Harve Jacobs, our local Live 5 News crack crime reporter, had no idea who I was before he pulled the bonehead stunt of staging the grieving mother at her slain son’s graveside the Sunday night before jury selection on Monday morning in the trial of my client for his murder. I filed an immediate motion for change of venue due to prejudicial pretrial publicity and subpoenaed Harve to testify at the hearing. Live 5 got all worked up I was infringing on their First Amendment rights and sent an army of silk stocking lawyers to the courthouse Monday morning to suppress my subpoena. My motion upset the General Sessions Judge’s expectation he would begin the week picking our jury but not as much as he Harve’s blatantly prejudicial broadcast upset him. The Judge denied my motion but ruled we’d pick a jury from somewhere outside the Channel 5 broadcast area and bus the jury into Charleston for the trial to avoid any prejudice.
The Judge choose Anderson, South Carolina as the county where we would pick our jury. Anderson happens to be about as far away from Charleston as you can get and still be in South Carolina. D. Bruce Durant, who was trying the murder case with me, and I spent three hours and half hours that afternoon driving to Anderson to pick a jury in a county where neither of us knew anybody the next morning.
South Carolina doesn’t allow questioning of potential jurors probing for preconceived ideas, biases, or prejudices. Lawyers are given a list with the potential juror’s names and addresses, their education and employment, their spouses’ employment, and information whether they’ve ever served on a jury before but that’s all you get. Except for the few years he practiced with me, Bruce was a dedicated, hardnosed career prosecutor used to having all the resources of the Solicitor’s Office and police department feeding him information about prospective jurors. I explained private lawyers have to fend for themselves by asking other lawyers if they know anything about the potential jurors.
All the lawyers we spoke with said there was only one lawyer in Anderson we should ask for help picking our jury and his name was Harold Lowry. Bruce pretty much viewed all criminal defense lawyers as lying, cheating, backstabbing, money grubbing sons of bitches and was mildly surprised when we called Mr. Lowry and he agreed without hesitation to meet with us that night. Bruce would later comment that Mr. Lowry spent a couple hours late Monday night going over the jury list and a couple more hours Tuesday morning picking a jury in court without ever once mentioning a fee.
It was already dark when we found our way to Mr.Lowry’s address on the outskirts of Anderson where he’d converted an old house into his law office. We entered the living room/reception area where we were greeted by Mr. Lowry who had a full head of gray hair and a face weathered by the South Carolina sun but he also had a distinctive spark in his eye and ready smile as he firmly shook our hands. As he led us to his office in the back I noticed the walls of his hallway were covered with newspaper articles about criminal trials he’d won. I commented most of his cases seemed to involve mill workers and he happily confirmed his clients were just that before claiming with hardy laugh that mill workers were the most reliable clients a criminal defense lawyer could ever hope for.
Mr. Lowry settled into his near worn out, high back chair behind his cluttered desk and asked us to tell him about our case. It’s hard to summarize what a murder case is about but I gave it my best shot. I told him a young, white boy, the victim, was working as a stocker in a local supermarket. He walked to a nearby park on his break where he ran into a group of young black boys following a group of young black girls walking home after school. He approached the boys asked to buy some crack cocaine which pissed them off signaling the white boy thought all black kids sold crack. In a rush of teenage hormones, the young black boys decided to relieve the white boy of the drug money he told them he had but, when they demanded his money, the white boy took off running. The black boys chased him through the neighborhood next to the park and finally cornering him by a corner lot with an old picket fence in need of repair. The white boy turned and withdrew the hooked box cutter he used to open carboard boxes at the supermarket and used it to open up the thigh and abdomen of the first black boy that got close to him. Everyone froze as the boy screamed grabbing his gapping wounds. Everyone except that is for one boy in the gathering crowd who grabbed a fence post, pulled it loose, and used it to beat the white boy to death. The media picked up and ran with the racial angle of a group of black boys beating a white boy to death and never bothered mentioning any of the rest of what actually happened.
We explained to Mr. Lowry that all the black boys were charged with murder. How the solemn prosecutor informed the press eager to fan the flames that the hand of one is the hand of all and promised that justice would be done. Usually, prosecutors start at the bottom of a conspiracy and work their way up, but not in this case. The prosecutor went after the boy who wielded the fence post first. Facing life he plead guilty, agreed to testify against the others, for a lesser sentence of 30 years. The headlines in the press complained the sentence was too lenient. Justice for the other boys turned into one young black boy after another pleading guilty for hard time in order to avoid the threat of even more draconian sentences. Bruce and my client was the last holdout. He steadfastly maintained he never touched the boy and refused to plea to anything despite both Bruce and my explaining the precarious predicament he was in. Then we told Mr. Lowry about Harve Jacobs and his Live 5 News staging the mother at her son’s graveside that resulted in our picking a jury all the way up state in Anderson.
Mr. Lowry thought that was unusual but seemed satisfied he’d heard all he needed to know about the case as he began going over the jury list with us. He didn’t know everybody, but damned near. He’d represented a surprising number of the potential jurors or their families for one reason or another over his many years of practice. He pushed back against our concerns the poor whites of Anderson County might buy into the racism angle. To his mind the people of his hometown were God fearing, hardworking, family loving folks who would do the right thing if called upon to serve. He suggested we were the prejudiced ones for thinking otherwise. When we suggested we would like more blacks on the jury, he said, “there you go again, jurors have to be selected or struck based solely on their individual merit.” He pointedly argued the last thing we wanted on our jury was a “filler,” someone selected who would just sit on the jury but go along with the others.
Mr. Lowry attended the jury selection at the courthouse with us in the morning. It seemed like he knew everybody and took care to stop and talk to everybody he met. Jury selection comes down to the luck of the draw and luck was with us in Anderson that morning. All of Mr. Lowry’s must strike jurors were stricken. Mr. Lowry pronounced he was satisfied with our jury and wished us well. Bruce and I shook hands with him and drove back to Charleston. I never saw Mr. Lowry again but have tried to repay his kindness by making it a point to thoroughly review every jury list ever sent to me by another lawyer picking a jury. The potential jurors weren’t told they’d be bussed down to Charleston and put up in a hotel for the trial which was rescheduled for the following week.
Bruce’s years of experience as a prosecutor made him one of the most experienced trial lawyers I’ve ever known and tried a case with. He did a masterful job reviewing what we lawyer’s call discovery including copies of witness statements, descriptions of the physical evidence, and the results of forensic tests. As a prosecutor, Bruce relied on the evidence gathered by the police who, on the whole, do a good job collecting the evidence they think will help convict a defendant. As every defense lawyer soon learns, the police don’t do near as good a job collecting statements or evidence that is inconsistent with their theory of the case because they know unfavorable statements not written down and unfavorable evidence not collected doesn’t have to be turned over to the defense. I explained as defense attorneys we have to go back over the investigation to see what the police missed.
To Bruce’s credit he tracked down the young black girls who were walking home from school that day. They hadn’t seen the actual killing, so the police hadn’t paid too much attention to them. Bruce asked the girls the right questions and discovered the police had indeed missed something. Something that changed what at first glance appeared to be a slam dunk conviction into a solid legal defense. What Bruce discovered was the young black boy who picked up the post and beat the white boy to death wasn’t part of the group of young black boys who had been following the girls home from school, not part of the group approached in the park by the white boy and asked for crack cocaine, and who chased the white boy planning to rob him of his money. He was just someone from the neighborhood the white boy was chased through. Someone who had become incensed when he saw the young black boy sliced open and bleeding profusely. Bruce had discovered a fatal flaw in the State’s theory of the case which was after the group of young black men tacitly agreed to rob the white boy, they all became responsible for anything done by any of them during the commission of the robbery. This is the hand of one is the hand of all theory of criminal liability, otherwise also known as the felony murder rule. The problem with the State’s theory was, if the boy that killed the white boy wasn’t part of the robbery, then our client wouldn’t be guilty of the unrelated murder he committed.
We already had our jury so when our trial started we got right into opening statements. The prosecutor sounded like a Sunday preacher pounding the podium with it being the jurors solemn duty to follow the law, and the law said the hand of one was the hand of all. We kept our cards close to our chest and talked about the presumption of innocence, right to remain silent, the burden of proof beyond a reasonable doubt resting solely upon the prosecution. The prosecutor began by calling the usual crime scene technicians to set the scene with photographs and diagrams, and introduce the bloody fence post murder weapon. Then he started calling his cooperating co-defendants who answering all the questions they were asked exactly as they were answered in their written statements. He was following the discovery like a script. Since, they hadn’t been asked the right questions, we didn’t ask them much of anything on cross-examination.
Over the lunch break, Bruce and I were eating lunch at nearby restaurant when up walked old Harve himself who smugly asked if we were putting up the “no defense defense.” It was apparent from the tone of his voice Harve thought we were about to get our comeuppance for challenging his journalistic integrity.
After lunch the prosecutor called the first of the young girls to the witness stand. She positively identified our client as one of the boys who had been following her home after school that day. One of the boys who set off chasing the white boy. But said she hadn’t seen the actual killing and came up on the scene after it was over. Bruce was very polite with the young girl on cross-examination and asked a series of easy, soft ball questions of little import, before, almost as if by an afterthought, he asked her if the boy that beat the white boy to death was part of that same group boys who had been following her home from school. She said, no he wasn’t. Bruce thanked her and said, “no further questions.” The light hadn’t gone off yet for the prosecutor and he went ahead and called the second girl with the same resulting testimony. Maybe the significance of the girls’ testimony hadn’t dawned on the prosecutor but it had for the jury. I could see them glancing at each other in disbelief and shaking their heads. By the time the prosecutor saw his problem, it was too late and his attempts to fix it just highlighted the problem and made it worse.
As murder trials go, it was a short one. A day and a half and the State rested its case. We knew we had them on a legal technicality and immediately moved for a directed verdict. The Judge knew we had them too but Judges are extremely reluctant to grant directed verdicts of not guilty in murder cases. The best he could do was state on the record he denied the motion reluctantly and could revisit his ruling if the jury convicted the defendant. We informed the Court the defense rested and would not be calling any witnesses.
Under Soult Carolina procedure, if the defense doesn’t put up any evidence, the defendant is entitled to the last argument. Unlike the prosecutor who has the burden of proof and gets first and last arguments, a defendant who doesn’t present any evidence only gets the last argument. So the prosecutor gave his closing argument first. Not being able to pound away at the hand of one is the hand of all like he did in his opening, the prosecutor tried focusing on the brutal beating that took the victims life. Bruce gave the closing argument for the defense and, as much as I’d like to tell you he made a passionate plea for truth and justice, the truth is there wasn’t much Bruce needed to say the jurors hadn’t already figured out for themselves.
Probably wanting to get back home, the jury returned a not guilty verdict in record time. Bruce had won his first not guilty verdict as a defense attorney in a murder case. We were just getting started celebrating our not guilty verdict at an uptown happy hour bar, when Harve appeared on the big screen tv above the bar. He was ambushing jurors with lights, cameras, and questions as they came out of the courthouse to board their bus home. How could they set our obviously guilty client free? One visibly indignant juror stopped, turned back around, and stepped back into the camera lights. Gathering his thoughts all he said was, “We shouldn’t of had to be bussed down here to clean up your mess. If you’d charged him of the right crime, we’d of convicted him sure enough.”
Chanel 5 quickly cut away from Harve as Bruce and I laughed in disbelief. We ordered another round of drinks and raised a toast to Mr. Harold Lowry of Anderson, South Carolina. A lawyer we had just met, and hardly knew. Who had defended many more criminal cases than we ever would and who would have undoubtedly joined our celebration if he could have.
The next morning, after my head cleared from the night before, I reminded myself lawyers too often confuse their jury verdicts with their professional skills. More often than we like to think, lawyers’ courtroom victories are dependent upon fortuitous things, like the good jurors from Anderson County who found the truth in our trial. Or the wonderful lawyer, Mr. Lowry, who helped us pick them. Bruce went back into public service putting bad guys away in jail and I don’t know if he ever thinks about the murder case we tried together and won. No doubt he’s had many more courtroom victories since then, but I’d doubt he’s ever had another not guilty verdict in a murder trial as a defense lawyer, nor as much fun celebrating a victory as we did that night.
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