What Do You Do When You Get A Terrible Case? You Make Lemonade

Being a criminal defense attorney requires varied skills.  Not only do you have to be adept in legal matters like knowing how to argue in court, try a case well, research and write, and negotiate with judges and prosecutors — but you must also be psychologist, social worker, trusted adviser, and teacher to your client.

Often, one of our most difficult jobs is persuading reluctant clients to plead guilty.  Do this too soon, and they think you’re not trying to help them.  Do this too late, and they may lose whatever plea offer that was on the table.

However, because the full strength of a case is not known before trial (at least not in New York State, where discovery isn’t turned over until the last minute), it’s hard to know how bad a case against a client is until the jury panel is at the door.

That said, some defendants, even when they learn how bad the case against them is, refuse to plead guilty. Some of them simply face too much time in jail and figure, what have they got to lose; others are in denial.  For whatever reason (mental illness, pride, etc.), they cannot admit to you, the judge, or themselves, that they committed the crime. They hope against hope that their attorney will be able to magically pull a rabbit out of his hat and win, no matter the odds.

These are the cases I hate to try.  I don’t like feeling like selling garbage to a jury. “Yes, so there is a DNA hit, a full confession, and video of my client doing the crime.  That doesn’t mean he’s guilty!”  Yeah, right.   I feel like a used-car salesman selling a crappy car to a customer who doesn’t need it.

But as the saying goes, when all you’ve got are lemons, make lemonade.

So, how do you make lemonade and not feel sleazy while doing it?

It all hangs on three words — burden of proof.  I’m never obliged to prove my client didn’t commit a crime.  The People are required to prove he did.  (For those who take moral umbrage at this, it’s just the way it is.  As I said in a recent column, an ER doctor assists the ill, he doesn’t judge them.  I do the same for my clients.)

I’ll give you an example.  I had a recent case where a gun was found (following the execution of a search warrant) in my client’s apartment.

A detective took the stand and talked about the search — breaking down the door, corralling people into the living room, rummaging through drawers and closets, then finding a 9 millimeter wrapped in a t-shirt on the floor of my client’s closet.  They also recovered matching ammo inside of her purse along with her house keys.

Once arrested, my client told police she’d found the weapon months earlier while walking her dog.  She’d brought it into the house and forgot all about it.  Uh huh.

How do you make the lemonade?

First, I harped on lack of corroboration.

Although the detective searched the apartment side by side with another detective, the second detective was never called to the stand.  (He’d retired.)  Next, the alleged statement my client made had not been recorded or videotaped and was never written or signed by her.  The only person who could speak to its veracity was the detective.

Then, I caught a lucky break in that after the prosecutor tested the gun for DNA, none of my client’s showed up.  The prosecutor put on a forensics expert to actually say that lack of DNA doesn’t mean she didn’t touch the weapon — some people are not “shedders.” But still in terms of proving she did touch it, that’s pretty weak.

I argued hard that without corroboration, with other people in the home who might have had access to her closet, and with the word of only one cop when there was another who could have corroborated his position — that was insufficient to prove the case beyond a reasonable doubt.

She was acquitted.

Note, I never argued actual innocence.  With a weak case, that’s dangerous territory and frankly unnecessary.  You want to keep the jurors focused not on criticizing your case, but on the weakness of the prosecution’s case.  Less is more.  I always remind jurors in voir dire, opening, and closing, that they may never really know what happened the day of the crime.  In my case, they may have had lingering questions about how the gun got to her apartment and to whom it belonged, but questions generally amount to doubts, and if the doubts are reasonable, they cannot convict.

There’s a great phrase in the jury instructions that judges in New York read at the close of a case.  In those instructions, a great deal of time is spent explaining what proof beyond a reasonable doubt is.  Jurors may think the defendant “probably committed the crime” but, as the judge says,  “probably is not enough.”

In my summation, I always include this line so that jurors will listen for it when the judge reads it.

In the case I described above I told them, “I don’t know how that gun got to my client’s apartment.  She might have brought it in, she might not have.  I wasn’t there.  Neither were you.  But even if you probably think she knew that gun was in her closet, the judge will tell you that probably is not enough.”

While I don’t love trying lemon cases (and the one I listed above is far from being the worst I’ve tried — in fact, it’s one of the better), when you don’t have a choice, you’ve got to come up with something.

Harping on the burden of proof and not actual innocence is always the way to go.

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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 by email at [email protected] or tonimessinalaw.com, and you can also follow her on Twitter: @tonitamess.