this "sign and flip" nonsense that so dominates our honourable profession these days, especially in Federal Court. As Mr. Markus is wont to say "You can't win a plea" which surely was in the DNA of Lee Bailey. 

Do not skip lightly over Mr. Black's recommendation to read the book about Lee Bailey's defense of Dr. Carl Coppolino "No Deadly Drug" which he rightly calls the best book on a criminal defense trial he has ever read - and we second that endorsement. We seem to recall a lecture on cross examination or experts  by Judge Milt Hirsch where he recounts Bailey's destruction of a defense expert in the Coppolino case in  two or three questions. Perhaps he will weigh in on that episode. 

And finally there is the insight, said before by Mr. Black- but worth repeating- on his education as one of the finest criminal defense attorneys of his generation. It was Mr. Black's reading and re-reading of the books on Lee Bailey's trials and Bailey's practice treatises that formed and honed his skills- at a time when reading books was the principal way we all educated ourselves. 

Like too  many in our profession, Mr. Bailey came to a sad ending with legal issues, incarceration and disbarment. But those are small postscripts to a career that inspired a generation of criminal defense attorneys to believe that ours is an honourable profession and one worth dedicating a life to. Lee Bailey taught us that there is no case that is not worth defending; no case that is unwinnable; and no client that does not deserve our best efforts. Bailey taught us to not just be in court- but to APPEAR in court. That standing up and saying "Rumpole on behalf of the defense and we are ready for trial" was a moment worth savoring with meaning. That as lawyers we didn't just say something at the beginning of the trial- we DELIVERED an opening statement, carefully planned. That there is nothing better than seeing in the eyes of a witness fear as we rise to cross examine them; that when they shake or hang their head and admit their testimony on direct was not correct and the defense version of the events is what really occurred,  or that the witness's version on direct is not believable, are moments that can be achieved by a well prepared criminal defense attorney. And that "NOT GUILTY" verdicts are not strikes of lightening, but are to be expected and achieved through fearless and dedicated work. 

Go read Mr. Markus's blog and Mr. Black's post and it will start you week off right- even if you wear black robes to work or are a prosecutor. 

LEE BAILEY HAS PASSED AWAY

 Famed criminal defense attorney F. Lee Bailey (known to his friends as "Lee") has passed away today. He had quite a career and quite a life. 

F. LEE. BAILEY

We can think of no better way to start off the 2015 blogging season than to refer you post-haste, to Roy Black's blog and his coda to F. Lee Bailey. 

Go here, now, and read, and learn. 

Lee Bailey's life reads like a Shakespearean tragedy, with a sad ending of disbarment, the roots of which were planted in one of his greatest achievements- the cross of detective Mark Furman in the OJ Simpson trial.  Roy Black wrote that at the time he didn't think Bailey had done much damage during the cross. But in a rare instance of your humble blogger seeing more than the Jedi-Master of Cross-examination, we immediately  saw what Bailey had done. The greatness of the cross was that Furman was finished, only he and the prosecution didn't know it yet. Like a ninja, Bailey had slipped in the knife without anyone knowing it.  And the lesson there was, as Roy Black wrote: "A great cross reverberates across the entire scope of the evidence and takes on a life of its own." Indeed. 

For us, constant worriers about the fate of the world, the ending of Bailey's career re-enforces a belief (nee fear)  we have had for sometime- the legal careers of old criminal defense attorneys often end badly.  Maybe it's because the vast sums lawyers occasionally collect cause them to forget the hard times, and they fail to save. 
As equally as likely is the superman complex- we walk into the belly of beast and save the damned. The rules don't apply to us. 

Or so we think. 

Until we make that one fatal mistake. We ignore that nagging pain until a health care disaster strikes us down.  We spend like the cases and clients will never stop. 
Or as Roy Black wrote about Bailey's downfall : "The man who protected everyone didn't protect himself."

Stop. You. Reading this. Stop. The texts and emails will wait. 
Read that again. "The man who protected everyone didn't protect himself." 

If it can happen to one of the greatest criminal defense attorneys of  the last sixty years, it can happen to you. 

Protect yourself. 
Rumpole's first admonition for 2015. 

See You In Court.