Morris D. Rosen, Esquire

There are many things I will remain grateful to my former father-in-law, Morris D. Rosen, for. Morris was truly a “lawyer’s lawyer” and introduced me a rarefied practice of law in Charleston I never would have known without knowing him. My son’s frustrations as a new lawyer reminded me of an important lesson Morris taught me when I worked for him as a summer law clerk.

My son called me recently on his way to the bank to deposit a large settlement check from an automobile accident case. I invited him over to celebrate his good fortune but he had other ideas that didn’t include siting around talking law with an old, retired lawyer.

Logan called me again the next day upset about his client wanting more money. Logan explained to the client he’d gotten all the insurance money there was to get. Then the client brazenly wanted Logan to cut his fee so he’d get more money. Logan explained his client had signed the contract of representation agreeing to his fee and signed the settlement statement itemizing the breakdown of the settlement. The client finally wanted Logan to stiff his ERISA health insurance company and not honor their medical lien so he’ could get more money that way. Logan said he’d be glad to try and negotiate the lien down but he couldn’t just ignore a statutory lien. I gather the conversation ended with the client bad mouthing all the good work Logan had done achieving the sizable settlement in the first place leaving Logan with hurt feelings about the things his ungrateful client had said. He stopped by on his way home to commiserate and I thought it was time to teach him a lesson Morris Rosen taught me long ago.

I asked him, “Didn’t anybody ever tell you about the “client satisfaction curve?” My look of puzzlement told him no one had. He sat me down at the long conference table in his library, sat next to me, and took out his yellow legal pad as he proceeded to draw a wave like curve on the paper. He placed his pencil at the bottom of first trough before the first wave and said, “This is where your client starts out on the satisfaction curve having gotten himself sued, arrested, seriously injured, or caught cheating on his wife. He feels fate and the whole world has turned against him.” Then he moved his pencil up the back side of the first wave, and continued, “Then you come along and give him hope that your knowledge and skills as a lawyer will be his salvation.” The top of the first wave he explained occurs on the day you get hired but then his pencil traced the slope line downward again as he said, “Every case has its problems. It turns out your client wasn’t quite as truthful as you’d hoped he’d been. Pesky facts keep popping up that throw a wrench into your carefully crafted theory of liability. Maybe you draw a take no prisoners defense counsel or a mean, defense oriented judge. There’s a million reasons your client starts to doubt your ability to save his ass.” The curve hit bottom but Morris continued and his pencil started back up the second wave. Morris continued, “But you’re a good lawyer and with hard work and dedication, you win the case.” Morris said as he paused at the top of the second wave. I thought he was finished with his lesson but he wasn’t. With hios pencil heading down yet again, Morris said, “Having won the case, your client soon begins to believe he was in the right all along and winning the case was no big deal. So easy in fact, you shouldn’t have been paid the fee you were paid.”

That, he explained, was just nature of the practice of law was. It doesn’t matter how good a lawyer you are, what you say or do, the client satisfaction curve will always run its course. Your client will gripe just as often when you win a case as when you lose one. The simple fact is it’s part of being a lawyer. Telling Logan the story about the client satisfaction curve helped him accept he’d done a good job for his client and shouldn’t let his client’s sudden dissatisfaction shake his confidence in his abilities as a lawyer.

There is no law that says if a burglar or rapist you shoot doesn’t die on your property, then you’re guilty of murder. The police who think so are not willing to take responsibility for possibly making a wrong decision. It’s not like they can’t charge someone later if more evidence comes to light. It’s a lazy lock-em all up and let the Court sort it out mentality.

Charleston, South Carolina used to be a home port for nuclear submarines. Submariners are a breed apart having to be crazy enough to live in cramped quarters for long periods of time without going crazy. Petty Officers are the naval equivalents of a Sergeants in the Army and it is their job to take care of the sailors who serve under them. A good Petty Officer seeks out good lawyers he can refer his crew to when legal problems threaten a sailor’s readiness for deployment. I once represented a submariner charged in municipal court for a drunk and disorderly and got his case first diverted, then dismissed. His Petty Officer’s took notice of my good work and soon became a regular source of referrals. Mostly minor stuff, car wrecks, landlord disputes, and traffic tickets but then, one day, to my surprise, he referred a murder case to me.

One of the sailors in his crew gave his wife a 25 caliber automatic pistol for her protection while he was on deployment. One night she was awoken by a man climbing through her apartment’s bedroom window in downtown Charleston. She sat up and asked what he thought he was he doing as the man gave her a look that said she knew exactly what he was doing. That was when she reached up under her pillow, pulled out that 25 caliber pistol her husband had given her, and pointed it straight at him. Seeing the gun the man ran out her bedroom and down her hallway leading to her front door where he was fumbling with the lock when the first bullet came down the hallway and struck him in his back. He fumbled the deadbolt open, turned slightly as he pulled thew door open as the second bullet entered his right side. 25 caliber bullets don’t have much stopping power and the man was able to flee the scene as the Navy wife called 911.

The man was nowhere to be found when the police arrived. The police took her statement and had forensics dust for fingerprints. They were getting ready to wrap things up when a neighbor down the street discovered a man crawled up under his pickup truck. While a 25 caliber bullet doesn’t have much stopping power, it does have a nasty habit of ricocheting round inside the person whose body it enters . The bullet that entered this man’s right side ricocheted around his rib cage before tearing through his mesenteric artery causing him to bleed out internally. He was dead long before the police pulled him out from under the pick-up truck and everything went south for my client. Next thing she knew was she was being charged with murder, read her rights, handcuffed, and put in the back of a police cruiser. One of the policemen almost apologized saying, “If only he’d died in your apartment, we wouldn’t have to charge you with murder.”

There was never any had to about her arrest. I didn’t have to be Clarence Darrow to know the case against her was a total crock and was never going to see the inside of a courtroom. But I also knew one of the most frustrating things about our criminal justice sysatem is how long it can take for things to get done, especially when a person charged is innocent.

Bonds in murder cases have to be set by a Circuit Court Judge. You have to file a motion for a bond hearing and serve the motion on the Solicitor who won’t want to do anything until they speak with the arresting officer. In the meantime you have to track down the law clerk for the judge hearing General Sessions cases to ask the judge to schedule a bond hearing. Your client can spend days in the County jail before a bond hearing is scheduled. For a Navy wife, who never did anything illegal in her entire life, to be stripped down, put in an orange jump suit with plastic sandals, and be thrown into a filthy cell with God knows who, is terrifying no matter how many times her lawyer tries to convince her he’s doing everything possible to get her out.

Fortunately, the facts and circumstances of this particular murder case were compelling. I was able to convince the law clerk to put in a good word in with the Judge to get the case scheduled which helped focus the Solicitor’s attention on the case which. After the soliucitor learned the facts, he agreed to dismiss the case outright setting my client free. Getting her case dismissed didn’t feel like much of a victory, it felt more like a defeat being part of the system that wrongly incarcerated her in the first place.

The sad truth is, if her arrest hadn’t been quite so obviously wrong, it would have been just the beginning of a glacially slow process trying to prove her innocence. The Court administration and prosecutors today measure success by how many cases are moved through the system. The fastest way to move cases through the system is by guilty pleas. A defendant willing to take a plea bargain can have their cases brought up quickly. When the plea offer is for probation, which they most often are, the sad truth is too many people plead guilty just to get out of the stinking county jail. For people who don’t want to plead guilty, the Solicitor gets to decide which cases to call first for trial. They naturally choose the cases that are most likely to result in convictions and too often defendants who have arguable claims of innocence get shoved onto the back burners. Compounding the problem is the chronic lack of resources for our court system. There aren’t enough judges, clerks, bailiffs, court recorders, and courtrooms to move the backlogged cases.

Yes, the system worked in my murder case. My client got a lawyer, her lawyer got a hearing, and the murder charge against her was dismissed. Think about how important those fundamental rights of due priocess were to her. And think what their denial must be like for the immigrants being swept off our streets and held in ICE detention without them. Our rights aren’t meant to protect criminals, they’re meant to protect all of us. As one of my law professorsonce said fifty years ago, we have the worst system of justice in the world, except for all the others. Catchy, but we can do better.

Judge Weston Houck wasn’t a Federal Court judge any normal lawyer would want to fuck around with. His sharp tongue and quick wrath could wither the most hardened of litigators. But Bobby Howe wasn’t a normal lawyer. He probably had no business practicing law in the Federal Court in the first place but was hied by the secretary of the local Longshoreman’s Association accused in a union corruption trial of keeping the books for a scheme to sell Charleston union memberships to out of state wannabe longshoremen. The alleged scheme worked like this: a person couldn’t work on the docks unless they’ were a member of the local ILA union, unless all the local ILA members were already working, then an out of state ILA member could be chosen to work on a gang. New Orleans had more work than union members, so persons with a membership in an out of state union, like the Charleston ILA, could work pretty steady down in Louisiana. All it took was for some high ranking union official in Charleston to sell clandestine union memberships to persons from Louisiana for a hefty sum. The DOJ took a dim view of the practice and decided to indict the union officials in Charleston and New Orleans profiting from the scheme and for good measure charged Bobby’s client, the secretary of the Charleston union, to coerce her cooperation. 

In pretrial motions Bobby moved to sever his client from the union officials on dubious ground that it was unfair to try the lowly secretary for doing what her boss told her to do but Judge Houck made short shrift of Bobby’s motion by summarily denting it out of hand. So Bobby found himself fixing to try a Federal Court union corruption case along side hardened DOJ prosecutors and high priced criminal efense lawyers representing the union officials before a crusty Federal Judge.

And so the trial began. The more experienced lawyers busily examined and cross examined the witnesses and made objections, while Bobby bided his time not responding to the vast majority of the testimony and evidence that didn’t didn’t have anything to do with his client. Bobby didn’t know when the trial started but Judge Houck had a habit of asking if there was anything that needed to be brought to the Court’s attention before beginning the trail at the beginning of everyday and after every break. The first time Judge Houck asked if there was any matter that needed to be brought to the Court’s attention, Bobby stood right up and renewed his motion for a severance. Judge Houck turned about 3 shades of red darker and admonished Bobby that his motion for severance had been denied and should neither be raised nor reargued again in his courtroom. The next time the judge asked the same question, Bobby sheepishly said, “I know you already ruled on my motion but there was more testimony this morning that might have changed your mind and, since you asked, I’d like to renew my severance motion for the record.” That’ll be denied the judge intoned gravely with a look on his face that indicated he was wondering if Bobby was intentionally fucking with him. The judge added with an air of finality, your motion for a severance is preserved for the record and doesn’t need to be renewed over and over.

Well, Bobby was, in fact, fucking with the Judge and, sure enough, after the next break, when the judge asked if there was anything that needed to be brought to the Court’s attention, Bobby just raised his hand and the prosecutor and other lawyers shook their heads in disbelief. That’ll be denied the judge barked without Bobby saying a word. But this continued throughout the trial. The judge would ask, Bobby indicate he wanted to renew his motion, the judge would threaten him with all manner of contempt of court, and Bobby would shoot back that the judge should stop asking if there was anything if he didn’t mean it.

Judge Houck struggled to keep from losing his temper and saying something on the record that could get him reversed on appeal. He decided to make a joke out it. He started making and denying Bobby’s motion before Bobby could say anything. He would say, “Is there anything other than Mr. Howe’s motion for a severance which is denied” that needs to be brought to the Court’s attention before we resume testimony.” Bobby would respond with a nonverbal exaggerated shrug with a look of hurt on his face that drew sympathy from everyone in the courtroom except for the Judge.

The trial proceeded and finally got around to the U.S Attorney calling the FBI agent who offered the only testimony against Bobby’s client. He testified he interviewed Bobby’s client at her mother’s home and she confessed to keeping the books for the illegal union membership scheme. Bobby asked if his client had signed a confession. No, she did not. Had he recorded her confession. No, he had not. Did he have any witness who could corroborate this confession. No, he did not adding the defendant’s mother had left the room when she made her incriminating statements. Bobby scratched his head in bewilderment and sat down. The Judge and other lawyers all looked at Bobby like he’d committed courtroom malpractice not going after the FBI agent for not following DOJ and FBI mandated procedures for conducting interrogations. The trial moved on and Bobby remained uncharacteristically quiet.

By the end of the trial it had become exceedingly clear the evidence of the scheme was overwhelming. Try as hard as the lawyers for the union officials could to make it sound like it was nothing more than union members helping their brothers out, the evidence of the significant sums of money that exchanged hands and the efforts to conceal it was simply too much to explain away. In his closing argument, the Assistant United States attorney laid out his evidence methodically until it irrefutably proved the guilt of the defendants. Well, not so much the guilt of Bobby’s client, the evidence supporting her conviction rested solely on the FBI agent’s testimony. The other lawyers made their arguments smooth as silk but just as insubstantial. Then it was Bobby’s turn, Judge Houck stirred on his bench signaling he wasn’t going to take any of Bobby’s shenanigan’s during closing argument right before Bobby stood up to give the best closing argument I ever heard.

Everyone wondered where he was going when he began his argumentn by saying being involved in a Federal Court criminal trial is like riding a roller coaster at the State fair. It’s all fun and games, laughter and bravado standing in line waiting to get on the ride. It continues all fun and games right up until you climb into the car and they strap you in he said as he changed his body position, like he was sitting down. Then he cocked his head back, and began visually climbing up the first incline of the roller coaster. Up, up, and up he said glancing at his clenched fists, as your knuckles whiten grasping the bar, right up to the top where, he suddenly cocked himself forward, looking terrified as if staring down the precipitous drop off on first crest of the coaster the other side before Bobby began violently rocking side to side, back and forth as if careening at break neck speeds around all manner of twists and turns on the roller coaster. Then he suddenly stopped, straightened up, and turned back to the jury and seamlessly transitioned by saying, in all sincerity, riding a roller coaster at the fair isn’t fun, its S C A R R Y. Just like being tried for a crime in Federal Court and facing the prospect of losing your freedom for doing what your boss told you to do. The jurors all of whom had probably ridden roller coasters and knew exactly what Bobby was talking about, were riveted by his narrative.

Bobby paused, seeming to collect his thoughts and the juror’s attention, before continuing. in a shaking voice, I don’t know about you, but if the F……………, B…………, I………….. calls me saying they want to talk to me about committing a crime, I’m gonna call my MOMMA. I noticed a couple of jurors nodding their heads in agreement. Picture this he said to the jury. like they were now all friends, everybody, my client, her mother, and the FBI agent, are all sitting around the formica table in Momma’s kitchen. He put his hands on the rail of the jury box and leaned in so he could talk in a lower voice. The jury all leaned in too as if around momma’s table to hear better, and he said in a quiet voice, they’re talking about this and that, nothing incriminating, until, just when the FBI agent is getting around to asking my client about her role in the alleged crime, this F B I agent testifies UNDER OATH Momma gets up and leaves the room. Dead silence. With a stunned look on his face, Bobby raised his hands off the rail and slowly, ever so slowly, turned around until he and every one of the jurors behind him was staring directly at the hapless FBI agent sitting on the front row of the courtroom. And Bobby bellowed out, “MOMMA, WHERE YOU GOING?“

And that was it. He sat down. He didn’t have to say anything else. He let the jury say it for him and it wasn’t a surprise to anyone in the courtroom when the jury returned verdicts of guilty as to the union officials and not guilty as to Bobby’s client.

Bobby wisely thought it best to beat a hasty retreat from the U.S. Courthouse but, before he could make it out the door, the U.S. Marshalls were waiting to escort him back up to Judge Houck’s chambers. They led him in and left him standing helplessly in front of the judge’s desk while the judge seemingly attended to administrative matters. Bobby waited for for the Judge to say something, anything. After letting Bobby sweat it out for what seemed like forever, before Judge Houck looked up from his chair, over the rims of his half framed glasses and, for the first time with a smile on his face, said, well, Mr. Howe, I been reconsidering granting that motion for a severance of yours.”

I wasn’t his lawyer when a former client was charged with murder. He was represented by the Public Defender’s Office and they asked for my help.

 I previously represented the defendant when he was hit by a pickup truck making a right hand turn in a crosswalk. Fortunately, he wasn’t hurt too bad and I was able to get him a quick  insurance settlement. I realized he wasn’t in his right mind while handling his wreck case but he denied there was anything wrong. His mother, however, told me a different story. She began by telling me how proud she was of her son. He’d gone to college and had good job in Atlanta running a drug rehabilitation clinic before a blood vessel ruptured in his brain. She told me the doctors were amazed he’d survived but said he suffered permanent brain damage, was unable to work, and had to return home so she could take care of him.

Caring for him with no money coming in to help pay his living and medical expenses was exhausting. The small insurance settlement I got for him would help but not for long. His mother confided her biggest  struggle was dealing with the behavioral changes brought on by his brain injury. He’d get to not liking the way his medicine made him feel, stop taking it, causing his emotional outbursts would go from bad to worse. She told me of one incident. He lived upstairs and would shut himself in for days on end. She brought his a spaghetti dinner and left it by his door. He didn’t like spaghetti and threw the plate down the stairs leaving the mess for her to clean up. She struggled to coax him back onto his medicine and told me she was at her wits end. I asked why he wasn’t receiving Social Security disability benefits and Medicaid to help with expenses and she didn’t even know Social Security would pay for disability. More for her benefit than his, I agreed to file a Social Security and disability claim for him.  

To support his claim I had to gather his medical records from the hospital and doctors in Atlanta where he was treated for his ruptured brain aneurysm. It was only then that I began to understand the full extent of his brain injury. The bleed on his brain was truly life threatening. As the blood pulsed from his ruptured blood vessel, it caused the surrounding brain tissue to be compressed and swell. The doctors induced a coma and performed an open craniotomy to clip the ruptured blood vessel and evacuate the accumulated blood but, by that time,  extensive damage had been done to the surrounding brain tissues. Post surgery radiographic studies showed the complete absence of a significant area of his brain that had died.  The doctors said it was a miracle he ever woke up from the coma. He had health insurance through his job that paid not for his hospital and surgeon expenses, physical therapy so he could learn to walk again, and speech therapy to learn to speak again but, before his recovery was anywhere near complete, his insurance lapsed when he couldn’t return to work.

Like 99.9% of people who file for Social Security disability, he was turned down the first go round. I knew physically there were still hundreds of jobs he could perform and worked to supplement the record on reconsideration that his disabling problem was his mental impairment, not physical. I met with his doctors and got them to complete a questionnaire tracking the Social Security listing of impairments regulations for mental impairments. His doctor not only completed the form, they wrote an eye popping warning that without proper treatment and medication he was a danger to himself or others. The doctor’s letters did the trick and the Social Security Administration relented and awarded him benefits on reconsideration. 

The client faded from my memory until I read in the paper he’d been arrested and charged with murdering his mother. The paper described how he was apprehended riding his bicycle down a busy street covered in his mother’s blood. When the police stopped him to investigate he was incoherent. When they checked his home, they discovered his mother had been beaten to death with a cast iron fry pan. Later in custody, after he allegedly calmed down and became coherent again, the police report said he  confessed he’d killed his mother. I didn’t doubt he did it but  doubted the reliability of his alleged confession.

He was ably represented by the Public Defenders Office. When they asked if he had any medical records documenting his brain injury, he remembered I’d gotten all his medical records from Atlanta when I represented him for Social Security disability. They called me and I gave them everything I had.  I commented how sad what happened was and how I knew how much he loved his mother.   

The public defender was experienced enough to know it would take a competency hearings, court ordered evaluations and counter-evaluations, followed by more hearings taking months upon months before a lengthy and expensive trial of competing experts arguing over his criminal culpability could be held. The prosecutor also understood and agreed with his Public Defenders he needed treatment. They agreed the best way to get it for him was to plead to guilty but mentally ill.

The law changed after the assassination attempt on President Reagan making it almost impossible to get a not guilty by reason of insanity verdict. Since then the best you hope for was a guilty but mentally ill. Under the new guilty but mentally ill rule, a person who suffers from a mental illness and commits a murder can be found or plead guilty but mentally ill and get sent to a hospital for treatment instead of to prison. In a perfect world this would make sense. But in reality, once the good doctors at the State Hospital found the defendant was “cured” or, more likely, sufficiently medicated, he would be sent to prison anyway to do the mandatory 30 years for murder.

Still, guilty but mentally ill was my old client’s only option. At least he wouldn’t go to prison initially but to a hospital where he would get at least marginal care and hopefully the medication he needed. Missing alarge part of his brain it was unlikely he’d get cured and be sent to prison. How the guilty but mentally ill rule works in the real world is probably a lot for you the reader to take in, so imagine how hard it was for my former brain injured client to understand. When the public defender discussing the guilty but mentally ill plea offer with him, he didn’t understand and asked to see his lawyer who he apparently thought I still was.

I knew and respected his PD lawuyer and accepted her invitation for an in-person meeting with her and my former client at the jail before I had a chance to think through the potential ethical problems that would arise. When I had time and tried thinking them through, I realized there were no easy or good answers to the ethical problems raised. Each question about one ethical problem raised another. Could I rely on what the PD said, or would I have to independently review the case file to verify everything to know how to advise the clienthim? Could I rely upon my knowledge and experience dealing with him in the past to know what would be best for him today? To what extent are lawyers ethically bound to help current and former clients in need? To help fellow lawyers in representing their former clients. To help see the wheels of justice don’t grind another helpless defendant to a pulp. I arrived for the meeting at the jail still having no clear answer to any of these questions. In the real world that’s how ethical problems come at a lawyer.

The PD had arranged for a private room at the jail where we could meet face to face. My former client was already in the room with his Public Defender when I made it through the rigamarole getting in to see him. He was glad to see me and tried to stand up to shake my hand but was handcuffed to an eye hook bolted to the table. He looked more disheveled than when his mother was caring for him but otherwise appeared to be in good health. I let his PD take the lead asking questions and I saw that he listened carefully and responded appropriately to what was being said.

To my relief it turned out my advice wasn’t needed. He freely admitted what he’d done and understood there had to be consequences. He said he’d given a lot of thought to it and had decided pleading guilty but mentally ill was what he wanted to to. I listened as his PD explained all the risks and benefits of the plea and as he said he understood he could end up in prison anyway but his mind was made up.

Now, did I think he really understood the advice he was given, or that he freely, voluntarily, and intelligently decided to accept the plea? I had no way of knowing and, thankfully, wasn’t asked for my opinion. As a lawyer and a human being my heart broke for his mother he loved and for him stricken by an incurable brain injury. I was thankful for the thankless job the Public Defenders Office does handling impossible cases like this one every day. 

For years afterward I would receive letters from the defendant still in the hospital. Letters hand written on the borders of articles torn from magazines and newspapers. They were letters on disjointed topics of no particular rhyme or reason. Initially, I did my best to write him back thanking him for his letters and inquiring how he was doing. but gradually stopped when all I would receive in return were more clipping covered in cryptic comments. At least I knew he remained in the hospital and was receiving what medical care they had to offer.  I write this story to illustrate being a criminal defense lawyer is hardly ever as black or white as people think. More often it presents problems with no easy answers.

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. 

I sometimes carry trial stories around for so long I forget whether I’ve started writing them down. This story’s a doosey I’ve carried around for thirty-six years and, even though I know I’ve tried writing it down several times before, I can’t find a single draft. It is a story so genuinely bizarre I couldn’t possibly have made it up. I’ll start where death penalty cases always start and that’s with some poor lawyer being appointed to represent a defendant the prosecutor has already indicted for murder and filed a notice he intends to seek the death penalty. A defendant no sane lawyer would agree to represent for any amount of money.

Since I had the requisite five years experience trying major felony cases, and had already tried my first death penalty case, I started squirming the first time I read about Ronny Walden. When my phone rang and I found myself talking to the Dorchester County Chief Administrative Judge, I knew instantly he was calling to appoint me to Ronnie’s case. All I could say to the Judge was, “Yes, sir, your honor, I’ll be glad to put my law practice and my life aside for the next 4 or 5 months and represent Mr. Walden.”

They say lawyers have to play the hand they’re dealt. That’s only partly true because, unlike playing cards, you can’t fold a losing hand in a death penalty case. In other cases you can plea bargain but, the prosecutor having made a big splash in the news announcing his intent to seek the death penalty for this heinous crime, there’s no bargaining room left. You’re all in from the git go no matter how bad the hand is you’re dealt.

And from what had already been published and broadcast about the murder, I knew I’d been dealt was a losing hand. Ronnie Walden was escaped from prison in Tennessee where he was serving time for grand larceny. A friend now willing testify against him, gave him a gun and ride to South Carolina where Ronnie thought another friend would hide him out. Problem was this other friend had moved without bothering to tell Ronnie. Left stranded, Ronnie cooked up the plan to pose as a wealthy buyer looking for country property. He conned a local estate agent, husband, father, and respected pillar of the community, into picking him up at a hotel off the interstate where he wasn’t staying to show him some listings. The agent gladly picked him up and drove him out into the country to show him one his best listing. As soon as the agent stopped in the driveway, however, Ronnie pulled his gun and shot him through the head.

People think getting shot it in the head leaves a little red hole in the victim’s head. That little red hole is just the entrance wound. As the bullet bores though the scalp and skull it flattens out and the exit wound on the other side of the head becomes an explosion of blood, bone, and brain coming out a much larger exit wound. The blood and gore splattered all over the inside of the agent’s car Ronnie wanted to steal created a real mess. Ronnie got it all over himself as he pulled the agent’s body from the car and dumped him on the side of driveway. He used some old clothes in the trunk to clean the car and himself as best he could before driving the agent’s car back into town where he used the agent’s credit card to get himself a haircut and hotel room. It was using the agent’s credit card that led the police right to him. Murder committed during the commission of an armed robbery, qualified Ronnie for the death penalty.

After all the gutless Dorchester County lawyers convinced the Judge they either personally knew or had done legal work for the agent to get themselves excused from the case, I was appointed to be Ronnie’s co-counsel with G.W. Parker, the Public Defender for Dorchester County. Being appointed with G.W. was my first break in the case. I was appointed in Berkeley County on my first death penalty case and exhausted myself driving the hour and a half there and back to the courthouse everyday. The courthouse in Dorchester County is even further away from where I lived, so I was determined not to make the same mistake. G.W. and his wonderful wife had a guest room. They welcomed me into their home and extended every hospitality for the duration of the trial.

As the Public Defender G.W. was no stranger to the criminal courtroom but he had never handled a death penalty case before. We decided I would sit first chair but GW did more than his share of the work preparing pretrial motions, researching the jury pool, drafting jury voir dire questions, and making sure each night we had a good home cooked meal and a quite place where we could talk and plan for the next day of the trial. I probably shouldn’t mention it, but G.W. had what I later learned was probably Grave’s Disease, a thyroid disorder, that gives the patient bulging eyes. When I first met him, I got the feeling I had a large spider crawling up my shirt each time he looked at me. Thankfully, in my line of work, I’d learned not to base too much of anything on appearances and that feeling subsided as my respect for his legal abilities grew.

As much of a help as G.W. was, however, my second break in the case turned out to be the Public Defender’s private investigator, Bill, whose last name has faded from my memory. Bill was a hard boiled, retired police detective who knew more about the criminal justice system than I ever would. He spent hours with Ronnie in the jail learning everything about him, his upbringing, background, and the facts of the case. Bill was the first to recognize Ronnie was a a true sociopath. For those of you who don’t know, a sociopath feels no emotions, good or bad. They know they’re different form other people and become experts at faking emotions to fit in. Ronnie was really good at faking emotions, much better than an ordinary person with real emotions. Even the hardened PI, a hardened police officer who saw through Ronnie’s fake smiles and practiced manipulations, found Ronnie to be a likeable person. It was the time Bill spent with Ronnie that broke the case and gave G.W. and I us a trial strategy.

Ronnie readily admitted what had happened +but claimed it was an accident. To his credit, skeptical as he was by nature, Bill remained open to what Ronnie told him. Ronnie admitted he wanted to rob the agent and steal his car but, said, when he pulled his gun, the agent panicked and turned quickly in his seat attempting to open his car door at which time his head hit the barrel of the gun causing it to fire. Ronnie didn’t strike Bill as stupid and Bill reasoned, if Ronnie wanted to murder the agent and steal the agent’s car, wouldn’t he have wanted to wait until they were out of the car before shooting him through the head? Bill traced the trajectory of the bullet and duplicated the movements described and determined what Ronnie said was possible, the magic words to a criminal defense lawyer. We wouldn’t have to prove that what’s happened, the prosecutor would have to prove it didn’t happen that way beyond a reasonable doubt.

But Bill still wasn’t satisfied until he discovered the third break in the case. He examined the murder weapon, the gun recovered when Ronnie was arrested, and discovered it had a hair trigger. A trigger that could easily have fired the gun if the barrel was struck as Ronnie described. Not a defense to either the crime of murder but a whole lot better in a death penalty trial than Ronnie having intentionally pulled the trigger that put a bullet through the agent’s head.

Another lesson I’d learned in my first death penalty trial was not to waste a lot of time and credibility during the guilt or innocence of the trial. GW and I decided early on the evidence against Ronnie was overwhelming and, although it may seem counterintuitive, we stipulated to all the prosecutor’s evidence about Ronnie’s escape from prison, how he got to South Carolina, and all the physical evidence collected at the scene of the murder and seized during Ronnie’s arrest. By the time the prosecutor figured out what we were doing, he already stipulated away a good part of his case.

We knew we weren’t going to win the guilt or innocent phase of the trial, but the prosecutor gave me an opening in his closing argument. He picked up on our hair trigger defense and argued forcibly the Smith and Wesson pistol was a perfectly good gun. In my closing I picked the gun up with two fingers by the base of the grip and held it up before the jury like a dead rat. I told the jury there were no good guns, they only have one purpose and that is to kill people. I then cocked the hammer, turned towards the jury, and tapped the end of the barrel on the podium as the deafening sound of the hammer falling filled the stunned courtroom. During deliberations we could hear the jury banging the gun on the table in the jury room. We were ready for the sentencing phase when the inevitable guilty verdict was returned.

Another lesson I’d learned from my first death penalty case was not to rely on forensic death penalty experts who are hired to develop mitigating evidence for use during the sentencing phase of the trial. The so-called expert in my first case felt compelled to explain to the jury the “13 1/2” tatooed on the defendant hand was for the “twelve fucking jurors who convicted him, one for the fucking judge who sentenced him, and 1/2 for the half-assed lawyer that represented him for a prior conviction.” We decided we’d do the mitigation investigation ourselves and establish whatever mitigation evidence we could muster by the testimony of live witnesses instead of by the opinions of so-called experts. It meant a lot more work for us but paid off in the end.

I traveled to Valdosta, Georgia where I met with Ronnie’s father, one of the nicest person I have every met. He’d been a farmer his whole life but, now that he was retired, opened up his farm through his church to give disadvantaged children some relief away from the oppression of the inner city. He loved his son dearly but had no delusions about what Ronnie was or what he’d done. He chose to remember Ronnie as the star wide receiver on his high school and college football teams. He had scrapbooks full of pictures and newspaper articles about Ronnie. I almost didn’t have the heart to talk with him about the other side of Ronnie. HIs heart must have been broken a hundred times as Ronnie started getting into more serious trouble and ended up in the penitentiary doing hard time. He knew what Ronnie was accused of doing this time in South Carolina but still told me without hesitation Ronnie was not a killer. Oh, he’d steal the money off the collection plate and not give it a minute’s thought, but his father was adamant Ronnie was not a killer. If I ordered a trainload of believable witnesses and they sent me Ronnie’s father, I’d mark the invoice paid in full.

The fifth break that we got was Ronnie’s father didn’t only keep a scrapbook of Ronnie’s football career, he keep everything including letters from two individuals whose lives Ronnie saved while in prison. During one of Ronnie’s stints in the pen, he studied first aid and learned life saving techniques. The first gentleman was a bronco rider in a rodeo that performed in prisons. He had a heart attack and Ronnie got to him and performed live saving CPR until the medics could arrive. The second gentleman was a prison guard who had been knifed in a prison riot resulting in his lung cavity filling with blood making it impossible to breath. Ronnie pulled him to safety and used a ball point pen to drain the blood out of his lung saving his life until he could be rescued. Both men testified at the trial that, although they didn’t know anything about what he’d done, they wouldn’t be alive today if it hadn’t been for what Ronnie did.

I can give a pretty good fire and brimstone closing argument when needed and pulled out all the stops on this one. With help of many better lawyers who have undertaken this task before me, I began my summation by saying, “Even on my best day, any summation I could give in a case where the State seeks the death penalty, I would be inadequate. This, ladies and gentleman, will not surely not be my best day. I am tired physically and emotionally from the burden that has been set upon me. I am tired from the hours, days, weeks, and months I have spent preparing for what has ultimately turned out to be this plea for a merciful life sentence of life imprisonment for Ronnie Walden.. After these long days in this courtroom, when you have retired to your motel rooms for the night, the countless thing Mr. Parker and I have had to do and the worry of the responsibility would rob us of any rest. Last Friday, when you returned your verdict, this burden truly became a life and death struggle. A struggle complicated by the human tears and suffering of all who will be touched by what we do here today. Even on my best day, I would be inadequate. Nothing in my religious, general, or legal education, nothing in the experiences of my life, has prepared me for this day. Where does one look to find the means of measuring the worth of a human life? To understand the infinite influences that could cause a human being to take the life of another, whether that be the life of ___________________ taken that horrible night, or the life of Ronnie Walden the State asks you to take today. Even if I had such knowledge, how would I find the words to convince you in the confines of this summation. Even on my best day, I would be inadequate.” I continued, “The electrocution of Ronald Walden would be no less cold-blooded because it is done in the name of justice and righteousness. It wasn’t so long ago in human history that innocent persons with epilepsy were burned at the stake for witchcraft. Let us never forget, it was perfectly legal to exterminate over six million Jews in Nazi Germany. Justice? Who knows what justice is? Does the prosecutor know? Do I or anyone in this courtroom know? Is there any man who can weigh me and say what I deserve? Let us be honest. What human machinery exists, what perfect courtroom, what miracle of science for finding justice out? If there ids justice, that it must surely take account of the infinite circumstances of any human it weighs. It could be administered by a supreme being who knew the innermost thoughts of the man to whom it is being administered. It means that you must appraise every influence that moves men, the society in which they live, and infinite other influences at work in our lives. If you can do this, they you truly have mor wisdom that I have, and, within that wisdom, there surely must be mercy. Now it may be strange to you that I have used the word mercy in my summation. With acknowledged help from one of the greatest lawyers that ever lived, Clarence Darrow, who was vehemently opposed to the death penalty, I continued by saying, “Give him the same mercy he gave ________________________,” is what I’ve heard said. Is that justice? Is that what the prosecutor would ask you to do? If this State’s courts, if you jurors, are not kinder, more humane, more compassionate, more intelligent, and more merciful than the act to Ronald Walden, then I am sorry I have chosen law as my profession.” I concluded, “I too hat crime and feel its frightful grip on our lives. But I cannot embrace violence as a means of stopping it. I have no choice but to believe in the power of Crist’s word’s of love and peace. Before you put aside His words, consider the power they have had for good these two thousand years. Remember the Lord’s prayer, ‘Forgive us our trespasses as we forgive those who trespass against us.’ As Luke wrote, “Be ye therefore, merciful, as you Father also is merciful. Judge not, and yet shall not be judged; condemn not and ye shall not be condemned; forgive and you shall be forgiven.’ I ask no more than you be merciful to let Ronnie Walden be locked up in prison for the rest of his life.” The jury returned a life sentence.

I didn’t ask to appointed in either of my death penalty cases. Certainly not on my first case, a triple murder, to which I was appointed the week before Thanksgiving to go to trial a mere six week later on January 8 to following year. But since I was, I put everything I had into the task and gratefully received help from many other lawyers dedicated to fighting the death penalty. I learned more about trying cases than I had in other trial. I know the prosecutor wasn’t happy I was appointed to my second one. He truly thought an escaped convict committing a murder during an armed robbery caught red handed was a slam dunk. But even he knew by the close of my summation, he was wrong and a death sentence was not to be. It’s been thirty-seven years since my second death penalty trial and I haven’t been asked to do a third. 

It must have been a year or two after the trial, I was listening the NPR on my way home from work one night and I heard an inmate at the Ridgeland Correctional Institute had gotten a hold of gun and taken hostages. I thought, oh not, please, don’t let it be Ronnie. But it was Ronnie. He taken the doctor and a nurse hostage in the prison dispensary. It must have been too new for the evening news when I got home and it didn’t make the eleven o’clock news I watched before I went to bed. I spent a very restless night worrying, I would somehow be responsible if Ronnie killed the hostages after I got him a life sentence. It wasn’t until the morning that I was relieved to learn Ronnie had turned the gun on himself and taken his own life.

     South Carolina, like most states, has a minimum amount of automobile insurance a person has to have to drive a car on our streets and highways. In South Carolina the minimum coverage is $25,000.00 but there is a self-insurance loophole that for some unknown reason allows taxi cabs to just have $10,000.00 in coverage. The defense of taxi cab lawsuits was handled on a contract basis by a local lowlife lawyer who, as the saying goes, if you ordered a trainload of sons-of-bitches and they sent you this guy, you’d mark the invoice paid in full. He would deny every claim just to delay having to the paltry coverage for as long as possible. 

        My client, who was run over by a taxi and suffered significant injuries, wasn’t offered anything to settle his case before trial. To be honest, his case had more than a few problems seeing as though he was two and a half times the legal blood alcohol limit and positive for cocaine in his blood when he was passed out in the road and run over by the taxi just a couple doors down from his own home.  

        The taxicab was dropping off a fare in the neighborhood and missed the house number, so the driver backing up to find the right house when the driver and his passenger heard a ba-bump as the rear wheels of the taxi went up and down. The driver turned around to look out the rear window, didn’t see anything, and said to the passenger, “Must have been a dog.” He then continued backing up and they heard it againas the front wheels jumped up and down too. When he pulled back a little further, his head lights revealed what he had run over and the passenger in backseat of the cab shrieked, “That ain’t no dog, it’s a human being.”  

        So, here it was three and a half years later and I was sitting in a courtroom pulling a jury to try the case. My client was going to be of little help having no actual recollection how he got so intoxicated, how he got home, or how he ended up passed out in the road. He was taken from the scene in an ambulance and didn’t regain consciousness until the next morning in the hospital. The cops weren’t much help either as they charged my client with causing the accident.  Thankfully, they had written down the name and address of the passenger in the cab that night. I knew her story from the statement she gave to my private investigator, but still didn’t know if her testimony would be enough to overcome my own client’s stupidity.

I asked family, friends, and fellow lawyers what they thought of my case and they all said it was a dead loser. One friend, who ran track at the University of South Carolina under legendary coach, Weem Baskins, gave me some advice, “Whenever we were getting ready to run a meet against an obviously better team, Weemie would tell us just put one foot infront of the other, lift your knees high as you can, and get alittle reckless.” So I called the passenger as my first witness. She took off running like a thoroughbred. She didn’t tell the jury what happened, she acted it out with her entire body. She’s the one who used the words “ba-dump” to describe what it sounded like while she jumped her whole body in the witness stand as she said it. When she said what she said about it being a human being, her eyes got as big as they must have gotten that night. I thought her description of the driver continuing to back up running over my client for a second time was just I needed to save the day. But her cross examination by the experienced taxicab lawyer was brutal. She admitted the cab driver was nice and polite, drove safely the entire trip. That nobody saw my client dressed all in black as he drove down the street. And the man was at least half way in the road. Thew taxicab driver held his own on direct and cross examination. I couldn’t read the jury and thought at best, it was a toss up when the time came for closing arguments.

        Sometimes an idea just comes to you in the middle of an argument. I remembered there is an exception to the general rule a person contributing to their own injury can’t recover called the doctrine of the last clear chance. It said if a person is in a position of danger and peril from which he couldn’t escape, then someone can’t escape liability if they had the last chance to avoid injuring him. I couldn’t get around the fact my client was passed out on alcohol and drugs at least half-way in the road, so I told the jury the problem with the defense’s case was the taxi cab driver didn’t know why my client was passed out. I suggested he could have been having a medical emergency, a heart attack, a seizure, or a diabetic hypoglycemic attack. It just came out and I didn’t even really think that much about it until the jury deliberations became heated and the jurors started raising their voices in their jury room loud enough so everyone in the courtroom could hear them. One woman juror’s voice rose above the others and said, “My sister has diabetes. You can’t run her over!”

        It wasn’t long thereafter the jury returned with a verdict in favor of my client. It was a compromise verdict to be sure but still a large one, not that the size of the verdict mattered much as it exceeded the taxi cab’s $10,000.00 coverage. One of my all time favorite lawyers, Stanley Feldman, happened to be in the courtroom that day. The next time I saw him, he laughed out loud and said I had won the impossible case by conjuring a diabetes defense out thin air. I laughed and qotied Weems Baskin When no offer is made, and your stuck trying an impossible case, you just have go ahead and get a little reckless.