Crime, Trials

Criminally Yours: A Trial Virgin (Part II)

No amount of practice can truly prepare you for your first trial.

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Any time you do anything challenging for the first time, whether it’s singing in public, careening down a zip line, or jumping off a diving board — it takes a leap of faith. No matter how much other people prep you or describe the experience, there’s simply no way to anticipate exactly how you’ll feel doing it until you’ve done it yourself.

First trials are no different.

Even if you’ve had some training, and let’s assume you have, if you’re on the verge of your first one — you’ve been exposed to mock trials and practice summations; you’ve interviewed your classmates as faux defendants and cross-examined teachers — there’s nothing like the real thing.

Everyone gets nervous, some frantic. And even when you’re experienced, the nerves never completely go away, although they lesson. (If they completely disappear, watch out! You might be missing the push you need to give it your best fight.)

Good trial work is performance. When I was at the Legal Aid Society in my early years, they even offered an “acting for lawyers” class. It was a great idea. Even if you don’t have a defense in a case, you have to believe in yourself and your cause, or you ain’t gonna convince a jury.

My first trial was Trevor Jones (last week’s column), a very nice guy with a long criminal history. He was seen by six cops picking a tourist’s pocket at Times Square and caught in the act. There was no video of the crime and he never confessed to either the cops or me, but six police officers (who, by the way, recognized Trevor from earlier crimes), all saw it happen.

I was mortified by the Judge at every turn. “That’s not how you ask a question, Ms. Messina.” “Stand at the podium when you address the jury.” [I tend to wander.] “Never turn your back on the court.” [I’d dropped a pen.] I felt like an arcade ball ponging from one barrier to the next.

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I cross-examined the cops the best I could, setting up my questions as ‘themes’ and ‘chapters’ as we are taught, then read them off faithfully, barely listening to the answers, and certainly unable to riff off of them. [This comes with time and practice.]

There were no defense witnesses. With his long rap sheet for similar crimes, Trevor was the last one who could testify on his own behalf.

I performed my summation dutifully. Can’t remember what I said, but I remember most of the jurors looked at everything but my face.

It didn’t take long for there to be a verdict.

And that, dear friends, is one of the most dramatic moments (besides perhaps the birth of your child or learning whether you passed the bar) that you’ll ever experience. The jurors file in solemnly. Conventional wisdom has it that if they look at you with smiling, open faces, you’ll get an acquittal. If they march in dour, aggravated, and ready to leave — you’ve got a conviction. [BTW, in later years I’ve learned this not always to be true. Sometimes they come in laughing and smiling and still convict the crap out of your client.]

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They did the latter.

“Madame Foreperson, do you have a verdict?” She stands,“Yes, we do, Your Honor.”

“Will the defendant please stand.”

Trevor got up, me next to him, two lone sentinals before the tsunami. We awaited the pronouncement or absence of one word, “Not” to determine the next few years of his life.

“How do you find the defendant, Guilty or Not Guilty.”

“Guilty.”

I didn’t crumple or cry — on the outside. But I was shaken hard. I knew it was a dead loser case, but what if my inexperience and incompetence got an innocent man conviction. “Guilty” hit me like a sock of rocks.

Trevor registered nothing. He grasped his Bible, and calmly turned to my supervisor, “She fought really hard. I appreciate that.”

I was clearly more shaken than him. He must have noticed.

As a sat to collect my things and let the process settle in, he tapped me on the shoulder. “Don’t worry Ms. Messina. I really did do it.”

Earlier: Criminally Yours: Your First Trial (Part I)

Toni Messina has been practicing criminal defense law since 1990, although during law school she spent one summer as an intern in a large Boston law firm and realized quickly it wasn’t for her. Prior to attending law school, she worked as a journalist from Rome, Italy, reporting stories of international interest for CBS News and NPR. She keeps sane by balancing her law practice with a family of three children, playing in a BossaNova band and dancing flamenco. She can be reached at tonimessinalw@gmail.com or tonimessinalaw.com.

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