“Still, if a client protests his innocence, the lawyer has to decide for himself and not let his personal opinion interfere with the discharge of his duty to fully represent his client. Attorneys work in a world of two levels of reality. The first, ‘What is the truth?’ is vastly different from the second, ‘regardless of what the facts are, what is the appearance going to be for the ultimate benefit or detriment of the client in front of a jury?’ Unfortunately, all trial lawyers on both sides of the fence know that cases are many times decided on the latter, that is, appearances sometimes trump reality. That’s a miscarriage, in my view, but if a defendant is convicted, he can appeal. The prosecution, however, has no corresponding right of appeal from a ‘not guilty’ verdict.
“But, here’s how this all comes together for purposes of this conversation,” and Charlie paused to check Bernie’s reaction so far. He glanced at her, and her face messaged back a broad smile.
“Keep teaching the class, professor,” she insisted.
“I’m not getting tedious or overbearing, then?” he asked, hinting some worry on that score.
“Not hardly,” Bernie encouraged.
“Very well, then, what I’d like to point out is that there is a good comparison between what you do as a nurse and what I do as a lawyer. You treat people who have diseases and you don’t back off because of their conditions, nor do you judge the patient because you know how he or she got into the medical problem or condition. The same thing applies to me. I represent people charged with crimes and do a hell of a job, if you don’t mind me saying so!
“When I meet a prospective client who actually tells me he’s guilty of some crime, I can’t trust his judgment since the issue is too complicated, and it’s premature to reach such a conclusion. He may believe he’s guilty, but his judgment may be blurred or flawed and therefore untrustworthy. He may be relying on something another person told him, and so on. The list goes on, but his attorney must satisfy himself or herself on all the elements of the crime charged against the client. It may turn out ultimately that the evidence points to guilt, at which time the lawyer, after gaining permission from his client, would likely open negotiations with the prosecutor to reach a bargained plea agreement.
“On the other hand, the attorney may find an undiscovered witness who has a much different recollection of events. When that happens, law enforcement is informed, an investigator checks out the new information, and every once in a while, after the case is reviewed, the charges against the defendant may be reduced or even dropped in rare instances.”
Bernie’s curiosity got the better of her. “Let’s just say that after the latest investigation, the cops change course and let your client go, then charge someone else. Would you represent that next defendant? I mean, your reputation would be made on the case already.”
“Not possible!” Charlie replied emphatically. “What if the new defendant is prepared to testify that my original client is responsible? No, once a lawyer makes contact with a case for the benefit of a client, that’s it. It’s very difficult to even imagine a situation where there would not be a conflict of interest or at least the potential of one.
“Ready for the next lecture?” he asked.
“Bring it on,” Bernie encouraged, truly engrossed in the explanation being offered by her patient and very favorite lawyer.
“Here’s an example you might find interesting. You know how important biology is in your work, right?”
“Most certainly,” she confirmed, leaning forward in Charlie’s direction.
“Well, yes, but back to my point,” and his face reddened as he tardily recognized the unintended reference flowing from his selection of words, but he was caught immediately by his precocious and attentive pupil. Bernie was beaming broadly.
Following some uncharacteristic stuttering, Charlie continued with his explanation. “A particular case could be based exclusively on DNA evidence to establish identity of a defendant, in a rape case, for example. It’s absolutely critical to review the entire process of collection of the specimen, handling, and processing by the investigating agencies and finally the scientific analysis carried out to determine if there is any connection to the defendant. In the collection of such evidence, there are inherent risks of contamination and permanent damage to the sample material. Even switching specimens accidentally cannot be ruled out. Rather, it must be ruled out or the defense lawyer may have missed something very important in defending his client. I’ve not seen it personally, but I’ve heard of a laboratory mixing up samples. Once such an error is made, the case usually gets dismissed if the mistake is discovered but cannot be rectified. I hate to say it, but there is anecdotal evidence that some unfortunate forensic pathologists have been overworked to the point of distraction or sheer exhaustion. If a defendant’s life or liberty hangs in the balance, it’s extremely critical that his lawyer dig till his fingers are raw, if you get my meaning,” and this time Charlie recognized that Bernie’s gaze was securely fixed on her instructor. He thought it best to bring the lesson to a snappy conclusion.
“Let’s just assume that my client has authorized me to open plea negotiations with the prosecutor. There’s a wide range of possibilities and issues that must be addressed. Did you know that most offenses are broken into numerous grades of seriousness? Naturally, the ones most of us are familiar with involve capital homicide cases where the defendant’s life hangs in the balance. But nearly all the offenses on the books have levels from misdemeanor to felony, the most serious of which could even include the death penalty, of course.” Then it happened, Bernie blinked finally.
“In the homicide category, there’s a big difference between first and second degree murder that has to do with whether the prosecution can prove premeditation and deliberation or some other element in unique cases. This is a big issue, but very complicated, depending on the particular facts that are finally presented to the jury trying the case. The rules of evidence come into play and some close calls have to be made in most fully litigated cases. This in turn leads to automatic appeals of all cases where the jury returns a death penalty verdict. Reversals by the appeals courts are not uncommon, so every once in a while a verdict is overturned, the judgment reversed, and the case is tried again before a brand new jury. Generally the DA will retry these cases unless there’s a problem that can’t be fixed. Maybe, for example, important physical evidence becomes unavailable at the time of the re-trial or a key prosecution witness loses confidence in the idea of testifying again, and so forth. Some of these cases last for years if not decades, sort of like my lecture this evening,” and again he gazed at his student to see if she was still engaged.
“You can’t shake this old gal,” she promised as the ambient light accented the hues of her rust-colored hair that complimented her green eyes still fixed on the professor. “Besides, I never had a clue that things were so complicated at the courthouse.”
“Ready for the story of trials?” Charlie continued willingly.
“Ready when you are,” came the quick rejoinder.
“Okay. From the defendant’s point of view, trial is necessary only when no offer is outstanding or any offer that has been made makes it more attractive to take one’s chances before a jury. Assuming we do go to trial, we’ll take our time picking a jury, and depending on the seriousness of the charges, the selection process could consume a week or two. Almost every seasoned trial lawyer has his or her special manner of selecting the individuals who will sit in judgment of the case. Most of the time, written questionnaires are filled out by all of the prospective jurors. Their answers are analyzed before the selection process is started. In addition to taking note on the information provided by the prospective jurors, some lawyers hire handwriting experts to try to determine personality traits based on the curly queues and what not. I’ve looked into this approach although the court system is not anxious to spend the money for this kind of expertise in indigent defense cases. I do have respect for the theory, but can�
�t say I have any practical experience with it in the courtroom.
“Many jurors do start out with open minds, although first impressions usually become fixed, and then the thought processes shift to confirming and supporting the initial conclusions. That adds up to people becoming very stubborn, even before the case is finally submitted for decision. This is a very subtle but normal and nearly inevitable condition of trial, especially the longer they seem to drag on from the jurors’ perspective. Many jurors have difficulty keeping their minds open, and a defendant’s evidence is not offered until the prosecution has finished. The rule here is not to hold anything back; there’s no percentage in being coy. Even if your client must wait until the prosecution completes its case in chief before presenting his case, still there are ways to plant seeds of coming attractions, or distractions, if you’re just a little cynical. If a witness is testifying for the prosecution, the defense attorney should ask, if it’s at all appropriate in the particular case on cross examination, if the witness had ever become aware of a point that your client will present when his chance rolls around. At least the jury can anticipate something coming up later in the case from your client or his witnesses and it may just ring a bell later if and when it does get presented.
“Ready to hear about direct and cross examination?” Charlie asked deferentially, fully cognizant that he had already gone well beyond the unwritten rules of this engagement.
“I’m still ready,” Bernie rejoined, “although I have to say there are many parallels, just as you said, to what I do as a nurse. Neither your clients nor my patients really ever bargain for the trouble they’re in, unless we consider reckless lifestyles and such in the mix. I mean it’s difficult to hold a patient personally responsible for having a disease process that everyone knows could have been delayed or completely avoided with the exercise of a little better judgment. Once afflicted, they’re in trouble and they know it, but nothing can be done to replay the action, like the referees do in football games. They need good care and strong support, regardless of the social issues in their cases. This sounds close to the circumstances of your clients.
“I’m beginning to see nurses and defense lawyers in a similar light, thanks to your explanation. I had no idea, believe me. And it’s a shame the general public gets their laughs at the expense of you and your comrades,” she noted.
“People seem to need things and objects to vilify. Maybe it helps them redirect their self-reservations. Lawyers understand that. We also know where they come for help when things go out of their control,” Charlie fixed his gaze at Bernie and his mood seemed to brighten.
“You know something, my dearest? I have got to be the luckiest guy I know. I mean, here I am in the comfort of my own home with a beautiful and dedicated healer and care-giver, and I’m completely enjoying myself preaching about what I do. But I’m thoroughly self-absorbed, don’t you think?”
“I’d call it rapt involvement of both parties here tonight,” Bernie whispered softly while clinking her wine glass against Charlie’s and fixing her steady gaze into his dark brown eyes. The couple remained silent but not speechless for just a moment.
“Let us have a look at your busted paw and see how it’s healed,” and she ran her skilled fingers from his elbow down his forearm to Charlie’s left hand.
“Demonstrate your grip, please.”
Full compliance with the request followed effortlessly.
“My, my, ready for unconditional release and back to combat missions, I’d have to say,” she continued as the two nestled closer together.
“I am curious, professionally, of course, whether you have regained some of the finer uses of your extremity, say, the subtler degrees of touch and sensation,” she continued in her playful but mock-serious doctor mode.
Charlie accepted the invitation, placing his recovered hand tenderly on her breast. His movements seemed to meet with approval, and his examiner continued her participation without comment. As for the review of systems, both patient and caregiver signaled every indication of complete satisfaction with the range of motion the patient had regained. The physical examination continued into realms not taught in the classroom. Nonetheless, the results were completely satisfactory for each. Somewhat exhausted, but wanting for nothing further at the moment, each settled into the arms of the other, savoring the mysterious release from the day’s cares.
Bernie was the first to regain full consciousness. She eased out of Charlie’s loosened grip on her torso, slipped into her things cautiously so as not to disturb him and made for the front door. Opening it quietly, she was jolted into full consciousness when she discovered the gray-black void she stared at while trying to make visual contact with her vehicle. Impossible, but true—fog. Damn! That all-pervasive, concealing, treacherous, fucking fog, she thought, recognizing it instinctively. Bernie was a local and from growing up in the Valley she knew full well what was portended for the rest of the winter.
She was suddenly aware of Charlie’s presence as he slipped his arm around her waist and guided her gently back into the house.
“Going somewhere, are we?” he quizzed, closing the door once Bernie was safety back inside.
“Nowhere,” he said, answering his own question not waiting for any other response.
“But, I, I have to get home. You see …”
“Don’t be silly. When does your next shift start,” he asked.
“Four o’clock, tomorrow afternoon,” she answered.
“There, see what I mean. That settles it. Besides, if you left in these weather conditions trying to find your house, you’d sooner or later run out of gas and you’d be so disoriented you couldn’t even find a gas station much less get back to the safety of your own home—or mine for that matter. Anyway, you’re much better off in this house till morning. What is tomorrow?” he asked idly. “Oh, yes, it’s Saturday,” supplying the answer to his own question once again.
“We’ll get a good night’s sleep. You’ll be in the guest bedroom with its own bath, and tomorrow morning, I’ll wow you with Charlie’s special breakfast fixin’s. How’s that sound to you?” he asked, while displaying his favorite Cheshire-cat grin in her direction.
“It sounds very tempting, but I didn’t come prepared to spend the night,” she whimpered dejectedly.
“Of course you didn’t, but I have extra jammies that will easily fit you, a new toothbrush, and the bed is made with clean linens as my housekeeper was here only yesterday and there hasn’t been enough time for me to corrupt the place yet. I guess that pretty well settles it, right?” he continued, becoming just a little bit emphatic.
“I’m very glad I don’t have to face you in the courtroom,” she sighed, retreating into the security and warmth of the living room. “Which way to the bedroom?” she inquired.
“Certainly, ma’am. This way. Follow me, please. It is my pleasure to make your stay at Charlie’s Corner as comfortable and memorable as possible.” He heard himself whistling a jaunty little tune that he could not identify. Bernie played along, feeling a little bit like Alice in Wonderland after encountering one of the more enchanting characters in that story without the disquieting initial jolt of a sudden fall into a rabbit hole.
The night’s respite was thoroughly recuperative, and Charlie kept his promise, preparing and serving a memorable breakfast the next morning. By midmorning, the sun had bashed and baked its way through a good bit of the gloom outside, and Bernie was able to make her way home safely.
As Charlie curled up in his favorite easy chair with the morning paper and a refill of hot coffee, a smile crossed his face then spread sensually to all parts of his body. It was as though a thorough cleansing of his person, being, soul, body, persona (he could go on with a list of synonyms; he was a lawyer for goodness sake), had magically played out in the past twelve hours. He didn’t know exactly how, but he was certain of one thing: this was a mystery, which he felt no urgent compulsion to investigate or analyze. After all, there were times when inno
cence had its advantages, especially in matters of the heart.
The more he thought about it, he felt such sublimity that a celebration was needed. He hastened to the kitchen with his empty coffee cup and traded its dregs, after proper rinsing, for an ample serving of fresh orange juice (it was hard to beat the citrus products from Tulare County) and then added an overflowing jigger of vodka to the juice cocktail. He felt even mellower for several moments and then the day disappeared into Sunday and the weekend was over before he knew any better. Charlie had no memory from the moment Bernie bade her good-byes until he was easily roused by the alarm clock that sent him off Monday morning to resume his hectic schedule serving clients.
He had a major drinking problem, but it did not dawned on him as brightly as the morning sun that doused his house with its radiance. He trudged off to a day of preliminary hearings and negotiations with deputy district attorneys over the fates of his clients.
14
Summary Judgment
May 2007
Once a civil lawsuit is filed, numerous procedures are available to the litigants to assist in their preparation for trial. Many of these options are tailored to seek specific results and are not necessarily utilized in every case. A motion for summary judgment is an example of such pretrial proceedings. In this unique case, the death of Mr. Martorano triggered the opening of a probate file to distribute his property to the rightful heirs according to instructions found in his will. Arguments over issues of entitlement to share in a decedent’s estate are not uncommon. Barnes’s claim was known as a will contest.
(2012) The Court's Expert Page 19
