-
MY FIRST MURDER CASE
A young man with a wife and infant baby joined the Army when he couldn’t find decent work withy benefits in his hometown. He was stationed at Fort Jackson in Columbia, South Carolina, to receive his basic training. They planned was his wife and baby to live with his parents until he finished boot camp, but his wife unexpectedly got pregnant with their second child,prolonging their separation. After boot camp the soldier recieved orders for AIT, advanced individual training, at Ft. Jackson to become an MP. After the birth of their second child, he found an off-base apartment so his wife and two boys could join him.
It was a struggle making ends meet on his meager Army pay but struggle they did looking forward to a better future. At least his family had TriCare medical coverage so his family could receive regular medical care. They were poor but happy and healthy. Little could they imagine just how fragile their world would turn out to be.
Several months after the family reunited, the two-year-old caught a bad upper respiratory infection. About the time he was getting over it, he gave it to his mother and baby brother who was just shy of six months old. One morning, sick as a dog herself and exhausted after feeding the two-year-old breakfast, the mother fell asleep on the sofa in the living room with the baby cradled in her arms. The next thing she knew, she awoke suddenly with the two-year-old standing at the other end of the sofa and her baby lying on the floor between the sofa and coffee table. She jumped up and snatched her baby off the floor as she realized he wasn’t breathing. She ran to the phone in the kitchen and dialed 911 for help. When the operator told her to stay on the line, she dropped the phone but could still be heard in the background frantically trying to revive her baby. Tragically, it was too late .
An examination revealed the baby had a fractured skull and subdural hematoma which the doctor concluded could not have been caused by falling off the couch. The mother still in shock was arrested and charged with homicide by child abuse. A DSS caseworker, concerned the father couldn’t care for the older child by himself, convinced a police officer to take him into emergency protective custody triggering a South Carolina law requiring an emergency removal hearing before a Family Court judge.
The serviceman husband didn’t have enough money to bail his wife out of jail, never mind enough money to retain a partner in the law firm where I was working to represent his wife on the murder charge. All the father could scrape together was enough to hire me, the newest associate in the firm, to represent him for the Family Court removal hearing. The father’s parents, where the mother and the children had lived before moving to South Carolina, were already driving to South Carolina to take custody of their grandson. I thought that would resolve the need for a hearing but the DSS attorney informed me DSS policy prevented her from agreeing to an out of state placement without a complete home study investigation. The best she could offer was, if the mother and father would consent to a finding of probable cause to keep the surviving child in DSS custody, DSS would consider the grandparents for temporary and permanent placement.
Neither the husband nor mother would agree they had done anything to harm or endanger either child and I figured DSS would have to consider placement with the grandparents no matter what happened at the hearing, so we rejected the plea offer. That’s how I found myself representing the family at the removal hearing. Little did I know it was the beginning of my first murder case.
At the hearing the DSS attorney called the doctor who diagnosed child abuse as her first witness thinking to make short shrift of the hearing. His credentials were impressive. He was a distinguished looking doctor in his mid-to-late forties who had been trained in pediatrics at our Medical University of South Carolina. The Judge readily qualified him as an expert witness entitling him to give opinion testimony. He testified x-rays revealed the infant had a minimally displaced fracture on the back of his skull but he went on to explain, it wasn’t the fracture, it was the increased intracranial pressure caused by a subdural hematoma or bleeding on the brain, that caused the infant’s death. When asked if a fall from the sofa could have caused the baby’s injuries, the doctor emphatically said no and launched into a long speech about how infant’s skulls remain pliable after birth when they have to have squeeze through the birth canal and that the medical literature has established the amount of force generated by falling off a couch is insufficient to cause a fracture like the one found in this case. Did he have an opinion based on a reasonable degree of medical certainty what caused the infant’s injuries in this case? Why, yes he did and said it was most probably child abuse as if it was an irrefutable fact. Thank you, doctor, please answer any questions this young lawyer in way over his head may have.
I timidly asked the doctor, so it’s your opinion there wouldn’t be enough physical force generated from falling off the sofa to have caused this infant’s fractured skull? That’s correct, he answered confidently, before gratuitously adding, a standing baby’s head is higher off the ground than a sofa and they fall all the time without fracturing their skulls as if to say case closed. But something didn’t sit right with me, so I asked, what if the baby was standing up on the couch, that would put his head, what four or five feet off the floor, wouldn’t that be sufficient to cause a fractured skull. No, the doctor again said again without hesitation, there has been no description in the medical literature of children fracturing their skullds falling off furniture period, end of discussion. I detected condescension in his voice like I wasn’t smart enough to understand simple physics, so I pressed on. What if he struck the back of his head on the edge of the coffee table as he fell, couldn’t that concentrate enough force to have caused the fracture? The doctor had obviously been down this road before and dismissed my question with a wave of his hand explaining yes that could happen, but added if that were the case I would have found localized tissue damage where the head struck the table edge and I didn’t find any of that in this case. Okay, but what if his older two-year-older brother pushed him forcibly backwards off the couch onto the hard floor, could that cause enough force to cause the fracture and hematoma? For the first time I noticed the doctor hesitate, thinking hard whether he had ever read any medical articles addressing such a scenario. Deciding he hadn’t, he apparently felt secure enough to express his unsupported opinion on the subject. No, in my opinion that still wouldn’t be enough force to cause the injuries I observed. Doctor, I noticed you didn’t say anything about the medical literature supporting your opinion, do you know of any articles you can refer us to to support your opinion that being pushed aggressively by an older sibling off a sofa couldn’t be sufficient? Not off the top of my head, counselor, he said slightly miffed, my opinion is based on my education and training in pediatrics, and my years of treating thousands of abused babies hoping that would be the end of it. But somehow his answer wasn’t as convincing as his earlier testimony. I could sense his façade of infallibility weakening and him beginninng to worry he was skating on thin ice. So I pressed on, trying as best I could, to reenact the scene in the family’s apartment that morning with my own body movements. What if the baby’s mother, sick herself with the flu, exhausted, and disoriented having just woken up on the couch to find her baby lying on the floor. She jumps and grabs her baby panicking when she realizes he’s not breathing. She runs to the kitchen and frantically calls 911. When the operator says to stay on the phone, she drops the phone but can still be heard forcibly placing her baby on a hard kitchen floor as she tried to revive him. Do you think that could have caused the baby’s fractured skull? The doctor to his credit thought carefully before answering and suddenly he wasn’t quite so sure of himself. And neither was the judge when the doctor finally admitted reluctantly that was possible.
The DSS attorney still wasn’t oveerly concerned because the burden of proof in a Family Court removal hearing is probable cause, not proof beyond a reasonable doubt like in a criminal case. She called the DSS case worker to testify. Her opinions were two-fold, first, based on the medical testimony, she had reason to believe the younger child died as a result of child abuse and, second, the active-duty father was unable to care for the older child by himself. When it was my turn to question the caseworker, I asked her where the older child lived for the first year and a half of his life. She admitted he lived with his grandparents, the father’s parents. And, when the baby was born, where were he and his mother living? Again, she admitted with the grandparents. And when the children moved here was the family covered by TriCare health insurance? Yes. Did they receive regular medical checkups? Yes. And did any of those checkups report any signs of child abuse ever having been suffered by either child? Er, no. And the reason you told me the grandparents couldn’t take custody of the boy again, was because DSS policy prohibits out of state placements without a full investigation, isn’t that right? Yes, that is correct. So, is it your testimony it would be in the child’s best interest to be traumatized further by being placed with strangers in foster care while DSS investigates to determine what it already knows to be true, that his willing and able grandparents can provide a safe home? No, er, yes, that’s that’s what the policy is. So, I asked, if the judge doesn’t find probable cause, and custody reverts back to his father, would DSS have any objection if he consented to his parents taking custody of his son? She said she didn’t know but the judge did and that’s exactly what he did.
Not only did I win the hearing, but, when the grandparents raised about half the amount of money the partner had quoted for a fee, they said they wanted to hire me for the murder case. While this created somewhat of a stir at the firm because associates aren’t supposed to run cases out from under partners, it was also a feather in my cap I probably wasn’t ready for. The senior partner in the firm decided I could represent the mother but only under supervision. The lawyer he assigned to help me was a very experienced medical malpractice and products liability litigator. With this being my first murder case, I was glad to have all the help I could get.
I wish I could write everything turned out with the jury finding the mother not guilty, she reunited with her family, and they all lived happily ever after but the practice of law rarely turns out like a fairy tale. More often, even on a good day, it turns out to be more of a tragedy. We didn’t have money to hire our own forensic medical witness, so I carefully constructed our defense around the doctor’s family court testimony it was possible the mother accidentally caused the skull fracture when she panicked. That is by definition reasonable doubt. And the trial was going well, with all the prosecution witnesses admitting there was no evidence of any abuse or neglect of either child before this incident. There was no confession, no eyewitness, and no physical evidence of abuse, and the DSS caseworker and police were relying solely on the doctor’s opinion as to the cause of death. The jury was receptive to my description of the families’ struggles, the mother having panicked when her baby stopped breathing, and they appeared visibly moved as they listened to the recording of the 911 call. All that was needed was the doctor’s admission it was possible the death was accidental. This is when the more experienced medical malpractice lawyer was supposed to step in and show me how it’s done.
And his cross examination of the doctor began masterfully. He was also in his mid-to-late forties, and every bit as distinguished looking as the doctor. His understanding of the medical terminology was so impressive before long the jury couldn’t distinguish who was the medical expert and who was the lawyer. But somewhere during the examination, the lawyer donned his medical malpractice hat and started sounding more as if he was accusing the doctor of causing the infant’s death. The more he pressed, the harder the doctor dug his heels in and the more absolute his opinions became. By the time he got to the critical question about the mother panicking, the doctor was adamant, no, that couldn’t explain the injuries he found. He could impeach the docter withbhis prior Family Court testimony but the problem was the jury liked the kindly doctor and didn’t appreciate the lawyer attacking him. I was demoralized thinking we’d lost the jury and the case.
Fortunately, all was not lost, and the mother made a very believable and sympathetic witness. Her testimony touched some of the juror’s hearts. They acquitted her of the murder by child abuse charge but convicted her of the lesser included offense of involuntary manslaughter, causing the death of another while engaged in conduct showing a reckless disregard for the safety of others, and the judge imposed the maximum sentence of five years. I was devastated but the lawyers in the firm celebrated the “Kid’s” first victory in a murder case. I took some solace learning the mother was eligible for parole after serving one-third of her sentence. I last heard from her when she was up for parole and she told me she’d was serving her sentence as a trustee doing housekeeping at the Governor’s mansion. She was granted vparole but never reunited with her husband or son.
They call it practicing law because you’re supposed to learn something from every trial. The lesson I learned from this trial was cross examination isn’t a blood sport. Never go after a witness aggressively unless you absolutely have to and can nail them dead to rights. Most witnesses want to do the right thing, even though they may sometimes get things wrong. Genty suggesting a witness has made a mistake can avoid alienating the jury and still leave the door open for the witness to make helpful admissions like the doctor did in the Family Court.
-
MOTION SICKNESS?
Having problems with motion sickness? Fight back with creative responsive motions of your own. Break the monotony, highlight absurdity, and reclaim the upper hand with levity. Always remember, Judges are human and, if you can get one to laugh, they’re less likely to rule against you.
Motion for a Very Far Away Change of Venue
Useful in responding to opposing counsel’s boring boilerplate discovery requests seeking useless information or when facing trial in a dead loser of a case. Trust me on this, most judges would prefer a Hawaiian vacation than your trial.
The Plaintiff, by his undersigned attorney, respectfully moves before the Presiding Judge for a very far away change of venue, preferably to the Island of Maui. This motion will be based on the grounds this case is dreadfully boring with a zero percent chance of getting any better. Since all parties are doomed to endure the inevitable trial, it would be vastly preferable to endure it someplace pleasurable. The island of Maui is renowned for its beauty, tropical fruit drinks, and relaxing atmosphere.
Motion to Substitute Client
Useful when you discover that, despite the gripping merits of your case, your client lacks any semblance of commendable qualities. That, no matter how hard you try to dress them up, they manage to remain an insurmountable obstacle to a favorable verdict.
The Plaintiff, by his undersigned attorney, respectfully moves before the Presiding Judge to substitute pretty much anybody, preferably a celebrity, for his client to prevent inevitable injustice. Counsel promises the testimony will remain unaltered. This case involves a middle-aged male permanently injured in a motor vehicle collision making George Cloney a perfect substitution.
Motion to Exclude Prejudicial Evidence
Limited motion useful to exclude prejudicial evidence when your case is rock solid except for a few pesky facts proving your client is a lying dirtbag. Rather than wasting time figuring out how to explain away the obvious during trial, move to exclude the offending evidence outright.
The Defendant, by his undersigned attorney, respectfully moves before the Presiding Judge to exclude the smoking gun covered with the Defendant’s fingerprints. The Defendant does not dispute that the smoking gun may have limited relevance to the issue whether the Defendant shot the alleged victim but would show such relevance is far outweighed by the devastating prejudicial effect the admission of the smoking gun would have on the Defendant’s otherwise brilliantly constructed defense.
Motion to Change the Facts
More drastic motion useful when nothing short of a wholesale change of the facts will save your client’s ass. Such drastic relief requires support by the most fundamental sounding principles of constitutional law, hornbook law, and Gilbert’s treatises.
The Petitioner, by his undersigned attorney, respectfully moves before the Presiding Judge for an Order permitting the Petitioner to change the facts in the interest of fundamental due process. Historical traditions traced back to ancient legal societies and Roman law have bestowed upon us the revered adversarial system of justice based upon the belief that two equally skilled advocates battling it out in a courtroom is the surest way to reveal the truth. Putting aside the questionable underpinnings of the adversarial system, it remains bedrock jurisprudence. Unfortunately, the facts in the present case are so one-sided as to be destructive to the balance claimed to be fostered by the system requires drastic judicial action to remedy the fundamental unfairness of forcing counsel to trial on the facts. Attached is an addendum of preferred facts proposed by the Petitioner to rebalance the scales of justice.
Now, let’s be serious, you’re unlikely to prevail on any of these motions but they can easily be saved on your computer and spit out when needed at little to no cost or effort, so what do you have you to lose aside from a possible Rule 11 sanction if the judge or opposing counsel lack a sense of humor.
-
BEGIN BY BEING A GOOD LISTENER
You hear it all the time, I’ve said it myself[1], being a good trial lawyer requires you to have the ability to craft a good story. But that’s a little like telling somebody how to build an airplane by telling them how to fly one. Let me suggest you begin becoming a good storyteller by first becoming a good listener.
I say this because I’m confident you’re never going to be William Shakespeare crafting words with form and meter into works of art. But, think about it, how do you think he came up with “ay there’s the rub…?” I looked it up and found scholars say in the 1600’s a rub was a flaw in the playing surface of a bocce game.[2] I can clearly picture in my mind the Bard overhearing someone, doubled over in his doublet with ruffs and cuffs showing, complaining about a rub in grass. It might even be true, who knows, not that it matters for our purposes. You don’t have to be the Bard, you just have to listen. [3] . Most importantly, you have to listen to your clients so you can tell their story in their own words.
Acetylene is an explosive hydro-carbon gas manufactured for use in welding and cutting torches.[4] My client was seriously injured when an acetylene tank he was cleaning exploded blowing him through the wall of the sheet metal building where he was working. Good thing the blast bent him over or the steel beam in the wall where he was standing would have decapitated him. Blew his clothes and burned every hair on his body off leaving him standing naked against the chain link fence on the other side of the wall. Now that’s one Hell of a story and the bestv part is I didn’t have to make one word of it up. I just had to listen to what my client said. And the beauty is your word thievery doesn’t have stop with your client. His wife’s saying what she missed most since his accident was not being able to exchange sweet nothings with her husband because of the ringing in his ears. Or his brother when asked if he was in much pain following the explosion saying, “He was in shaking kind of pain like a dog thought it was gonna die!” The hair on the back of the juror’s neck stood on end. I like to think of myself as a pretty good trial lawyer, but I couldn’t have come up with describing pain that way in a million years.
Not only aren’t you a Shakespeare, but you’re also not Steven Spielberg. Know even great directors listen for the unexpected turn of a phrase that catches the ear. Did you know, Humphrey Bogart’s ”here’s looking at you kid” in Casablanca was an ad lib? The director chose to keep the line in the film and won Best Director in 1944.[6] If you find yourself trying to tell a client what to say instead of listening to what they are saying, know you are well on your way to your witness testifying in a monotone voice that lacks any resonance of truth.
Now, sure, sometimes your witness may need some prodding to open up. Ask them open ended questions that don’t suggest answers[7] like what’s your biggest fear about testifying in Court? Can you tell me more about that? How did that feel? Don’t be surprised to discover some witnesses are just hopeless and don’t make the mistake of thinking you have the directorial where with all to make them stars. Look for an alternative.
Now that you’ve listened, don’t expect the story to tell itself. Someone, and that’s you, has to take the pieces of the story you gathered by listening and make them whole. Shuffle and reshuffle the pieces to find the right order. Practice telling it over and over to iron out the wrinkles. I once heard a very smart lawyer give a seminar on practicing telling your story with an Italian opera playing in the background to add rhythm. He added, you should feel free to substitute whatever music moves you. Now you’re crafting a story.
Always remember they call it practicing law for a reason. Like playing a musical instrument, you get better the more you practice. Never stop learning the art of trial advocacy.
[1] I randomly insert citations to make what I write appear more scholarly.
[2] Google. Who needs AI Chatbot to sound impressive?
[3] When I say listen, I include reading as well. Feel free to use the Bard whenever you can. Think people don’t read Shakespeare anymore? Just say, ‘First thing we do let’s kill all the lawyers …” and see the reactionb you get. Don’t limit yourself to the classics, free free to p-lagerize any poet, songwriter, famous lawyer, or TED talk personalities you admire
[4] Acetylene (systematic name: ethyne) is a chemical compound with the formula C 2H 2 and structure HC≡CH. Aren’t you impressed with my seemingly endless Google knowledge.?
[5] I’m on a Google role.
[6] His name was Michael Cortiz but I figured you wouldn’t recognize his name either.
[7] They’re called hearsay questions.
-
PSEUDO MUNCHAUSEN BY PROXY
Assistant Solicitor Debbie-Herring Lash
Judge Daniel E. Martin, Jr.
There is so little thanks for lawyers who take on the fight against child abuse, there must be a special place for them in heaven. Most lawyers shy away from the heartbreaking work because they know, no matter how good a job they do, families will be torn apart, and scars will be left the legal system cannot possibly heal. Thankfully, there are a few lawyers who become committed to the necessary work, both as advocates and judges. Two such lawyers I worked with over my career were Assistant Solicitor Debbie Herring Lash and Family Court Judge Danny E. Martin, Jr. I worked with them on a protracted murder by child abuse case that started out in the Court of General Sessions criminal court as a murder case and ending up as a removal action in the Family Court. Despite the charge of homicide by child abuse, both Ms, Herring-Lash and Judge Martin kept an open mind and treated everyone caught up in the tragedy with dignity and respect. I call this my Pseudo Munchhausen-by-Proxy murder case because of the pseudo-science offered to support the charge of murder at trial. Families were torn apart, and scars were left that will never heal left, but because of Ms. Herring-Lash and Judge Martin’s dedication, justice was finally done.
It happened twice. Her son, still a toddler, stopped breathing and turned a deathly shade of gray. Alone and unable to speak English, his mother dialed 911 and frantically ran to the neighbors to speak for her. Thankfully, both times, the toddler recovered before EMS arrived. The second time, however, EMS took the mother and child to the hospital where the mother thought they were trying to find out what was wrong with her son. But the suspicion of child abuse had been planted and what they were actually doing was watching the interaction between the mother and child to see if the mother was making the child sick to gain attention for herself, a rare medical diagnosis called Munchausen by Proxy.
Nothing untoward was observed during the hospitalization, except for the mother telling the nurses her son slipped her grip while she took him with her to the bathroom, stumbled, and hit his head on the tiled bathroom wall leaving a small red bruise requiring no treatment. Observing no other questionable conduct, the hospital discharged the mother and her son with a home heart monitor for him to wear. Whether the mother couldn’t figure out how to put the monitor on properly, or the toddler figured out how to wiggle out of it, or the monitor never worked properly to begin with, the monitor either showed a normal heart rhythm or complete gibberish. That’s when the unthinkable happened and the toddler died one night in his crib. An overzealous DSS case worker, determined to make up for not acting sooner, urged the police to file the homicide by child abuse charge. The detective went along and swore out the warrant naming the case worker as his sole source for probable cause. The terrified mother was arrested, I was retained by her family, and the case was assigned to Assistant Solicitor Debbie Herring-Lash.
The specter of the crime alleged was enough to cause a sky-high bail bond neither the mother nor her family could afford. Ms. Herring-Lash, who was head of the child protective services unit, had more active cases than any lawyer could be expected to handle, so it’s hardly surprising the mother languished in jail for a long time before the case came to Ms. Herring-Lash’s attention. Once it did, it didn’t take long for Ms. Herring-Lash to notice the complete lack of corroborating physical evidence supporting the charge, no broken bones, scars, bruises, or forensic signs of abuse or neglect. The cause of death listed on the autopsy report was asphyxiation, but Ms. Herring-Lash was familiar with crib death and wasn’t persuaded it was murder. When she read the file and saw the mother didn’t have any criminal record, no history of substance abuse or mental illness, and both the child and his older brother had been seen for regular medical check-ups and were always found to be in perfect health, she instructed her investigator to dig deeper into the case.
When interviewed by the investigatyor, the detective said he was relying on the DSS caseworker. The case worker, in turn, said she was relying on the toddler’s breathing problems only occurring when he was alone with his mother and no medical condition having been found to explain his symptoms. To the DSS worker’s way of thinking the absence of evidence proved it was Munchausen-by-Proxy. The investigator reported back to Ms. Herring-Lash and added neither the caseworker nor the detective had interviewed any member of the mother’s family because they didn’t speak Spanish.
She didn’t have to, but Ms. Herring-Lash called me as the mother’s attorney to ask if I objected to her interviewing my client’s family. Now a lot of lawyers would have refused fearing some ruse to gather evidence against their client, but I knew Ms. Herring-Lash from prior dealings and not only agreed but offered to bring the family down her office to be interviewed. Ms. Herring-Lash wisely said no, she’d rather interview them in their home. I knew she was right and agreed to set it up.
The mother’s family lived in an old trailer park in the Hannahan area. The outside of the trailer looked run down, but the father and son had completely renovated the inside. It was immaculate, comfortably furnished, and nicely decorated. The mother’s room had been left undisturbed while she was in custody and, although cramped with beds for the mother and her two children, it too was organized, neat and clean. The whole family gathered for the visit. None of them spoke English but anyone with eyes could tell immediately how honored they felt by the busy prosecutor visiting their home. Ms. Herring-Lash’s investigator translated when the grandmother spoke for the family thanking Ms. Herring-Lash for coming and welcoming her into their home. After formal introductions all around and a proud tour of the trailer by the grandfather, Ms. Herring-Lash sat down in the living room with the family and started asking questions about the toddler. When she asked if they had ever witnessed the child stop breathing like the mother described they all shook their heads and replied no. I was worried by their response but Ms. Herring-Lash was experienced and asked a follow-up question, had they ever witnessed the toddler having any breathing problems at all? The family all started talking at once. The grandfather said he thought the boy had asthma. The grandmother thought he got overexcited and hyperventilated. An uncle who had done a lot of renovations on the trailer thought he might be allergic to the mold that permeated the old trailer. They all agreed he was allergic to something but couldn’t agree on what. Ms. Herring-Lash asked one final question, had the boy experienced any of his attacks when his mother wasn’t around. An aunt said she remembered he once had an attack when all the children were watching tv while the mother was out and everyone nodded their heads in agreement.
Ms. Herring-Lash spent a good hour in the family’s home. She’d seen and heard enough, thanked the family for meeting with her, and left with her investigator. I remained behind and told the family I didn’t know what she would do but felt good about the meeting. What she did was to dismiss the Murder by Child Abuse charge outright later that afternoon. The mother was released from the county jail that evening. I can’t say I did much more than believe in my client’s innocence in getting the charge dismissed and gladly give credit to Ms. Herring-Lash. I can say, however, I have had very few clients in my career who were ever so thankful. Ms. Herring-Lash is well known for her success in prosecuting child abuse offenders. She deserves to as well known for protecting innocents caught up in the system. Unfortunately, it wasn’t long after her release, we learned the mother’s ordeal was far from over.
The DSS caseworker was incensed the criminal charge had been dismissed without her agreement and brought a removal action on the theory the mother killing her younger son meant there was a risk of harm to his older brother. At the initial hearing DSS was willing to allow the child to remain in the mother’s home only on condition the mother was never left alone with the child and agreed to attend and successfully complete child abuse counseling. I knew from experience such a plea would leave my Spanish speaking mother at the whim of a therapist handpicked by DSS. She’d ultimately be caught in a catch 22; in order to successfully complete counseling, she’d have to admit killing her son which she adamantly denied. We agreed to mother and child would not be left alone to avoid temporary removal but rejected the plea and requested a trial. The temporary hearing judge accepted my alternative proposal and ordered the case to be placed on the trial docket.
The trial finally came to be heard before the Honorable Danny E. Martin, Jr., who I had never appeared before but, had practiced with his father, Daniel E. Martin, Sr., both when he was a Deputy Solicitor and later when he became a Circuit Court Judge. I figured if Judge Martin was anything like his father, my client would get a fair trial. My client wasn’t just unable to speak English; she was emotional being both Hispanic and a mother afraid of losing her remaining child in a legal system she neither understood nor trusted. The greatest lawyer that ever lived couldn’t have explained the reasons to her why this legal nightmare was back in court for trial. All I had was her trust in me as her lawyer until we appeared before Judge Martin. I don’t know if he sensed her apprehension or it was just his judicial temperament, but he took his time explaining the proceedings through an interpreter and that helped calm my client.
The Department of Social Services sent an attorney all the way from headquarters in Columbia to prosecute the case. The first thing he did was try to impress the judge saying the case had special importance to the South Carolina Department of Social Services because it involved Munchausen-by-Proxy. Judge Martin quickly disposed of any notion the lawyer may have had he would treat the case any different than any other. The DSS lawyer thought he’d lead off with his big gun, a Munchausen-by-Proxy expert whose rather threadbare credentials he laid out before offering her as an expert witness in the field of psychology. Many young lawyers have forgotten, when an opponent offers an expert, you can request to vior dire the expert about their qualifications before the judge admits their opinion testimony. Being able to raise doubts about expert’s qualifications before they testify is a valuable tool in a litigator’s toolbox. Apparently our expert wasn’t aware of the rule and, as I began my questioning, she avoided my questions and puffed herself up repeating her testimony about having a psychology degree from an Atlanta university. I wasn’t familiar with her university, so I looked it up. I asked her if her university was located on the third floor of an office building located off the interstate? She bristled when I produced copies of the school’s webpage, but reluctantly admitted the students took classes online. To fight back against my suggestion the school was less than accredited, she shot back that, in addition to her degree, she was licensed by the State of Georgia. I thanked her for her non-responsive answer but then forced her to admit she was only a licensed clinical psychologist, not a licensed psychologist allowed to administer psychological tests or assess psychological illnesses under Georgia law. She started squirming and lost eye contact with the DSS lawyer when I said I’d reviewed the school’s curriculum and hadn’t found any courses on Munchausen-By-Proxy. True to form, she chose not to answer my question and launched into a diatribe on how the basic knowledge she received from her university psychology classes qualified her to address the issue. Which only made it worse when she then admitted no such courses were offered. So, I asked, “Where did you get the education and training to qualify you as an expert in Munchausen-By-Proxy?” She replied smugly, “I attended a seminar on the topic and chose to focus my career on helping children affected by the disorder.” Upon objection, I withdrew my final question, “So you appointed yourself an expert in the field?” I concluded my vior dire and could see Judge Martin was concerned but, the legal bar for qualifying an expert being so low, he qualified her while reserving his right to rule on the admissibility of her opinions when she offered them. It wasn’t the ruling I’d hoped for, but I knew the damage to her credibility had been done.
The problem with sending a DSS lawyer from department headquarters to try a case is they’re probably a desk jockey and not a litigator. I just sat back and watched as the DSS lawyer fumbled his case. I don’t think he knew what a leading question was because, he asked so many of them, I gave up objecting, The reason I stopped objecting was because he wasn’t having any more luck getting the so-called expert witness to answer his questions than I had. She thought she could just give practiced textbook sounding answers to whatever questions she was asked much to the DSS lawyer and Judge Martin’s dismay. The DSS lawyer finally gave up out of frustration. Since I’ve danced with recalcitrant expert witnesses before, I kept my cross examination short and to the point. Her opinions set forth in her written report were based on facts provided by the case worker that had been investigated and rejected by the solicitor. In the end, when she wouldn’t concede, if her facts were wrong, then her opinions were probably wrong too, I knew I was done with her and so was Judge Martin.
The harder witness for me by far was the doctor from the Medical University of South Carolina who testified next for DSS. I accepted her qualifications as an expert without hesitation. Young lawyers too often think cross examination is a blood sport and don’t understand not all opposing witnesses are incompetent, uncaring liars. A lawyer should always ask themselves what the witnesses’ motive is for giving their testimony. The good doctor from the Med U was a highly skilled, intelligent, and caring physician. Her motive was solely a desire to prevent children from being abused or neglected in any form. She appreciated my acknowledging that fact in my opening cross examination. I stopped being a black hearted criminal defense attorney in her mind and she became much more willing to truthfully answer my direct questions. Like admitting she had no training or experience diagnosing or treating Munchausen-By-Proxy. She sheepishly admitted she was relying on the discredited Munchausen-By-Proxy expert for that opinion. She readily admitted doctors involved in child abuse purposefully cast a wide net to protect children but understood a judge’s job is more confined than that, as it should be. She tossed the causation issue right back into the lap of the so-called expert. I thought the good doctor was going to shake my hand on the way out of the courtroom.
The DSS lawyer didn’t understand the case was over already and his calling the case worker just made things go from bad to worse when I questioned her about how much money DSS had spent for the pseudo-Munchausen-By-Proxy expert’s testimony. Her hourly rate, even for driving time, her hotel room and expenses, added up to nothing short of outrageous. I noticed the detective who swore out the warrant had been waiting outside the courtroom to testify but was never called. Normally, a judge will take a case under advisement before issuing a decision, but Judge Martin had heard enough and dismissed the case from the bench finally ending my client’s nightmare.
I am often surprised when people comment on my trial stories wanting to know what happened to the people who caused so much hurt to my client. I explain that’s not my job, my job is help extricate my client from the nightmare. Those same people may wonder why I would praise Ms. Herring Lash and Judge Martin for doing their jobs. I praise them because their job is so hard and so often gut wrenching. So much so, too often judges, prosecutors, and others involved in the system can get jaundiced toward anybody charged with child abuse. I praise them because they didn’t let the murder charge prejudice them against my client and kept an open mind. It took a long time, and left deep scars, but both Assistant Solicitor Debbie Herring-Lash and Judge Daniel E. Martin, Jr. helped me do my job and helped free an innocent mother from being unjustly punished for a crime she did not commit.
-
ALWAYS FOUND TIME TO DO THE RIGHT THING
Judge Judy Cone Bridges
Our Judge Judy was famous long before television’s Judge Judy was. She was famous for treating everyone with respect and dignity while performing her difficult but crucial job as a Family Court judge. Adoptions brought her the most joy as a judge and I brought her one that showed how she always found time to do the right thing.
We must have graduated law school about the same time as she was always a part of my career. I remember her being the first of our age group to bring her baby to a beach party my partner threw. She was first of our age group to be elected to be a judge, a Family Court judge. Some judges don the black robe and think its their job to play the grumpy law professor proving they’re smarter than everybody else, but not our Judge Judy. She believed it was her job to serve everyone who appeared before her; lawyers, clients, caseworkers, and witnesses alike.
I developed a relationship with a Petty Officer on a nuclear submarine stationed in Charleston who referred cases to me. Usually he referred seaman who needed representation but, this time, he referred me the wife of his submarine’s Captain. She had volunteered to be a foster parent for a deaf and blind female infant she never thought she would fall in love with her, but fall in love she did. And now she was terrified when her husband received orders to report to Naval Base Kitsap on the west coast in forty-five days, ten of which had already expired by the time she was referred to me. My legal secretary would often joke when people called asking if I was free by saying, “no but he’s reasonable.” Molly was wrong, for this deserving and desparate mother, I was free and I knew right where to turn to help her. I walked straight over to the Family Court and asked if I could see Judge Bridges in chambers.
If everything goes smoothly it normally takes a minimum of nine months for an adoption to work its way through the system, but things rarely go smoothly. You have to draft a petition alleging consent or statutory grounds to terminate the rights of the natural parents, serve it on everybody, and wait thirty days to see if anybody files a return objecting to the adoption. You have to have a Guardian ad Litem appointed to protect the rights of the infant. The Department of Social Services has to do a home study and file a report finding your client are fit and proper persons to adopt the child. If anyone does object, the adoption goes on the contested docket and it can take a year or more get a hearing. When I told Judge Judy what about my new client terrified of losing her precious baby, she never said she’d help, she never hesitated, she just got right to work making a miracle happen.
She picked up the phone and got the DSS Supervisor on the phone. The supervisor was familiar with the case and eager to help. The supervisor explained the parental rights of the infant’s mother and father had already been terminated and DSS had sole custody of the baby which would certainly help speed things up. She would accept service of an adoption petition and have the DSS attorney file a return to the Petition within twenty-four hours. Judge Bridges asked how long it would take to do a home study, but the supervisor said she wasn’t sure. When the supervisor offered to find out, Judge Bridges asked for the name of the caseworker who did home studies and said she’d call herself. She buzzed for her secretary to bring her calendar into her office and to get the home study caseworker on the phone.
I spent the few minutes we had waiting to describe the indescribable bond I observed between my client and the child. Indescribable in words because they had what appeared to be a unique tactile way of communicating. You could almost see them talking to each other by the way the mother cradled the baby and the way the baby squirmed in her arms. Judge Bridges’s face lit up with a great big smile as I described what I’d seen.
About that time, her phone rang, and it was the home study caseworker. She said she was backlogged more than four months, but, when, Judge Bridges explained the situation, the caseworker readily agreed to do the study on her own time. By that time, the secretary came into chambers with the judge’s calendar and was saying she was booked up through the end of the next month. She also reminded Judge Bridges everybody was waiting in the courtroom for her ten o’clock hearing, fifteen minutes ago. Tell them I’ll be right there she said to her secretary and turned to me saying, don’t worry, I’ll have a cancelation, I just know it, if not, I’ll schedule your adoption for eight o’clock one morning if that’s what it takes. I’d taken up too much of her time before she said she had to run, I had to get to work drafting and filing the adoption petition to get the ball rolling, and she’d take care of the rest.
I had the petition filed and hand delivered that afternoon. True to her word the supervisor accepted service and her lawyer filed an answer consenting to the adoption the very next day. I called my client to tell her about the home study and she said she’d already spoken with the case worker who was coming over that weekend. The following Monday a report was recieved finding the mother and her Naval captain husband were fit and proper parents and it would be in the infant’s best interest for the adoption to be granted.
As a lawyer I often felt there was a Higher Hand guiding things and this was one of those times. As fate would have it, Judge Bridges called saying one of her contested cases had settled opening a time slot on her calendar. She asked if I could I have my clients in her courtroom ten o’clock Thursday. I told her, since she’d done the impossible, the least I could do is have my clients there. Word spread what we were doing, and Judge Bridges’ courtroom was packed when the time of the hearing came around. In addition to myself, there was the mother clutching her baby seated next to her husband in his dress whites, the DSS supervisor, foster care caseworker, and home study caseworker, the Guardian ad Litem, the court reporter, sheriff’s security officer, court clerk, and even the judge’s secretary all crammed into her small courtroom.
Judge Bridges called the case and, not waiting on me, began calling witnesses herself, one by one putting their glowing testimony and consent to the adoption on the record. She entered the home study and Guardian ad Litem’s written reports into the record without objection. Her smile grew as she got closer and closer to calling the mother to the witness stand. When the time came, she invited her to bring her peacefully sleeping infant with her. There was no legalese in her questions to the mother, just one mother speaking to another in the universal language of mothers . The mother’s description of falling in love with her little girl brought actual tears to people’s eyes, even the hardened Sheriff’s deputy. Judge Bridges asked how she’d manage the infant with her husband’ away on deployments and the mother said the same way she already had with the support of her husband, her Navy family, and the amazing benefits his being an officer in the U.S. Navy provided. Then it came time for the husband. He testified how distraught his wife had been thinking she could lose their precious baby girl and how grateful his wife and he were for everything everyone had done to make this adoption possible.
In accordance with the time-honored maxim of trial advocacy, si fractum non est, non figere, if it ain’t broke, don’t fix it, I had nothing to add when asked and finally it was Judge Bridges turn to talk. She found the adoption was in the child’s best interest and thanked us, with heart felt sincerity, for making it possible for her to approve the adoption in world record time. She acknowledged it took all of us, working together, to pull off a miracle finding a permanent home for a very special child. Everybody in the courtroom that day felt God’s hand at work and felt pround of their part in it. There’s an old Jewish saying, God made mothers so he wouldn’t have to be everywhere all the time. He, we, all of us together made this remarkable, giving, and loving mother the happiest mother ever to walk out of a Family Court courtroom.
I freely admit my trial skills had very little to do with the outcome of this case. It certainly wasn’t my legal research skills, nor my elequence, that won the case. It was my knowing who and where to turn for help. I turned to Judge Bridges who made the impossible possible for a very deserving client by completing an adoption in less than 30 days before her husband shipped out of Charleston. I’ll take credit, even if just for being smart enough to know who to turn to for help.
-
Practicing Being Indignant
Senator T. Allen Legare
I first met Bobby Howe on the second day of the South Carolina bar exam in 1975. The tension in the air was palpable during the mid-day break when Bobby, a complete stranger, ran up to me and said, “If only I knew the difference between a garageman’s lien and a modis operandi, I’d have this bar exam licked.” I busted up laughing and we became instant friends. Little did I know then Bobby would later become the only client I ever had to be featured in The National Enquirer magazine. When Bobby once introduced me to Judge Ralph King Anderson as his lawyer, the Judge replied in an ominous voice, “that must be a gargantuan task.” And it certainly was but thankfully, I didn’t have to do iot alone. Bobby’s father, Gedney M. Howe, Sr., asked his dear friend and fellow lawyer, Senator T. Allen Legare, to watch out for Bobby after he was gone and I couldn’t have asked for a better co-counsel.
T. Allen Legare was always a fighter. He won the Southern Conference Boxing Championship in 1939. During World War II he parachuted behind enemy lines to blow up bridges and train tracks with the French resistance. I once asked how he could fool Germans with his heavy Charleston accent and he seriously replied, “There wasn’t any talking to Germans, we killed any of them unlucky enough to cross our path.” He graduated from USC Law School in 1941 and was a fixture on Broad Street for 69 years. He was Charleston’s State Senator and was instrumental in creating the South Carolina Port Authority making Charleston one of the main east coast ports. Even on the hottest days, young Broad Street lawyers knew better than to be caught by Senator Legare not wearing a tie and jacket on the street. He was the epitome of a Broad Street lawyer perfectly melding politics and the law.
One day, walking to the courthouse I ran into him with one hand on top of a parking meter and the other flailing furiously in the air. I asked, “Senator, are you okay?” He smiled and said he was on his way to a court hearing and was practicing being indignant. Semi-retired when I first worked with him, he would still come into his law office every day to read South Carolina’s major newspapers and answer correspondence. He fittingly lived below Broad in a beautifully renovated home on Legare Street and threw a yearly Frogmore Stew party for lawyers and judges on his Wadmalaw Island plantation. I never dreamed I’d get to work with him, but I did in two high profile cases both involving Bobby Howe.
The first case, my only case that made it into the National Enquirer, occurred when Bobby was caught digging up the backyard of an arrested Hilton Head Island drug smuggler looking for a 120-quart fishing cooler full of cash. Bobby had asked the prosecuting U.S Attorney if his client could receive a downward departure under the Federal Sentencing Guidelines for turning in a huge sum of money (presumably the contents of the cooler less Bobby’s fee) and had been told he could before Bobby set foot on the client’s property. The problem was the property had been seized by the Federal government as the fruit of the client’s lucrative smuggling business. When Bobby’s face appeared on the evening news and in the newspapers, Senator Legare reached out to me to offer his help.
I told Senator Legare I had Bobby checked into an out of state rehabilitation facility and he offered to persuade his friend, United States District Court Judge Sol Blatt, who also boxed for USC in the Southern Conference, to continue the case until Bobby could finish treatment. But nothing was ever easy about representing Bobby, and he stumbled over the first step of the facility’s twelve-step rehabilitation program. Instead of admitting his helplessness to overcome his addiction, Bobby told his counselor he was just hiding out until the heat died down back home in Charleston. Apparently this was deemed disruptive and the director of the facility was threatening to toss Bobby out of the program. I dreaded having to tell Senator Legare and, when I did, I thought the phone lines would melt between our offices. I was instructed in no uncertain terms I was to keep Bobby in the treatment facility. It was a test I needed to pass to earn Senator Legare’s respect and, believe me, it took everything I had to convince the director to at least give Bobby a mental health examination before discharging him. Thankfully, Bobby scored so far off the charts for a bi-polar disorder, he was transferred from the Addictive Disease to the Mental Health unit.
I thought the problem keeping Bobby in the facility had been solved but they were just the beginning. The first morning in his new unit, Bobby cracked to his new group, “Yesterday I was across the hall in addictive diseases, today I’m over here with you guys in mental health. I feel like I’m getting better already.” Apparently, getting laughs in group therapy is also considered disruptive. So is getting caught having sex with another inmate in the storage closet, getting caught unaccompanied in restricted areas, and also finagling a prized eggshell mattress cover from an orderly. They don’t teach classes in law school on how to keep crazy clients in rehab so you just have wing it. Fortunately, Bobby made friends with his psychiatrist and together his psychiatrist and I kept Bobby in the program. Loaded up with enough psychotropic medications to choke a horse, Bobby was finally discharged to face the music before Judge Blatt.
Judge Blatt was one of the finest jurists it was ever my privilege to appear before, but he was strict, especially in drug cases. Fortunately, he was also fond of Bobby who practiced law by a different set of rules. One of which was, if you can get the judge to laugh, he can’t send your client to jail. Most of what judges do everyday is anything but fun and a good laugh is always a welcome distraction. Bobby sure knew how to make Judge Blatt laugh but I doubted it was going to enough to save him from Judge Blatt’s wrath. Fortunately, as fond of Bobby as the judge was, he truly loved and respected Senator Legare. You could see the anguish on Judge Blatt’s face when Bobby appeared before him represented by Senator Legare.
The practice of law and politics was always personal to Senator Legare. A man’s word and loyalty to his friends meant everything to him. Before Senator Legare started speaking at Bobby’s guilty plea, I was felt certain Judge Blatt had made up his mind he needed to make an example out of Bobby. Senator Legare began, not with what Bobby had done, but at the bedside of Bobby’s father, Gedney M. Howe, Sr., also a renown Broad Street lawyer and also a dear friend of Judge Blatt. Senator Legare choked up with emotion describing how Big G on his deathbed grabbed his hand and made him swear he would look out for Bobby after he was gone. His vow to their mutual friend cut straight through to the judge’s heart while at the same time put the judge in an impossible position. Not one to ever do that to a friend, Senator Legare, seamlessly switched and began giving Judge Blatt a graceful way out. Senator Legare pointed out Bobby never found the cooler and never took anything, never lied about or tried to conceal what he’d done, and, misguided as it may have been, thought he was helping his client get a downward departure. More rthan that, Bobby had accepted responsibility and sought needed help by voluntarily entering a treatment program where he was diagnosed as being bi-polar and given needed medication. Judge Blatt couldn’t help but see the flashing yellow arrow to the exit ramp Senator Legare plowed for him and readily headed in that direction. So, he’s been discharged from the hospital? Yes, sir, he has but he remains under active medical treatment and supervision. And I can make it a condition of any sentence I might impose that he’ll continue such treatment and monitoring to make sure he continues to get help? Yes, sir, absolutely and your Honor knows I will continue to honor his father’s dying wish. Judge Blatt’s sentence of two years’ probation, with continued treatment and medication, but no referral for disciplinary action, was more than either Senator Legare or I could have hoped for.
A great result but it turned out keeping Bobby on probation wasn’t any easier than keeping him in the rehabilitation facility and it wasn’t long before Bobby got himself embroiled in another newsworthy spectacle. A young female law clerk working for Bobby’s brother alleged Bobby and a Circuit Court Judge Bobby’s brother wanted removed from the bench offered her cocaine in the bathroom at a party hosted by the Deputy Solicitor. Bobby flatly denied the allegation quipping, “I may be crazy, but I’m not stupid.” The Senate Judiciary Committee decided it needed to hold a hearings and issued a subpoena for Bobby’s appearance. While I advised Bobby needed to bide his time in an unknown location, I reached out to Senator Legare for his help a second time.
I delicately explained to Senator Legare Bobby there was no truth to this young lady’s allegation, but I was reluctant to open Bobby up to questioning under oath by the committee. Senator Legare asked how I proposed we allow Bobby to testify but limit the questions he could be asked? I explained Bobby would answer any question about the alleged incident without limitation, but asking him questions about other, unrelated matters would invade Bobby’s right to privacy, jeopardize his probation, and possibly affect his ability to continue to practice law. The argument was about as nuanced as a legal argument can be but Senator Legare, even in his mid-eighties, had a sharp legal mind. He loved our lengthly conversation about the right of privacy not being included in the Constitution’s Bill of Rights but being recognized by Justice William O. Douglas as being necessarily implied by the penumbra of the rights expressly guaranteed.
With Bobby in the back seat, I picked up Senator Legare and we set off driving to Columbia to meet with Senator Smith, Chairman of the Judiciary Committee. As good a lawyer as I might fancy myself to be, I fully acknowledge I never would have gotten a meeting with Senator Smith if it wasn’t for Senator Legare. We were greeted by Senator Smith like long lost friends which I sure the senators were. They exchanged handshakes and pleasantries before Senator Smith sat behind his desk and asked what he could for Senator Legare. Senator Legare got right to the point and got the same response from Senator Smith that I got from him when I suggested Bobby’s sworn testimonby could be restricted. Senator Smith asked skeptically, “Now Allen just how am I supposed to do that?” Senator Legare launched into such an impassioned argument for the right of privacy you’d have thought he’d discovered the right all by himself. Still Senator Smith was non-committal and said he’d have to speak with the other committee members. Senator Legare got up abruptly and turned to leave but stopped, turned back to the senator and barked, “If your brother was still alive, we wouldn’t even be having this conversation.” I have no idea what Senator Legare was referring to, but I could see it made a deep impression on the senator.
Still not knowing whether to risk allowing Bobby to testify, we decided to wait and see how things developed in the hearing. Senator Smith was the last to enter the chamber and take his seat. He began the hearing with an admonition to the other committee members he was not going to allow the hearing to become a circus and was going to limit all questioning strictly to the matters at hand to preserve the witnesses’ rights of privacy. Senator Legare nodded all would be okay and Bobby was sworn in as a witness. Bobby absolutely, unequivocally, and in no uncertain terms denied the allegation. In true Bobby fashion in no time he had the committee members laughing about the absurdity of thinking a sitting circuit court judge would be snorting cocaine with some unknown girl in the Deputy Solicitor’s bathroom.
Too many lawyers get to thinking too much of themselves. That only they can win a case. When I think back over my career, I think of all the great lawyers it has been my privilege to work and try cases with. Lawyers who helped me win way more cases then I ever would have won on my own. T. Allen Legare was one of the finest lawyers I have ever known and worked with. The epitome of a true southern gentleman. He honored a commitment he made to Bobby’s father and helped me win two high profile cases I couldn’t have won without him. All he ever asked in return was my respect, loyalty, and friendship all of which were gladly given.
-
My Della
Molly Pratt
Some law firms and lawyers treat their staff like automatons expected to do only what they’re told. The truth is, every great lawyer I have ever known, without fail, has had a dedicated assistant working, not for, but with them. Molly was mine, she was Della to my Perry. A lawyer I admired very much, Coming Ball Gibbs, referred her to me when he heard I was looking for a new legal secretary. Years later he confided, however, when I thought I was interviewing Molly for the job, she was actually interviewing me. Luckily, I passed muster and got the job. We worked together for so many years I’ve lost count, twenty-eight I think. Over those years she became so much more than just my legal secretary, she became my administrative assistant, paralegal, office manager, co-counsel, editor, accountant, therapist, confidant, life coach, and, most importantly, my friend. Our lives became so entangled, there is simply no way to separate my career from our career together.
So much so trying to pick a story to illustrate what she meant to me and my practice was almost impossible but I think the story of the arson case she solved for me comes closest. Although it was never part of Molly’s job description to review the evidence in my cases, she made up her own job description and did pretty much whatever she thought needed doing . I soon got used to it and learned to appreciate how her keen eyes often saw things that slipped my attention.
I was hired to defend a guy accused of burning his own house down for the insurance money. A racial slur that had been spray painted on the house before the fire motivated SLED to get involved. The problem was SLED focused more on my client starting the fire than it being racially motivated. SLED appointed a team of forensic arson investigators under the command of the seasoned Special Agent in charge of the arson squad. And they were thorough, so thorough they buried me under a mountain of evidence the week before trial that the Special Agent argued proved my client’s guilt beyond a reasonable doubt.
It wasn’t hard to get the gist of SLED’s case against my client from the official report of its investigation. The racial slur was a ruse to conceal the real motive for the fire, good old fashioned greed. Chemical testing and analysis proved the gasoline fueled fire was deliberate. The owner’s gas can, covered in his, and only his, fingerprints, left in the interior hallway after it was doused with gas and ignited had miraculously survived the flames. But the evidence tying my client to the fire was circumstantial and allegedly contained in the mountain of evidence SLED dumped on me. There were banker boxes filled with business and bank records allegedly showing my client’s industrial maintenance company was heavily in debt and going bankrupt. Hundreds of photographs of the burnt-out house allegedly showing that valuable property had been removed from the house before the fire. And there were was a file of indecipherable cell phone tower data for the tower near the house off which my client’s cell phone pinged during the fire contradicting his statement he wasn’t there.
It really didn’t help that my client had ready answers for almost everything. The property was located out in the country a good ways north of the Santee Cooper Lakes in the Francis Marion National Forrest. My client and his wife planned to live out there full time, with my client commuting to work and his wife pursuing her passion for breeding dogs, but they were still renovating the house and hadn’t fully moved in yet explaining the relatively empty closets and dresser drawers. Although my client couldn’t recall any overt racial threats, he was more than willing to talk about how he felt unwelcome in the otherwise white community. He admitted his business was having difficulties but claimed that was nothing new, it had happened before, and all it would take was one good contract to get back on his feet again like he’d done many times in the past. But the problem from a lawyer’s perspective is having to explain too many things away in a courtroom itself raises suspicions in jurors’ minds, suspicions a skilled adversary can easily exploit. And, like I said, he had excuses for almost everything but not everything. Like why his cell phone pinged off the cell tower near the burning house. The only good news, as I saw it, was the last-minute evidence dump suggested the Special Agent was trying to hide something and all I’d have to do is methodically go through the entire mountain evidence piece by piece until I found the needle in the haystack. Fortunately, Molly offered to help review, organize, and label all the photographs.
Something that endeared Molly to me and everybody who knew her was the way, when she heard a good joke, was surprised by someone or something, or really if anything tickled her in just the right way, she’d let out an unmistakable snort. It sometimes took people by surprise the first time they heard it, but Molly’s good-natured acceptance of her own foible quickly put everyone to ease. That’s what I heard when she was going over the photographs, that unmistakable snort from her desk, and I knew instantly she’d found something.
I waited and soon enough she stuck her head in my office to ask if I had a moment. Of course, I told her, and she entered handing me a photograph with a look of pride on her face. I looked at the photo but only saw a pair of slightly singed women’s high heeled shoes. I must have had a quizzical look on my face because she let out an exasperated sigh, and said, “Oh, my dear boy, those are not just any old high heeled shoes, those are Manolo Blahnik high heeled shoes.” She waited for the light to go off and, when it didn’t, she explained the significance of the shoes to me.
“You know how the SLED investigator said valuables had been removed from the house before the fire? Well, he’s full of shit,” Molly said bluntly. “If you’d watched the TV show, Sex in the City, you’d know those are Manolo Blahnik high heeled shoes that retail for nothing less than a grand. No woman, and I mean no woman,”Molly emphasized, “would ever leave a pair of Manolo Blahnik high heeled shoes in her closet to be burnt up in a fire.”
The light did go off and I immediately saw how the photograph would make it seem on cross examination like SLED’s Special Agent must have ridden the short bus to agent school but that lawyer in me also knew the prosecutor could easily suggest my client, who was accused of the arson, who was every bit as ignorant about his wife’s shoes as I was, who left the shoes. Fortunately, like I said, Molly and I worked together, the operative word being worked, and we got to it.
Molly was on to something and so we both dug in. If the Special Agent could make such a glaring mistake about thousand-dollar shoes, what other mistakes had he made? We went back over the photographs one by one and soon discovered item after item of valuable property that had been left behind in the fire. Molly quipped almost under her breath how hard it was to pick things out of SLED’s photographs the burned-out wreckage and mentioned how helpful it would be if we had some photographs of the house before the fire. I asked the client, and his wife remembered they’d spent Christmas about a month before the fire at the house and she had an undeveloped roll of film that had been taken Christmas morning.
Armed with the new photographs, we could trace everything shown in the Christmas morning photographs to the rubble on the floor shown in SLED’s photographs taken after the fire. Large, flat screen tv, shown hanging on the living room wall Christmas morning? Still right there all burnt up in the blackened debris on the floor. We hadn’t found a smoking gun proving my client’s innocence, but we’d found the death by a thousand cuts of the prosecutor’s case. Remember what I said about having too many explanations being the kiss of death? It applies to prosecution witnesses too. After the Special Agent tried but failed, again and again, to explain away the obvious truth, he was forced to admit his expert opinion valuable property had been removed before the fire was, well, as Molly put it, full of shit.
But what about that pinging cell phone data? The prosecutor saved the cell phone technician for his last witness, thinking he’d finish strong but, by the time he called the technician it was too late. The young technician lacked the Special Agent’s experience giving canned testimony and readily admitted how much he didn’t know. Like exactly how far did the signal of the oversized tower in National Forrest near the house actually reach? “I don’t know” answers to carefully worded questions are the stuff reasonable doubt is made of, and the technician was glad to oblige. In the end nobody, not even the technician, knew why my client’s phone pinged off the tower.
Having made my defense through the prosecution’s witnesses, I elected not to call any witnesses and thereby secured the last argument. I saved my best argument, the one Molly gave me, til final argument. It is always a good idea to tell the jury whenever somebody gives you a good jury argument. I’ve always found a little humility goes a long way in the courtroom. So, I gave Molly the credit she was due. “Now, I admit I know next to nothing about women’s high heeled shoes, but thank God, my secretary Molly does. She’s apparently not only an expert on women’s high heel shoes but on the TV show called Sex in the City. She says she watched every episode and knew right off the shoes shown in the Special Agent’s photographs of the defendant’s master bedroom closet were Manolo Blahnik. She knew because they were featured on the show as a recurring theme episode after episode. She tells me they retail for upwards of one thousand dollars. No wonder Molly says no woman in their right mind would ever leave a pair of Manolo Blahnik high heeled shoes behind in a house fire,” I entoned in my and the final argument knowing the proseutor wouldn’t have a chance to respond. I knew I had a not guilty verdict when every woman on the jury nodded in agreement.
But this isn’t a story about an arson case or a trial victory Molly won for me, it’s a story about how important my relationship with Molly was to me and my practice. She not only lifted me up being my biggest cheerleader, but she was also the anchor that tethered me to the ground. Her intelligence and wit were as much a part of my success as my own. And, to top it off, her good nature made practicing law fun. The point of this story is, if I only expected my staff to do what I told them to do, I’d have missed out on everything Molly offered to take my practice to the next level.
Next time, instead of asking your staff for a cup of coffee, ask them to sit down and drink a cup with you, ask how they’re doing, for their opinions about the work you’re doing, and how they can help. You may find your practice excelling when your staff starts working with, not for, you.
-
ZE ZE ZELLAZORROW
Lawyers like to brag about their criminal not guilty or personal injury million-dollar verdicts but sometimes satisfaction practicing law comes from handling seemingly ordinary matters. It fell to me as the youngest associate in the firm to handle a request for a name change made by a senior partner’s client about to receive a large PI settlement. He wanted to change his name from Rochester Pressley to Ze Ze Zellazorro to better reflect his Puerto Rican heritage. Never having done a name change, all I had to figure out how to do one and, fortunately, it turned out to be pretty straight forward. All I had to do was just draft a petition to the then County Court, attach an affidavit the client had no criminal convictions, bankruptcies, or outstanding judgments, wasn’t seeking to avoid creditors, publish a notice in the local paper, and draft a proposed order for the judge to sign. Piece of cake, or so I thought. The case was assigned to the Honorable Lester Legare Bates of the Richland County Court usually a most friendly judge. It turned out, however, Judge Bates had trouble wraping his brain around the name Ze Ze Zellazorro or anyone wanting to better reflect their Puerto Rican heritage.
I was anticipating just a routine hearing. Hearings like this were conducted informally in the judge’s chambers and always began with Judge Bates asking, “What can I do for you, my boy?” I sensed something was amiss when I didn’t get a “my boy” at the beginning of the hearing. And things went downhill from there. To put it simply the judge felt I was wasting his time. He began to pick apart my petition. “How do you know your client doesn’t have any criminal record?” “Well, your Honor,’ I stammered, “He said he didn’t have one and his SLED record check came back clean.” A muffled harumph was all that got me from the judger. “What is the meaning of this ‘Ze Ze Zellazorro,’” the judge growled, “Is it some stage name he wants to use?” “No, your Honor, his parents migrated to the United States from Puerto Rico back in the 1960”s and his father changed their name to Pressley to better fit in. My client simply wants to go back to his family’s original name, Zellazorro.” Apparently not satisfied, the judge asked his clerk, Mr. Chitwood, to swear my client in and began questioning him in a gruff and demeaning manner.
Things got testy when the judge indicated he thought my client wasn’t an American citizen and seemed genuinely confused when I told him Puerto Ricans were granted American citizenship by the Jones-Shafroth Act in 1917. The judge went allegation by allegation through my petition demanding sworn verification of everything. My client stood his ground and directly answered each question. I could see the judge’s complexion darkening with each affirmative answer. I guess he expected the sneer in his voice would intimidate my client and get him admit some falsity in his answers. You could sense the judge’s frustration mounting when it never happened.
Exasperated, he asked if I had any questions. I thanked the judge although I was unsure what for, and asked my client about his service in the Army and two tours of duty in Vietnam. The judge’s attitude immediately changed. He cut me short and, with a great flourish, signed my proposed name change order. “Here you go, my boy, anything else I can do for you?”
“What just happened?” the newly named Ze Ze asked as soon as we were outside of the courthouse. “I thought you said it was just gonna be in and out, no big deal.” “I have no idea, I guess the judge took offense to something, but I don’t really know,” I replied. Ze Ze thought for a moment before saying, “I do. I’ve faced such discrimination all my life. It’s part of the reason I wanted to change my name, because I’m proud of my heritage. I want to thank you for sticking with me and not backing down.” It may have been a miniscule victory in the long struggle for civil rights in Americsa, but it meant a lot to me because it meant a lot to my client.
It had to be a year or so later when the receptionist buzzed saying there was a call for me from a Rochester Pressley. I picked the phone and asked, “Ze Ze?” He laughed and said, “I didn’t think you’d remember.”
-
AN UNEXPECTED CAREER PATH
I studied business as an undergraduate and went to law school thinking I would become the lawyer for my father’s corporation but then married a girl from Charleston and found myself living in Columbia while she attended law school. Practicing criminal law was the farthest thing from my mind when my father-in-law helped me land a job as an associate with Senator Isadore E. Lourie’s law firm in Columbia.
I don’t think the ink was dry on my first paycheck when Jack B. Swerling, a partner in the firm, was appointed to represent Wendell Moye in a death penalty murder case. Moye and a co-defendant shot and killed an employee during the robbery of a TransSouth Finance office in downtown Columbia. South Carolina had reinstated the death penalty in 1974 and the new statute allowed for vior dire or the questioning of prospective jurors. Problem was no South Carolina lawyers had any experience with vior dire as the practice wasn’t allowed in other criminal cases. The practice is so fraught with risk, the lawyers appointed to the previous death penalty case, a case involving a minor accused of capital murder, decided to try their death penalty case non-jury hoping the judge would impose a life sentence. They were wrong and the judge sentenced the minor defendant to death.
I certainly never expected to be involved in a death penalty murder case right out the blocks. I didn’t know anything about the real practice of criminal law but was immediately impressed by the response of the criminal defense bar to Jack’s appointment. They freely offered their time and advice. It was based on the advice of Kermit King and Walter Brooks, both excellent criminal defense lawyers, who tired the minor’s death penalty case non-jury, Jack and his co-counsel, Gaston Fairey, decided they had to request a jury trial in their case. Never having done vior dire before,they asked legendary criminal defense lawyer, Millard Farmer, from the Southern Poverty Law Center, to help teach them how to conduct voir dire in a death penalty case. Like the local criminal defense bar, Millard Farmer and other lawyers with the Southern Poverty Law Center volunteered to come to Columbia at their own expense to offer help and advice.
I sat in on the meeting wide-eyed as they taught that qualifying jurors during the vior dire process predisposes the jury to impose the death penalty right from the start. Any juror who says they can’t impose the death penalty on religious or moral grounds is stricken from the jury for cause. The rest, more often than not, are gung ho to execute the defendant. During the meeting they handed over two large notebooks on jury selection in death penalty cases and I was assigned to review and digest the cases to help prepare for vior dire and jury selection.
When jury selection began I was surprised how easy it was for Solicitor Jim Anders to get prospective jurors he didn’t like to testify they were opposed to the death penalty. He’d start by asking whether the prospective juror attended church. From there whether they believed in the supremacy of God’s law including the commandment “thou shalt not kill.” And finally, to get them to admit they couldn’t impose the death penalty based on their religious beliefs. Not surprisingly a good number of the jurors who fell into this category were of African decent. Jack Swerling had the task of rehabilitating those jurors to keep them from being stricken from the jury for cause.
Jack was a big man who had a commanding presence in the courtroom, but he also had a surprisingly light touch. He rehabilitated jurors by walking them through the multiple steps required under the death penalty statute before the death penalty could be imposed. First, a defendant would have to be unanimously found guilty beyond a reasonable doubt of the unlawful killing of another being with malice aforethought. But Jack explained the intentional killing with malice aforethought wasn’t enough and, before the death penalty could be imposed, those same jurors would have to unanimously find beyond a reasonable doubt the murder was aggravated. The State would have to prove again beyond a reasonable doubt the murder was aggravated such as it occurred during the commission of a felony, the defendant had previously been convicted of murder, the murder involved torture, multiple people were murdered, or it was the murder of a police officer or a child. By precisely defining the kinds of murder required in order to impose the death penalty, Jack put the minds of many prospective jurors at ease. Then Jack explained that even if the jury unanimously found the defendant committed a premeditated, aggravated murder, they would also hear mitigating evidence and would not have to impose the death penalty. By explaining the process in greater detail, Jack gave the jurors the courage to say they could do their duty and follow the law despite their personal moral nor religious beliefs. Jack Swerling’s vior dire was so masterful, after exhausting all his preemptory challenges striking Jack’s rehabilitated jurors, Solicitor Anders was stuck with a jury morally opposed to the death penalty. He gave up and accepted a plea for life in prison.
The plea for a life sentence in the Moye case was a victory and a good story in its own right but that’s not the end of the story. The law-and-order mayor of Columbia , Kirkland Finlay, himself a lawyer, decided to make political hay out of tax dollars having been spent on the lawyers who kept Moye out of the electric chair. Much to his chagrin his political grandstanding got him appointed to the very next death penalty case. Findlay bitterly complained he weas a real estate lawyer and unqualified to serve. The Columbia criminal defense bar agreed, so they got together and requested he be removed from the case to prevent an obvious miscarriage of justice. Jack Swerling, who knew full well the sacrifice required, volunteered to represent the defendant in his place. When the Court agreed and appointed Jack, Solicitor Anders was forced to accept another guilty plea for life to avoid being embarrassed again.
I don’t think I’d finished my first year as a lawyer and the lawyer I was working for had won two death penalty cases back-to-back. I don’t think even Clarence Darrow could claim such a record. Impressive, but what impressed me most, and what I most admired was the willingness of criminal defense lawyers like Jack Swerling, Gaston Fairey, Kermit King, Walter Brooks, Millard Farmer, the lawyers from the Southern Poverty Law Center to stand up for justice at great personal sacrifice.
I spent the next five years traveling around the State of South Carolina trying criminal cases with Jack Swerling. During this time I served my first term on the Board of the South Carolina Trial Lawyers Association and was priviledged to hear, Gerry Spence, from Wyoming talk about his volunteering to represent the minor defendant in Kermit King’s and Walter Brooks’ death penalty case being argued on appeal. My admiration of such lawyers caused me to take a career path I never could have imagined. A career that included criminal defense spanning fifty years over which that same generosity was extended to me by members of the criminal defense bar and the South Carolina Death Penalty Resource Center when I was twice appointed to death penalty cases of my own. I am proud to have known so many great crimninal defnse lawyers in my practice and grateful they pointed me in a new direction on an unexpected career path.
TRIALSTORIES.BLOG
trialadvocacy.blog 