Jay Gouldon, Esquire
Washington v. Whitaker and City of Charleston, 451 S.E.2d 894 (1994).
Josephine Washington worked in the laundry of the Mills Hyatt House Hotel for over twenty-five years. She stood barely five feet tall but carried the weight of her entire family on her shoulders. She lived in a small, public housing apartment at 37H Flood Street with her two daughters and two grandchildren. Late one night there was a knock on her door. Her daughter, Collette, opened the second story bedroom window to ask who it was and a voice from the shadows below asked for “Dean.” Collette said Dean lived next store as Josephine opened the front door. She was pushed back inside by undercover policemen rushing into her apartment. They ordered Josephine to gather her family into the living room. Detective Gregory Whitaker handed her a search warrant in which he attested that he’d witnessed a confidential informant purchase cocaine from a man named Dean at 37H Flood Street. Josephine’s protest the police were in the wrong apartment house fell on deaf ears as they ransacked her home. They didn’t find any drugs, or any evidence of drug activity, but Detective Whitaker decided it would be necessary to strip search the women and children in the apartment anyway.
Lawyers today too often associate other lawyers for referral fees. They’ll refer clients to other lawyers for half the fee. This practice turns human being clients into commodities and lawyers into hucksters just out for a quick buck. I was taught to associate other lawyers on cases to learn from their experience and to enjoy their camaraderie. I associated Jay Gouldon on Josephine’s case because he had a sharp legal mind, experience handling civil rights cases, and I knew we would enjoy working together on the case. It soon became apparent I’d made the right choice as Jay quickly taught me there is a legal mine field you have to navigate to bring a civil rights case to trial.
Cases start with good pleadings and Jay’s experience enabled him to draft a solid complaint against the City of Charleston and Detective Whitaker. It was as if there were two completely different cases, with completely different elements of proof and damages, being pled at the same time. As to the City of Charleston, we had to prove the City was deliberately indifferent to Josephine’s constitutional rights. As to Detective Whitaker, we had to prove he violated Josephine’s clearly established constitutional rights. Sounds straightforward but these standards turn out to be illusive in actual practice. Jay tried to find another case in which police officers had acted in such an unhinged manner but couldn’t. All he could find were appellate court cases allowing strip searches under very limited circumstances, such as when a person is being lodged into a jail. Jay masterfully argued, since none of the recognized circumstances allowing strip searches existed, the strip search of Josephine and her family was clearly unconstitutional. Jay won the argument at summary judgement, but it was sobering to realize how easy it could have been, and too often is, for a judge to toss an egregious civil rights violation simply because the exact thing never happened before. Worse than that, to realize since first impression cases are routinely dismissed on this ground, they can’t establish the constitutional violation for the next case, no matter how often they occur.
With Jay’s help we finally made it to the Court room. I often tell people, if they see me in a courtroom, I either look like I’m a really good lawyer or a really bad one. Like a really good lawyer if I have a case so strong the insurance company can’t offer enough to settle. Really bad when I have a case so weak the insurance company won’t offer anything to make it go away. Most cases fall in between and are settled long before trial. Josephine had one of the first kinds of cases that made Jay and I look like two of the best trial lawyers ever to grace a Charleston courtroom but, if the truth be known, we were just bit part players and it was always Josephine who was the star.
You get breaks in a courtroom and the breaks in Josephine’s case started falling our way right from the start. Detective Whitaker and his undercover narcotics unit showed up late for jury selection and looked more disheveled than the Keystone Cops. Then the City’s defense counsel decided to argue in his opening statement, since the search warrant was valid, strip searching the woman and children was perfectly legal. It was as if he was arguing Josephine and her family should be thanking the officers for trampling their rights rather than suing them.
As a general rule, a lawyer should resist trying to tell witnesses what to say. Lawyers aren’t movie directors and witnesses are seldom actors who can learn a script. If you tell a witness what to say, it will come across for exactly what it is, practiced and insincere. When you have a client like Josephine, you put her up and stay out of the way as she tells her story. Josephine spoke in simple and plain words the jury understood. She was proud of her family and fiercely defended their honesty. She walked the jury through the events of the night her home was raided without embellishment using short declarative sentences in the present tense like the raid was happening as she testified. The jurors were captivated and believed every word she said.
Towards the close of her direct examination, I asked permission to call Josephine up before the jury to demonstrate what the police officers did. She stood before the jury and demonstrated how the police had her lift her pendulous breasts so they could look beneath them for drugs. Then, she turned around with her back facing the jury, bent over, and grabbed her own buttock with both hands before stopped suddenly, twisting her her head back around facing the jury and said indignantly, “… and they looked right up my directum.” As good a lawyer as I think I may be, I would never in a million years have thought to say it that way. And her words left everyone knowing just how degrading the strip search was.
Good lawyers lay the groundwork for an appeal at the same time they try a case. Some of the hardest parts of putting Josephine’s case in was putting in the dry and tedious City policy and training manuals which were every bit as boring as they were necessary. Jay did a masterful job presenting the evidence we’d need later to win the appeal.
When it was the City’s turn to put up its case, the more Detective Whitaker tried to bolster his affidavit he witnessed the confidential informant purchase drugs from 37H Flood Street, the more it became obvious he was too far away and it was too dark for him to see what apartment his informant went to. The more Detective Whitaker tried to justify what they did to Josephine, her daughters, and granddaughter, the more indefensible their position became.
Realizing the officer’s testimony was going down in flames, the City’s attorney decided to call for help. He called the Magistrate who signed the warrant to emphasize the warrant authorized the search of the apartment and all persons found therein. That exploded in his face when, the trial judge allowed me to ask if the Magtistrate would have signed the warrant if Detective Whitaker had said he planned to strip search any grandmothers, mothers, and children in the apartment. The Magistrate emphatically said no. Undaunted, the City’s lawyer decided to call Captain Rubin Greenberg, Charleston’s celebrity police chief, in an attempt to save the case.
Reductio ad Absurdium is a form of argument every lawyer needs to learn. You use it to impeach and contradict a witnesses’ testimony by reducing it to it’s absurd conclusion. Chief Greenberg felt compelled to justify strip searches to keep officers from being injured or killed by concealed weapons. “So pat down searches wouldn’t be enough?” “No, suspects can conceal guns or knives beneath their genitals,” Chief Greenberg testified in all seriousness. I couldn’t help but notice the Sheriff’s deputies providing courtroom security began were walking around the courtroom bowlegged cracking jokes about concealing pistols under their pistols. “And, of course,” I asked, “that means you have to search baby carriages too?” “Definitely, suspects hide drugs, guns, and all kinds of contraband in baby carriages all the time,” he replied with certainty. “And, what about bedridden grandmothers, would you have to strip search them too?” I asked as the light went off Chief Greenberg’s credibility had hit a dead end. The theme of the closing argument became it is never okay to strip search a bedridden grandmother.
The jury agreed and awarded Josephine and her family, $242,600.00 actual and punitive damages but we were still a long way from ever seeing a penny of the money. That would require withstanding an appeal to the South Carolina Supreme Court by the City and an amicus curiae brief filed by the South Carolina Law Enforcement Officers Association. Fortunately, I had Jay’s help all the way. Trying civil rights cases is challenging but can be very rewarding. If you have a client whose rights have been grievously violated, don’t refer it, associate a lawyer with experience handling civil rights cases and have fun being a real lawyer fighting for real justice.
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