Senator Isadore E. Lourie

Marquard v. Columbia Pacific Mills,295SE2d 870 (1982).

The coroner, like all local elected officials in Richland County, was a personal friends of my first boss, Senator Isadore E. Lourie, or Chief as I called him. Chief was Speaker Pro Tem of the South Carolina Senate and Chairman of the Labor, Commerce, and Industry Committee that oversaw the administration of the workers’ compensation act. The coroner was present during the autopsy of Howard H. Marquard, a cotton mill worker who died suddenly of a massive heart attack. Mr. Marquard had worked in the card room of the Columbia Pacific Mills in Columbia, South Carolina where raw cotton was recieved into the mill. He suffered chronic, non-productive coughing fits and shortness of breath and had what was described as a “barrel chest.” What he suffered from was undiagnosed Byssinosis, more commonly called Brown Lung Disease, brought on by his years of exposure to raw cotton dust in the mill. The lay coroner commented in his autopsy report that Mr. Marquard had the worst case of brown lungs he’d ever seen. Senator Lourie promptly filed an occupational disease claim under the South Carolina Workers’ Compensation Act and the medical establishment went berserk.

We need to back up to help you understand the significance of this case to the working men and woman of South Carolina. The South Carolina legislature enacted the Workers’ Compensation Act in 1936 but, being mindful of the State’s economic dependence on cotton mills and the political power of the mill owners, deadlocked on whether to make occupational diseases compensable under the Act. It wasn’t until 1949, thirteen years later, that a compromise sufficiently draconian enough to prevent any cotton mill worker from ever receiving benefits was reached. The compensation killing compromise was that all questions concerning the existence or cause of a occupational disease, the degree of disability caused by the disease, and the proportion of disability attributable to noncompensable casues had to be referred to and determined by a Medical Panel of doctors hand picked by the cotton mill owners and appointed by the Governor. It would be another thirty-three years until the Marquard case was decided in 1982 before any cotton mill worker ever received any benefits.

When the medical professor of pulmonology at the Medical University of South Carolina, who also happened to be the chairman of the Medical Panel, heard of the coroner’s report, he fired off a lengthy medical report to the mill’s insurance company’s lawyers proclaiming no histological findings for byssisinosis had ever been documented in the medical literature and the coroner’s alleged observation of brown lungs was pure quackery. The defense lawyers promptly filed a motion for the case be referred to the Medical Panel for its kiss of death review. When it appeared the occupational disease claim for Mr. Marquard’s family required last rights, Senator Lourie assigned me to research the law and medical literature in search of a way around the Medical Panel. Unfortunately, my research indicated both the law and medical literature supported the referral.

But I was only few years out of law school and, not knowing any better, asked Chief, “Why didn’t you bring the claim as an accidental injury for his heart attack?” The Senator patiently explained Mr. Marquard wasn’t engaged in any work related activity that involved unusual strain, over exertion, or mental stress required in order for a heart attack to be compensable. With what little I’d learned about the insidious Brown Lung disease, I almost simplistically blurted out, “But his lung disease placed his heart under constant strain and over exertion.” The Senator’s instantaneous smile told me I might have hit upon something.

Senator Lourie went back to Mr. Marquard’s treating cardiologist and posed the question, “Well, doctor, did Mr. Marquard’s chronic obstructive lung disease caused by his employment place his heart under a constant strain or overexertion causing his heart attack?” “Why, yes,” the good doctor replied and Senator amended his claim to seek benefits under the accidental injury section of the Worker’s Compensation Act. A hearing was held and the Commissioner ruled Mr. Marquard’s heart attack was an accidental injury based on the treating cardiologist’s medical testimony, and, therefore, it was not necessary to refer his claim to the Medical Panel. The Commissioner awarded Mrs. Marquard and her children death benefits under the Act. The cotton mill and its insurance carrier appealled the decision all the way to the South Carolina Supreme Court and I was be assigned the task of writing the briefs responding to the medical establishment, business, and insurance industry’s briefs to reverse the decision.

Although I’d left to join the Steinberg Law Firm in Charleston when the case came up for oral argument, I wouldn’t have missed it for anything. Senator Lourie’s argument was magnificent. He attacked the very notion of the Medical Panel head on. He effectively argued the fact no cotton mill worker had ever been awarded benefits to sway the Justices. We, if I can claim some small part of the credit, won on every legal issue raised. Thereafter, an injured worker could elect to proceed under either as an occupational disease or accidental injury sections of the Act and an accidental injury claim did not have to be referred to the Medical Panel.

Marquard marked the beginning of the end of the Medical Panel that had so effectively thwarted the award of benefits in occupational disease cases. It also marked the beginning of my career expanding the rights of workers injured by occupational exposures to toxic chemicals, infectious diseases, and repetitive trauma. I owe a special note of gratitude to Senator Lourie because he, not only gave me my first job as a lawyer, but because he believed in my ability as a lawyer. He set me off on a very rewarding and satisfying career fighting for the rights of everyday people no matter how strong the forces were arrayed against them. After a forty year drought of compensation for occupational diseases, little old me, a lawyer still green behind the ears, helped the very first cotton mill worker in South Carolina to receive compensation for a Brown Lung related work injury.

Most young lawyers take municipal court prosecutor jobs to gain trial experience and leave as soon as something better comes along. But not Ira Grossman. He made a career out of being a municipal court prosecutor, first with the City of Charleston and then for the Town of Mt. Pleasant. He took his jobs seriously, seemingly believing he was personally responsible for keeping the city streets safe.  He could be a stickler sometimes but, at least with me, he always kept his word. In fact, Ira liked going up against the big-court criminal defense lawyers to test his mettle. He would call lawyers into his office to lay out his evidence against their clients. It was effective and often moved cases. Ira did this to me when I was representing my next-door neighbor who’d been arrested with DUI. Ira showed me the video tape of my poor client swaying back and forth as she tried to count backwards from nineteen. She was so drunk she started countings the wrong way and slurred, “One, two, three, oh fuck you.” Ira indignantly demanded to know what excuse I would offer and seemed genuinely surprised when I said all my client wanted was a quick and quiet guilty-plea for a fine. But his tactic of laying out his evidence didn’t always work.

My ex-father-in-law, a highly respected attorney, didn’t wish to sully his reputation representing a wealthy elderly client accused of flashing his penis at his just as elderly neighbor. Ira’s sense of propriety was as offended as my father-in-law’s. His complexion was livid when he called me into his office and laid out his evidence against my pervert client who he couldn’t allow to harass an elderly woman in his city. His evidence was a series of photographs which appeared to show my client standing in his open garage door flashing the woman.  It never occurred to Ira to question how it was the victim just happened to have a camera handy when the flashing occurred.

Ira laid out the pictures on his desk one by one. Here’s your client standing in his garage with his bathrobe on. Here he is looking across the way towards the victim’s home. Here he is opening his robe to expose himself to her. Here he is retreating back into his garage. And here he is at his back door. An open and shut case, or so Ira thought. Ira saw in the photographs exactly what he expected to see.

Lawyers have to learn to look at evidence from all different angles without preconceptions. To look for ways to turn seemingly damning evidence to your client’s advantage. I scooped the photographs off Ira’s desk and rearranged them like I was playing a hand in a card game. I laid the picture of my client at his back door first and said to Ira, “Here he is at his back door taking his wet bathing suit off before entering the house. He has a pool in his back yard and his wife won’t let him in with a wet suit dripping on her kitchen floor.”  Then I laid down the picture of him standing in his garage door looking across the street. “When he took off his bathing suit, he saw the flash of the victim photographing him from across the street and walked to his open garage door to confront her.” I laid the third photograph down and said, “Here he is having spotted her taking her pictures from her second floor, bedroom window.” “He was so shocked, he let his bathrobe fall open.” As I laid the fourth photograph down I said. “And, finally, here he is going back inside his house.”

Ira had the look of someone stupefied by a card trick but there wasn’t any magic about it. Ira just didn’t have all the facts and saw only what he expected to see. My client had told me he and the woman had been having an affair for quite awhile and she was mad at him because he was breaking it off. To prove his story, he produced tape recordings of hot and heavy telephone conversations they’d had. Nobody could make up sex tapes between 70 year retired Navy Captain and his 65 year old neighbor. 

They apparently had a rocky relationship and on one call he was telling her he wanted her back. “You think you own me. That you can treat me as you like and expect me to come crawling back to you. Well, not this time, I’m never coming back,” he said with a shaking voice followed by a long silence. Then, as if broken, my pitiful client cried out, “I am not afraid to beg for your love.” I had my doubts about his bathrobe accidentally opening up, but it wasn’t anything she hadn’t seen before. I didn’t need to tell Ira about the tapes because he’d already lost his enthusiasm for his case and agreed to a disorderly conduct plea with a modest fine to make it go away.

You don’t only learn trial skills in the Circuit Court. You learn them in every case, big and small. You learn them by taking the time to look at things from all angles with an open mind. There is no more important lesson to learn than how to present the most damaging evidence in the light most favorable to your client.    

Robert Haley, Esquire

A Columbian national studying dentistry here in Charleston at our Medical University of South Carolina was arrested for trafficking cocaine, first degree. He was facing a mandatory, minimum twenty-five years in prison and paid an astronomical fee to a V8 criminal defense attorney who convinced him pleading guilty and cooperating in exchange for leniency was his only option. He pled guilty and named all of the street level dealers he had selling cocaine for him. I snagged one of them who, despite facing the same draconian mandatory sentence, refused to snitch. His recalcitrance left me facing a trial without the slightest hint of a defense.

Bob Haley was the prosecutor. The Columbian dentist was to be our first trial  together but it wouldn’t be our last. What set Bob apart from other lawyers, in my eyes was his passionate caring for the law both as a prosecutor and a public defender. We last appeared together in a courtroom representing separate clients before Judge Brucie Hendrick’s pilot Drug Court where I was not surprised to learn my opinion of Bob was shared unanimously by her Honor, the prosecutors, public defenders, defense lawyers, probation officers, U.S. Marshalls, and court personnel alike.

Whenever in my practice I was confronted with a trial without a discernible defense, I would comfoirt myself remembering whenever you try a case in front of a jury, you never know what they’re going to do. Bob had already won the case by getting guilty pleas from the Columbian dentist and almost all of his co-conspirators, all of whom received lengthy prison sentences. In the process he shut down a major cocaine distribution network and forfeited a shit ton of money and property. The truth is Bob didn’t want to try the case against my client any more than I did but we were both stuck doing just that.

In his opening statement Bob did the only thing he could do and told the jury about the deal he had struck with the dentist. Before laying out the terms of the dentist’s deal, Bob told the jury his father was an ordained minister and said he viewed the Courts as the secular church. My ears perked up. After laying out the terms of the dentist’s deal, he told the jury sometimes you have make a deal with the devil to catch the bad guys. And, just like that, I had my defense.

I gave a pretty standard presumption of innocence and proof beyond a reasonable doubt opening statement but asked my law clerk to run by the library over the lunch break and check out a book containing a short story written by Steven Vincent Benét, The Devil and Daniel Webster. That afternoon I placed a copy of the book on the corner of the defense table where I knew it would catch Bob’s eye.

It did and, as the trial wore on, I would see Bob occasionally glance over at the book. He was an experienced prosecutor and was curious why I hardly cross-examined any of his witnesses, the other alleged co-conspirators. The dentist wasn’t stupid and kept the members of his drug ring separate and apart so the arrest of any one wouldn’t threaten his whole operation. My cross-examination consisted mostly of pointing out how the alleged co-conspirators didn’t have any direct dealing with my client followed quickly by a thank you, no further questions. Now the dentist, he was a different story, and had lots to say about my client. How he’s distributed one to two ounces of cocaine a month to my client over the past couple of years totaling well in excess of the trafficking first degree amount. I spent a good bit of time pointing out how he hadn’t said anything about where he got his kilos upon kilos of cocaine from. When pressed all he would say was he got kilos of cocaine from a guy named Jorge who worked at an unknown car wash somewhere in Miami. Bob was also curious why I hardly objected to any of his evidence. By the time closing arguments came around there was a whole stack of documents and photographs piled high on the clerk’s table. I especially liked the photographs of the dentist’s car with its secret compartment used to transport bricks of cocaine. What I didn’t see was any cocaine on the table. In fact, the only piece of evidence in the pile related directly to my client was the dentist’s little black telephone phone book which had the numbers of all the co-conspirators, including my client, in it. 

Bob gave a very convincing closing argument. So much so Judge William Howard commented, when I stood up to begin my closing argument, there wasn’t a person in the courtroom who didn’t think my client was guilty. I began my closing argument by saying my father wasn’t a minister and, if the truth be known, I don’t get to church near as often as I needed to but, I paused, I do know one thing – you never make a deal with the Devil because the Devil never gives you what he’s promises and you end up doing the Devil’s work. The jurors ears perked up.

I walked over to the mound of exhibits on the clerk’s table and, one by one, picked up each exhibit, mentioned how it related to an alleged co-conspirator who didn’t have any dealings with my client, and moved it to a new pile on the clerk’s desk. When I was done there was only the dentist’s little black book left in Bob’s original pile. I picked it up and turned to jury to simply say, you can’t send a man to prison because his name appears in someone else’s address book. It was the perfect transition to begin talking about the dentist and emphasizing all they had was the dentist’s word for my client’s guilt. No drugs, guns, or money were ever found connected to him. And then I walked over the courtroom bar, opened it, and loudly called Satan to the witness stand. I walked my imaginary Satan past the jury box pointing to his cloven hooves, pointed tail, and pitchfork tongue, before walking him over to the witness box and holding out the clerk’s Bible for him to swear on. I turned back to the jury and said in my best preacher voice, “I’m surprised the dentist wasn’t smoking already as he testified. The dentist promised to cooperate but all he gave you were his underlings, not the kingpins. Fat chance they’re ever gonna catch Jorge in Miami. Do what Nancy Regan says and, ‘Just say No.’” When I sat down Judge Howard said there wasn’t a person in the courtroom who would have convicted my client of anything.

The jury acquitted my client but there are still parts to the story yet to tell.  Another client detained in the jail told me there was one extremely irate Columbian in the jail the night after my verdict. He said the dentist threw a tantrum when he heard of the acquittal. Rumor was he threatened all manner of cartel vengeance upon his lawyer for telling him no lawyer could win the case. I took that as a mighty big compliment but, before I got too big a head about the acquittal, my client’s sister showed up in my office and said, since her brother had been acquitted, I should give back half his fee.

I laughed a doubled over kind of laughter and I told my client’s sister, if I’d know he was going to be acquitted, I would have have charged twice the fee. A good laugh wasn’t all I got. I got Bob Haley as a colleague and friend for all the years of my practice that followed.  We tried cases against each other and togerther and I never met a finer lawyer.

A death penalty murder trial is vengeance fancied up to make it seem fair and reasonable. In reality it is a tragedy for everyone involved. A tragedy tor the defendant whose life is forfeit over an act of horrific violence, for the victim whose life has been taken, for the victim’s family who will grieve his loss, and even for the family of the defendant who will be scarred just as deeply. A tragedy even for the lawyers who are appointed to represent the defendant. Their lives and careers will be indelibly changed. The only comfort comes from knowing, as with all things, some good will always come from it. It hard for me to write about my first death penalty murder trial so I will choose to write about the good I felt came from it.

You need to know the hard, cold facts of the senseless violence that gave rise to the trial. It was the night of June 18, 1980 when three men drove from Sumter to Charleston to sell guns they’d stolen in a gun store burglary. Not even the fence they tried to sell the guns to liked their looks and threw them out of his nightclub. Black hearted and empty handed, the three men headed back to Sumter. Wesley Copeland was driving and pulled into a North Charleston gas station. He went inside and robbed the station of just over $4,000.00. He took the two attendants, Bill Spain and Kenneth Krause, with them to a dirt road in Berkeley County alongside the railroad tracks. He made both men kneel in the dirt road before cold bloodedly shooting them in the backs of their heads. Continuing the drive back to Sumter, Copeland began worrying the two men with him, Danny Ray Coker and Sammy Roberts, would turn on him. He insisted they rob a second gas station and murder the attendant to prove their loyalty. They robbed the only all-night gas station in Moncks Corner, took the attendant, William Coakley, out to a secluded spot, and shot him in back four times with 44 wad cutters as he tried to flee.

The murders went unsolved until, four months later, Danny Ray Coker was caught committing another burglary. Facing fifteen years to life for the burglary, Danny Ray plea bargained for immunity on the murders in exchange for testifying against Copeland and Roberts. The Solicitor announced their arrests and his intent to seek the death penalty. The first good thing to come out of the case weas Peter D. Deluca, Jr. being appointedf to represent Roberts. Pete and I would become lifelong friends. It was week before Thanksgiving 1980.

We got our first inkling we were being appointed sacrificial props to lend an appearance of fairness when the trial was set for January 7, 1980. That gave Pete and I just seven weeks to prepare for a death penalty trial, with Thanksgiving, Christmas, and New Year’s falling in between. 

Adding to the impossible task already ahead of us, before Sammy was arrested, he was shot driving down a highway in Sumter. Someone pulled alongside, stuck a shotgun out the window, and blew half of Sammy’s face off. His jaw was wired shut and his head wrapped in layers of cotton gauze and bandages. He made muffled hissing noises sucking dripping spit back in between his missing teeth. His voice was so garbled it was almost incomprehensible. And, he had unimaginable bad breath.

Even though it was our first death penalty cases, we knew enough to immediately file a motion for continuance. Our suspicions as to our roles were confirmed when our motion was summarily denied.

The second good thing to come out of our appointment was our meeting David Bruck, a nationally recognized death penalty opponent, who came to share his knowledge and experience concerning death penalty trials. He spent an entire day giving us a crash course in all the ways a death penalty case is unlike any other. We were left overwhelmed by how much we didn’t know but without his help we wouldn’t have even known where to start.

A death penalty trial is really two back-to-back trials before the same jury. One to determine the guilt or innocence of the accused, the other to determine life or death. Lawyers appointed to represent a death penalty defendant are put in an untenable position by first, having to argue the defendant is not guilty of the murders, then, having lost all credibility when he’s convicted, having to ask the same jury for mercy. David Bruck recommended one of us take on the guilt or innocence phase and the other take on the sentencing phase to maintain a semblance of credibility. Pete took responsibility for the guilt or innocence phase, and I took responsibility for the sentencing phase.

Pete always carried his share of the burden and always stood ready to take on more. I think trying a death penalty case with another lawyer must be like going into battle. Soldiers, I am told, develop a special bond with the soldiers who fight alongside them and have their backs. Pete had my back and I knew I depended on him to have my back. Although, I don’t think we ever had another case together after the trial, every time I would run into him, in a courthouse or at a bar or social function, it was always like running into a long-lost brother.

David Bruck made a career helping other lawyers appointed in death penalty cases. Pete, like me, didn’t have a choice about being appointed. But, the third good thing to come out of the ordeal was the unexpected help received from others who offered it just out of the goodness of their hearts. The statute Pete and I were appointed under provided only  $2,500.00 to pay for costs. Oh sure, we could have filed a motion and waited for a hearing to request more, but we didn’t have time for that. Based on the judge’s unreasonable denial of a continuance, we had little reason to think he’d be inclined to help us. David Bruck said we’d need that $2,500.00 to pay for a forensic psychologist to offer mitigating evidence at the sentencing phase. That left Pete and I with no money to hire a private investigator. Fortunately, a private investigator I’d been working with on my other cases turned out to be a death penalty opponent and he volunteered his desperately needed services for free.

We needed a PI because our client claimed an alibi defense. He claimed he was in a motor vehicle accident in Sumter with, of all people, the mayor’s wife, late the afternoon of the murders and couldn’t possibly have been in Charleston meeting with the fence like the snitch said in his statement. Sure enough, Sammy was involved in the accident but that wasn’t good enough. There’s an old lawyer saying, you live or die by your alibi, so we had to make the trip to prove he couldn’t have been in Charleston selling guns like the snitch said. The police report gave us the time the accident was cleared and our investigator timed the trip to Charleston. As we suspected and the PI determined, it was entirely possible to have made the trip with time to spare driving the speed limit all the way. Worse, the investigator realized the accident happened as Sammy pulled out from a gun store parking lot. When the investigator checked inside the gun store, he learned Sammy’s sister had purchased a box 44 wad cutter bullets, the same bullets used to kill Mr. Coakley.

The investigator was nothing if not thorough. He also read where the snitch said they stopped at a grocery store in Goose Creek on their way to Charleston. He drove by the store timing the trip and noticed the times on the front door said the store was closed when the snitch said they stopped there. When he later went back to verify the closing time, the manager told him they were doing inventory the night of the murders and he specifically remembered the three scary looking men banging on the front doors he refused to let in.

That was pretty much how our investigation into the murders went. Our client said he was with his girlfriend the night of the murders but the PI couldn’t find one shred of corroborating evidence. Not one person who saw them or talked to them that night. Although we keep coming up empty, we didn’t leave any stone unturned. We visited all of the crime scenes, interviewed the medical examiner who performed the autopsies, talked to all the investigating officers who would talk to us, and reviewed boxes of reports, photographs, diagrams, and other records produced by the prosecution. Nothing ever hinted at a defense.

Fortunately, we had some luck when it came to investigating mitigation evidence, or so we thought. Sammy’s entire life was inexorably entwined with violence. His father abused alcohol and his family in equal measure. He taught Sammy violence by beating it into him. Sammy  had to fight his entire life, in and out of prison, but could never escape it. He was very close to his brother who was shot in the head and died bleeding out in Sammy’s arms. Half of Sammy’s face being blown off was a graphic illustration of the toll violence had taken on him. With David Bruck’s help we thought we’d hired a competent forensic psychologist to pull it all together for us. The problem was the psycholoigist was stretched as thin as we were, he was hard to get ahold of, and, when we did get ahold of him, all he would say is he was still conducting his evaluation. All we could do is trust the recommendation and hope he’d finish in time for the trial.  

While the Solicitor had a suite of offices in the courthouse, I lived in Charleston adding an hour and a half commute each way every day. Pete’s office was a good thirty minutes away in Goose Creek. We finally caught a break and prevailed upon the judge to give us a room in the courthouse to use as a base of operations during the trial.

Time inexorably ran out and Pete and I were looking at drawing a jury. We tried researching the jury pool but that proved discouraging.  Everybody knew and loved Mr. Coakley worked for the only black fuineral home and ran the only all-night gas station in Moncks Corner. He was knbown by everybody and helped many people in need. There was a drum beat of media coverage, none of it favorable, and the drum beat was ramping up as the trial  approached.

We knew trying to find jurors who weren’t prejudiced against the defendants was going to be near impossible but, on top of that, any juror selected for the trial had to be death penalty qualified. That meant they would have to be willing to impose the death penalty. Any potential juror opposed to capital punishment on religious grounds,  “judge not, lest ye be judged,” would be excused. We decided to try and exclude jurors who would always impose the death penalty, “an eye for an eye,” and wasted untold hours drafting questions to identify jurors who, having convicted the defendant of the intentional killing of another, with malice aforethought, would always vote to impose the death penalty. 

Monday morning arrived and first thing we were told the clerk intended to use a cute little girl, all dressed up in her Sunday best with a pretty bow in her hair, draw the names of prospective jurors from the box. I don’t know why, but it offended my sensibilities and tried to speak with the judge about it. Even though the judge acknowledged the statute called for a blindman to pick the jurors, he became upset with me and simply said the clerk didn’t have a blind man handy, so, what did I want, to delay jury selection until one could be found? Pete, always the more sensible and levelheaded of the two of us, took me aside and convinced me to just let it go.

A hundred names were drawn from the box and the jury selection process began that afternoon. Although the statute said the accused had the right to question prospective jurors, the way the statute was interpreted at that time was the judge would ask the questions. The first thing the judge did was inform us he had no intention of asking the questions we spent all that time drafting. He dismissed our questions as being duplicative to those he was already going to ask himself. Anybody who’s ever watched a courtroom drama on tv, except for the judge, knows leading questions that suggest the desired answer are never allowed. The first thing the judge told the first potential juror was they had taken an oath to  follow the law as he gave it to them. Once they agreed they would do that, he asked, if I told you the law says you have to consider imposing a life sentence, would you do that?  I jumped to my feet to object so fast I scraped my knuckles on the veneer of the defense table. From the look on the judge’s face you’d have thought I’d hurled an insult at him. His face turned as red as my bleeding knuckles.  The judge was so upset he called a recess. I later learned from one of the bailiffs he’d called Chief Justice Julius Ness to complain that I had objected to his questioning of a juror. I don’t know what they discussed but Judge Ness calmed him down and, between the two of them, they came up with a less obvious way to death qualify the jury. After that dustup, the judge breezed right through jury selection excluding all death penalty opponents and qualifying all death penalty enthusiasts over our continuing objections, duly noted and denied.  

Reading this you may think you can imagine just how bad the rest of the guilt or innocence phase of the trial went, but you wouldn’t come close. Imagine, if you can, Pete and I having to sit squished up together at one end of counsel table trying to escape the stench of Sammy’s breath. It was almost torture every time Sammy had something he wanted to tell us. Pete was sitting second chair and bore the brunt of Sammy’s horrible breath as Sammy leaned in to say something. If the stench was bad enough, you couldn’t understand what he was saying, so he’d have to repeat everything once or twice. And, imagine a couple of days into the trial, Pete and I were summoned into the judge’s chambers. He was furious and reamed us out because one of Sammy’s sisters had thrown a used tampon into the corner of the room we’d been allowed to use. For some unknown reason the judge somehow felt Pete and I were responsible to failing to control our client’s family. We fought back to keep the room but Sammy’s family were barred from using it after that.

Peter Them was appointed to represent Wesley Copeland and, let me just say, his courtroom style was unorthodox. At one point, he was questioning the investigating officer who accompanied us to the scene of Mr. Coakley’s murder. He asked the officer if he remembered being asked to walk off the distance from the edge of the road to where the Mr. Coakley lay shot on the ground. The officer said he did. Peter then asked and how many steps that was and the officer replied, I don’t know, I thought you wrote it down. The jury got a good laugh but their finding defense counsel comical was not helpful. Then, there was the complete disaster of Sammy’s alibiing girlfriend admitting on cross examination she’d lie to save Sammy. It was crash and burn at every turn.

Just to be clear, because Sammy could have committed the murders, didn’t prove he did. He maintained his innocence throughout the trial and we were obligated to do everything we could to prove his defense. It is worth remembering, aside from the testimony of the snitch, the only physical evidence tying Sammy to the murders was a single photograph of a single footprint of Sammy’s sneaker found at the scene of the first murders. It was the snitch who conveniently alerted the police to where they could find Sammy’s sneakers. Pete and I realized Sammy and Danny Ray, were roommates and both wore the same a size 10 and ½ shoes. At least there weren’t any other pictures when the State rested its case. There weren’t until the next morning when the ever-accommodating judge allowed the Solicitor to reopen his case to introduce a whole new batch of crime scene photographs. They were taken by a photographer for the Berkeley County weekly newspaper. The Solicitor claimed he had just learned about them. Never mind, none of the new photographs had been produced in discovery, the photographer for the local paper had obviously been given unfettered access to the crime scene.  We objected but, of course, the judge denied our objection ruling instead he would give us a few minutes to review the new photographs before letting them in. Our review didn’t take long before we found several new photographs showing two sets of size 10 and ½ shoe prints at the murder scenes.  I have often wondered if the Solicitor knew just how close he came to resting his case with a big hole in his proof that could have set Sammy free.

Poor Pete had very little left to argue in his summation at the conclusion of the guilt or innocence phase of the trial. He argued the unreliability of the snitch’s testimony. He questioned what the snitch had been offered in exchange for immunity on his three murders, two admitted armed robberies, and three kidnappings. The Solicitor simply scoffed at his argument and claimed, with a straight face, that no deal had been made and the snitch could get up to life in prison for the burglary. It wouldn’t be until after the trial that the truth would become known and the snitch was given the minimum sentence of fifteen years, eligible for parole in five. I don’t know if knowing the true nature of the deal would have made any difference in the outcome of our case, but I refuse to believe such a lenient sentence would have been given without the Solicitor’s blessing. The guilty verdict in the guilty or innocence phase of our trial came quickly.  We were given a little more than a weekend to prepare for the sentencing phase of the trial set to begin the following week.

Our problem was our death penalty forensic psychologist was nowhere to be found. He wouldn’t answer our calls. Out of desperation, we sent our private investigator to track him down and serve a subpoena on him to appear in court Monday morning but when Monday morning came around, the expert was nowhere to be found. I stalled for time which the judge begrudgingly granted while making sure the jury knew the delay was because we weren’t prepared. With the judge’s patience running out, the expert finally arrived. He had both a typed and handwritten report with him. When I tried comparing the two, they appeared to be the same. I called him to the stand and walked him through Sammy’s life of violence. When I thought he’d finished and I turned to asking him his opinions, the so-called expert interrupted me and said, wait there’s one more thing. Not knowing what that one thing the psychologist thought was so important, I should have cut him off and moved on but then the jury would have been left wondering what I was hiding. So I was forced to let the expert tell the jury what it was. He said Sammy had a prison tattoo on the back of his hand, in the fleshy part between his thumb and index finger, that reads 14 and ½ which stood for the “twelve fucking jurors who convicted him, one for the fucking prosecutor who prosecuted him, one for the fucking judge who sentenced him, and half  for the half-assed lawyer who defended him.” I don’t need any number tattooed on my hand to remind me of the fucking death penalty psychologist who certainly must have known how devastating this little tidbit of information, not included in his written report, was.

Another good things that came out of this ordeal was getting to know Coming Ball Gibbs, Jr., a well know Charleston lawyer who also opposed the death penalty. He came to watch the sentencing phase of our trial and would later become a mentor for me in my practice. We would work together on several cases. His knowledge and love of the law never ceased to amaze me. As he sat in the courtroom, I gave my closing argument which began with the simple statement, even on my best day, I would be inadequate to know how to measure the value of the life of another human being. Then I explained all the reasons that this would not be my best day. I talked about how physically and emotionally drained I was by the burden that had been placed upon me. I questioned my abilities as a lawyer, my faith, and my very belief in God’s mercy. Pontius Pilot washed his hands because there weren’t two witnesses to swear Jesus commited a capital offense. There was only one witness against Sammy, the immunized snitch. In the end, I was inadequate. I will never forget the two woman sitting on the front row of the jury who cried during my argument and still wonder to this day how they could have signed their names to the death verdict.

Unknown to me Coming Ball asked the court reporter for a copy of my argument and gave a copy to his friend, Molly Pratt. A few years later, I was looking to hire a new legal assistant and thought I was interviewing her for the job. It turned out Molly who was interviewing me. I guess I got the job because she became the best thing of all to come out the trial. Molly would become my assistant, my confidante, and my friend as we worked together for the next twenty-eight years.

Pete’s and my parts in this dance of death were over but, as in all such cases, the case was far from over. There would be a mandatory direct appeal, PCR, and federal habeus corpus reviews of Sammy’s conviction and sentence over the followingt eighteen years. I guess Pete and I can feel some measure of pride knowing there was never an allegation of ineffective assistance of counsel but it pales in comparison to the empty feeling your left with when your client is sentenced to death. In that time Danny Ray Coker would serve his sentence and be released. Wesley Copeland would die of a heart attack waiting on death row. Sammy alone would be executed by lethal injection on September 18, 1998. More money would have been spent on Sammy’s trial, appeals, and review proceedings than it would have cost to keep him in prison for the rest of his life. I remain a committed opponent of the death penalty. I know all too well the failures of our legal system. It is pure hubris to believe ours, or any legal system, could ever be foolproof enough to justify the taking of a life.

There is one other good thing that came out of this ordeal. I learned the hard way how to try a death penalty case. I gained invaluable knowledge and experience I would put to effective use not just in my second death penalty murder trial, but in every trial thereafter.  

It turns out this old trial dog may still have a few tricks left in him to teach. My son was just two years out of law school when we tried his first jury together.

            It was a motor vehicle wreck case. The wreck happened on May 3, 2015 at 2 o’clock in the morning. Our client had finished watching the Pacquiao-Holyfield pay per view fight at his brother’s house and was driving his girlfriend home. He lost sight of an SUV ahead of him on as it went around a bend in the road. Just as he rounded the same bend, he heard a large boom as a transformer exploded in a flash of light the blinded him. The streetlights went out and, before his eyes could adjust, he ran into a utility pole laying across the road. His car flew up in the air and came back down on top of the pole.  Dazed, he checked on his girlfriend while trying to figure out what he’d hit in the darkness. Slowly he pieced together that the SUV ahead of him had run off the road and hit the utility pole so hard it snapped in two with the top half falling across the road. As he climbed out of his car, he saw the other driver climb out the SUV, look at the wreckage, and flee the scene on foot without so much as, “Is anybody hurt?” 

            My client called the police and the responding officer ran the tags on the SUV. It was owned by a local event planning and equipment rental company and had not been reported stolen. Both vehicles had to be towed from the scene. The investigating officer put a hold on the SUV then kindly gave my client and his girlfriend a ride home.

            The next morning our client could hardly move his head. He had pain and numbness running from his neck, through his left shoulder, down his arm, into his hand and fingers. His girlfriend took him to the ER where they ran a CT scan, gave him pain pills and muscle relaxers, and told him he needed to see a neurosurgeon.

But his neck and arm weren’t what our client was most concerned about. He needed a car to drive to Miami in four days’ time to attend his granddaughter’s funeral. He dialed the number of the SUV’s insurance company the policeman gave him to ask what he needed to do to get a rental car. The insurance company was unmoved about his granddaughter’s funeral and said the SUV had been stolen from an event in downtown Charleston and they weren’t responsible. His protest the policeman told him the SUV hadn’t been stolen fell on deaf ears. “There’s nothing I can do,” the adjuster curtly told him as she hung up.

            Frustrated, our client looked up the number for the event company and called hoping to speak to somebody who could straighten things out. The receptionist was also unmoved with his granddaughter’s funeral and told him the SUV had been stolen out of their parking lot earlier on the night of the collision. “No, you can’t speak to anybody in charge,” she said before she also hung up on him. Our client decided to drive down to the event company’s warehouse to speak with somebody in person. When he arrived, he saw that the parking lot was fenced, had a locked gate, and a security camera. He knew the event company was lying but also knew he would need help.

I’m not sure how it is he came to my door, but I do know the majority of lawyers would have turned his case away. If the SUV was stolen, there wouldn’t be insurance coverage and no chance of a quick contingency fee. But I could see he was hurting, and the thought of turning him away never occurred to me. I was excited my son had passed the bar and put him in on the case.

            Truth is we didn’t have much to work with and sorting it out would take time. He would have to get his brother to drive him to Miami for his granddaughter’s funeral. After a long haggle, I got our client’s collision insurance company to pay the fair market value for the total loss of his car but that wasn’t enough to pay off his banknote. Fortunately, he paid extra for GAP insurance, and after more haggling got them to pay of the balance of his car note. That meant, although his car note was paid off, he didn’t get anything to to use for a down payment on a new car. He was left stranded with no car, the pain and tingling in his arm and hand, and unable to work as a drywall hanger. 

            He couldn’t catch a break. He tried to see the neurosurgeon he was referred to by the ER, but the neurosurgeon wanted $600 to even schedule the first visit. He didn’t’ have it. I arranged for him to see my doctor who does magic for me when my sacroiliac joint goes out and would agree to wait to get paid until I could sort the coverage issues out. Problem was, shen my doctor examined him and reviewed the ER CAT scan, he said my client needed an immedfiate MRI. I had to sign him up for medical financing at exorbitant rates so he could get the MRI. When my doctor reviewed the MRI, he asked when my client had prior neck surgery. Seems the MRI showed two levels of vertebra in my client’s neck were fused together. My client assured him he’d never had neck surgery but did remember they said he fractured his neck playing football his junior year in high school. He had to wear a hard neck brace for a couple of months but that was all the treatment he’d received. He played football his senior year and after high school joined the Marines completing boot camp and his tour of duty. Since then, he’d been doing sheet rock work for years without a problem, the need to see a doctor, or having to take any medicine for any neck pain. Unfortunately, as a lawyer, I knew this would just muddy up the waters both in terms of the treatment he might need and how an insurance company would evaluate his claim based on his “preexisting” neck problems.

My doctor was scared to touch him and referred him to the largest spinal surgery orthopedic practice in the city. They wanted $2,000 for the first visit and $2,000.00 for each epidural injection thereafter. Sure, they’d take an assignment on the case, but my client could see the writing on the wall. There wouldn’t be anything left for him out any settlement. We convinced my doctor to try less invasive trigger point injections in his office.
At last my client caught a break, the injections worked. The arm and hand pain and numbness almost went away. He could start back at work but soon learned he’d never be able to do sheetrock work again. It was just too heavy and too much overhead work.

            I filed a “John Doe” action against my client’s uninsured motorist (UM) insurance coverage, and they soon bellied up his $25,000.00 coverage. It wasn’t much but at least he could pay off his doctor bills, pay off the loans he’d taken out to keep food on the table, and scrap together a down payment on a new car. Normally, when you settle a UM claim, you assign your right to sue the actual driver to your insurance company. I made a special arrangement with my client’s insurance company. They agreed to allow me to pursue the company that owned the SUV on a deal we’d split any recovery: 1/3 for them (until their lien was satisfied), 1/3 for my client, and 1/3 for me.

            I’d like to think I’m a good lawyer, but I never stopped believing there’s a bigger hand working behind the scenes when justice is at play. We started catching more breaks during what we lawyer’s call discovery. The event company’s story about the SUV having been stolen began to fall apart. We learned the SUV had been given to an employee whose criminal record included multiple convictions and actual prison time for burglary, selling crack cocaine, and possession of a stolen gun by a convicted felon. His driving record was even worse. Over the years he wasn’t in prison, he’d accumulated a reportable accident, 7 speeding tickets, and 4 suspensions. The bottom line is the event company never should have entrusted him with the SUV in the first place. We also learned none of the other employees working at the warehouse that night saw him return the SUV and company’s security camera didn’t record him return the SUV before the wreck. Wait, it got better, the next day when the employee showed back up for work, his hand was all bandaged just like he’d been in a wreck. It turned out the event company and its insurance company just choose to believe the word of a convicted felon who had every reason to lie when he said he left the SUV parked on the street outside the locked gate with the keys in it before the wreck. On top of that, he just stopped coming to work after he was questioned about the SUV.

            I understand it may sound like we now had a slam dunk case, but South Carolina law strongly favors corporations. Not only would we have to prove it was their employee who was driving the SUV, we’d have to prove he was acting within the “course and scope of his employment in furtherance of” the event company’s business for them to be liable. We could put up a strong circumstantial evidence case by proving the company lied about what happened, didn’t follow instructions from the police, withheld material evidence from the police, and destroyed potentially damaging evidence including an open liquor found on the floorboard of the SUV. Countering this evidence, however, the event company’s lawyers presented his time clock record showing he’d clocked out of work at 11:00 o’clock, 3 hours before the collision.

            At mediation before trial the insurance company offered a measley $30,000 which we turned down. As fate would have it, we were the #1 case for trial back in March of 2020 when Chief Justice called a halt to jury trials because of COVID. My client and Logan would have to wait 15 months to try the case. It probably wasn’t a good idea to give semi-retired me time to fine tune my trial strategy. I must have written and rewritten my opening statement a hundred time trying to make it pop. “… we are here today because Art of Creating, Incorporated, doing business as OHH! Events turned a blind eye to what it’s employee, Brandon Daniels, did, tried to blame a fictitious thief for his recklessness, and refused to take responsibility for the harms and losses he caused to my client, … I am confident taking the facts and circumstances together will firmly convince you what should have been plainly obvious to Art of Creating back then. The SUV wasn’t stolen, it was being driven by their employee, Brandon Daniels, who recklessly drove it off the right side of Accabee Road and crashed into the utility pole, then fled the scene without so much as an “is anybody hurt?’ Would that were all we are here trying this case about today, it is not. We are also here today because evidence we’ve since uncovered will show, had they bothered to ask, Art of Creating would have known Brandon Daniels lacked the competence, character, and judgment to drive their SUV on streets, highways, and bridges of our community and never should have entrusted him with the SUV in the first place. We are also here because Art of Creating lied about what happened, disregarded the instructions from the police investigating the wreck, withheld material evidence from the police, and destroyed material evidence before the police could examine it. Art of Creating not only did these things, it knew better, did it anyway, and couldn’t have cared less about my client… You will be the voice of justice in our community. Speak it loudly.

Hold on, hold on, I hear you wondering, so where’s my son, Logan, in all this. I decided for his first trail Logan should do the direct examination of the investigating officer. People think cross examination is the hardest thing a trial lawyer does. It’s not. Trying to tell a coherent story without asking leading questions takes skills you can only learn in a courtroom over years and years. Logan and I worked long and hard on his questions for the officer. He was eager to learn, willing to write his questions out, practicing saying them out loud, over, and over, until he had the confidence to stand up before the jury and examine his first witness in a courtroom. The first lesson Logan learned was to work hard as you can preparing so you don’t need to be fast on your feet in a courtroom. I told him my father’s airplane, N75 Juliet Gulf, had a plaque on the control panel, “The superior pilot uses his superior judgment to keep out of situations where he needs his superior skills.” At one time during Logan’s examination of the officer, I glanced over at the judge, an old friend of mine, and caught her smiling at me as I was smiling with pride how well Logan was doing. Still, no matter how good a job you do preparing, direct examination always comes off flat after the defense attorney beats up your witness on cross examination.

To make matter worse, in this case I had to call the owner of the company as my witness to establish my case for negligent entrustment. That meant her lawyer would get her on “cross” and could ask her leading questions. Her lawyer ran with the ball I’d given him putting his whole case in through her. Then he did what he thought was the smart thing and rested his case without calling any additional witnesses for me to cross examine.

            The judge called the lawyers back into chambers for a charge/arm twisting conference. The Judge bluntly said she thought the case was either going to turn out to be a big fat zero or a big fat verdict, she didn’t’ know which, and encouraged the parties consider a settlement. The bailiff’s thought I ‘d proven the company’s employee was driving the SUV but half of them thought he’d stolen it so the company shouldn’t be responsible. We told the judge we’d accept $60,000. After about a half hour, the defense lawyer said the best he could do was to get the company to keep their mediation offer of $30,000 on the table. “Okay,” the judge sighed, “then we’ll argue and charge in the morning.” 

            A lawyer has lots of time to craft an opening statement in every case but rarely has the same luxury when it comes time for closing argument. The judge cut us a huge break giving us until the morning to do our closing argument. I decided to let Logan do the first closing. He was nervous as a cat in a dog pound. I’m sure there are as many ways as there are lawyers to prepare for a closing argument, but I’ve always found the best way is to bounce ideas back and forth off your co-counsel, picking out the good ones, and tossing the duds. Once I got Logan loosened up, he did great with the back and forth.

He came up with a very creative idea how to frame our his arguments in his opening on the facts and law. A jury’s job is to find what’s more likely true than not true. Logan came up with the idea of contrasting the points we raised against the points opposing counsel raised.  With his hands stretched out like the scales of justice, Logan would rhetorically ask, “Is it more likely true the owner’s husband didn’t report the vehicle was stolen to the police or as he said that the three police officers he reported it to just ignored him and never filled out a report?” Pretty insightful for a novice trial lawyer. He did this over and over with each point in contention. What do you know, Logan taught me a new trial trick.

            But we were still struggling how to overcome opposing counsel’s argument the employee clocked out three hours before the collision occurred. Opposing counsel carefully laid out this argument during the testimony of the owner who said they had a state-of-the-art computerized time keeping system. A system that required an employee to be present on their property and logged into their wi-fi network to clock in or out. Fool proof. Well, it seems I for one was just fool enough to have fallen for this argument. Here’s where Logan really shined and saved the case. Logan piped up, “Dad, this is BS. I worked at a place that had the same kind of system and me and everybody else could log on and clock out from virtually anywhere. Not only that,” he added, ”the boss knew it and would regularly log on to change our entries to prevent what he called ‘abuse of the system.’”

We pulled out the time record they were relying on and, WHOA, what did we discover? Way over in the last column to the right side of the row on the computer printout that said our client clocked out three houses before the wreck was an entry that said, “manual edit.” I’d have never thought to look if it hadn’t been for Logan. Logan had found the smoking gun that changed everything. They hadn’t produced whoever it was who edited the entry to explain how or why it had been edited. They didn’t have any evidence he’d clocked out that night three hours before the collision.

I got to teach Logan perhaps the most valuable lesson of the trial. You see, the plaintiff gets to go first in closing arguments, then the opposing counsel get to argue, and, finally, the plaintiff gets the last argument. The lesson he had to learn was, if you have a killer argument, you need to hold it back until your final argument so opposing counsel doesn’t get a chance to try and explain it away. It was hard lesson for Logan because he was making the first argument and wouldn’t be able to tell the jury about the smoking gun he’d found.

            In the morning, Logan, stood before the jury for his first time to make a closing argument. Sure, he was nervous and stiff, at least until he got going. Uncomfortable having to read his argument but too unsure of himself not to. He did great with his which is more true, than not true, skillfully highlighting the weaknesses in opposing counsel’s so called facts. When Logan finished, opposing counsel stood up and couldn’t have fallen into the trap we’d set for him than if he’d jumped into the Grand Canyon. He got up on his high horse and pranced around in front of the jury waving the computer printout. “Ladies and gentlemen, what better evidence could there possibly be that Brandon Daniels was no longer working for the event company than he clocked out THREE HOURS before this wreck ever occurred.” Just so the jury wouldn’t’ forget, he went into detail repeating all the testimony about the infallible computerized time clock system. After that he apologized saying he almost hated to waste the juror’s time discussing damages but couldn’t help nickel and diming the damages, reminding the jury several times he already had a broken neck, and snidely commenting his drywall wages were, well, sketchy at best. He finished with the defense lawyers’ predictable, “We feel bad for his troubles but we’re not responsible.” Before he sat down, he mentioned the Elder Holmes would have the last word and he hoped the jury would stand up for his client and not be swayed by passion or sympathy.

            I rose slowly, put my hand my client’s shoulder to reaffirm the connection, and walked to the podium as I quipped, “So now I’m the Elder Mr. Holmes?” That got a good chuckle out of the jury, always a good sign. I used the opening to connect with the older jurors. Say what other lawyers will about not wanting to put old folks on juries, there’s a question the judges ask in jury qualification that goes something like, “If you’re over the age of 65 years and wish to be excused, you can claim an exemption from jury duty.” I’ve noticed none of the older jurors ever ask to be excused. The younger ones on the other hand line up with all manner of excuses to be excused. None of the older jurors asked to be excused from our trial and I was happy to seat an older woman. I figure older women have given birth and raised children and put up with their husband’s shenanigans all their lives giving them just the kind of life experience I want in a juror. So, after the laugh about being the Elder Mr. Holmes, and knowing how moving my client’s testimony was about wanting to attend his granddaughter’s funeral, I opened with, “I’ll tell you one thing I’ve learned in my elder years. There is nothing more precious on God’s green earth than a grandchild.” My woman juror sitting on the back row of the jury almost cried and I knew then I had at least one juror I could count on.

Well, I won’t prolong this story repeating my closing argument verbatim but will say I too reminded the jury, in detail, of all the testimony about the so-called foolproof time clock system. As I spoke, I noticed out the corner of my eye opposing counsel starting to get nervous. I could see him looking around sensing something was coming. I reminded the jury, again in detail, of the argument opposing counsel had made about his irrefutable evidence the employee had clocked out 3 hours before the wreck. I slowly turned and pointed towards Logan as I explained to the jury it was Logan who found what we needed to refute the irrefutable. The jury couldn’t help but see the big smile now on Logan’s face as he beamed with pride. Then I turned back to the jury and dropped the bomb like Slim Pickens in Dr. Strangelove that blew the defense’s case into oblivion. I put the time sheet up on the tv screens all over the courtroom, blew it up big as I could, and pointed out the entry “manual edit.”

            The judge’s charge, well, it did seem decidedly more friendly to the plaintiff than before the defense lawyer told her he couldn’t come up with any more money. She gave extra emphasis on the charges dealing with awarding compensation for mental anguish and suffering. Still, as the jury retired to its jury room to begin their deliberations, I felt the butterflies in my stomach. It reminded me to teach Logan, if he ever got to not feeling those butterflies in his stomach in a courtroom, he’d know he was in trouble.

            If I told him once, I told he five time, “No matter how this turns out, I’m proud of you for standing up before that jury.” Later, Logan would tell me my telling him that was making him nervous we were going to lose. I’ve waited on I’m sure hundreds of juries over the years and still find it nerve wracking. Waiting on a verdict, Logan and I waited in Washington Park across the street from the courthouse. An hour passed and I told Logan it was a good sign. A jury coming back too quickly is usually a bad sign for the plaintiff. An hour and a half and we got the call. I told Logan once again how proud I was of him no matter how it turned out.

The first hint we weren’t going to lose was when the bailiff waiting at the courtroom door was smiling as we walked up. The bailiffs know better than anybody what the jury’s thinking. The second hint was when the jurors entered the courtroom to deliver their verdict, they were all looking our way, not toward defense counsel. And the third hint was the judge reading both pages of the jury verdict form. If the jurors had answered any of the first questions in the negative, they were told to stop because they’d reached a verdict for the defendant. Questions like “Do you the jury find that the employee of the Defendant was driving the SUV when it hit the utility pole? Yes or No. If your answer is no, stop you have reached a verdict for the defendant.” The big one was the third question at the bottom of the first page of the verdict form. “Do you find the defendant’s employee was acting within the course and scope of his employment in furtherance of the defendant’s business when the SUV hit the utility pole. Yes or No. If you answer is no, stop you have reached a verdict for the defendant.” The judge reading the second page was a big hint. We held our breath and waited, “We the jury find for the plaintiff in the amount of One Hundred and Fifteen Thousand Dollars, actual damages. We the jury find for the plaintiff in the amount of Twenty-five Thousand Dollars punitive damages.” Our client put his head on the table and began crying. Logan told me later he liked the client so much he’d have felt terrible if the verdict had gone the other way. The last lesson I could teach him was to never stop feeling that way about your clients because it will make you work harder preparing for trials.

            Logan’s first trial was over, but the celebration would last well into the night. We picked my wife and his fiancée up, or should I say my wife insisted we pick them up so she could be our designated driver. We shared two dozen oysters and chilled shrimp appetizers, the freshest grilled fish, and fixings at one of our favorite seafood haunts as we raised toasts and told the story of our victory.

There’s an important lesson Logan will still have to learn on his own. While there’s no better feeling than winning a big verdict in a hard-fought case, there’s no worse feeling than losing. There’s so much more I wish I had time to teach Logan but, as with everything, you teach your children what you can then you have to let them fly on their own. My mother and father taught me much I hope I have passed on to my children. Sure, Logan’s still green, stiff, and unsure of himself but he’s taken his first steps in his father’s shoes. I always had confidence he would become a good lawyer in his own right. I will treasure the memory of being there with him for his first trial as long as I breath.

I was appointed to represent Uncle Rudy who was charged with three counts of criminal sexual conduct with minors in the first degree. He stood accused of raping his three young nieces during a holiday visit with his sister. He would take the girls for a ride in his pick-up truck, pull off on a secluded road, and sexually assault them. One of the girls told their mother, and she immediately reported Rudy to the police. He denied he did it and demanded trial by jury. I was appointed to represent him in the Dorchester County Court of General Sessions.

The week before trial the Assistant Solicitor casually mentioned she’d located Uncle Rudy’s now grown female children in Ohio and she would be calling them as witnesses to testify he’d done the same thing to them when they were his nieces age. She excused her delay in informing me of this by claiming she didn’t want to tell me about them until she was certain they would come to South Carolina to testify. Gee, thanks.

I should have bit my tongue as soon as I said to myself, “What could possibly be worse?” What could possibly be worse than having to cross exam three sweet, innocent girls about being sexually molested by their uncle. I tip toed through my questioning of the girls trying hard not to alienate the jury any more than they already were. I could be a little more direct with Uncle Rudy’s grown daughters but they were hard as nails and rightfully pissed off at him for doing the same despicable things to them when they were growing up. There are a lot of things lawyers have to do they aren’t particularly proud of but what could possibly be worse than having to cross-examine sexually abused children?

Most people don’t know it but there’s a whole cottage industry that’s grown up around sexually abused children. The police in Dorchester County refer all abused and molested children to the Lowcountry Children’s Network for a complete forensic evaluation that includes a videotaped interview conducted by a trained staff member and medical examination by a licensed physician. The testimony of the interviewer and physician isn’t legally supposed to be offered merely to vouch for the credibility of the children witnesses but that’s exactly the way it comes across to the jury. Normally this show and tell by the child abuse “experts” is the kiss of death for the defendant in the courtroom.

Everything was going according to the prosecutor’s playbook, with Uncle Rudy’s conviction becoming more and more certain, until the Assistant Solicitor called the expert child abuse doctor to testify as to the results of her physical examinations of the girls. The easiest way for a witness to falter on the witness stand is to make the mistake thinking the trial is about themselves and that’s exactly how the Assistant Solicitor’s case began to fall apart. This physician felt compelled to drone on and on telling the jury just how smart she was, all about her education, training, experience, and tireless dedication to fighting against the scurge of child sexual abuse. Everything was “I this” and “me that”, all about her. Finally, sensing the jury was drifting, the Assistant Solicitor got around to asking the good doctor about the girls assaulted in this case. The first girl, the oldest who was nine, had an intact hymen but it had a hole in it. Although nobody asked, certainly not me, the good doctor felt obliged to disprove the hole in her hymen could have occurred by the girl masturbating. Oh, yes said the expert doctor, as she explained, there are studies upon studies establishing that girls masturbating doesn’t cause holes in hymens. I was sitting at counsel table and couldn’t help but notice the women on the jury looking at each other and shaking their heads. Not that I knew anything about it, it seemed the women juror didn’t believe nine year old’s masterbated all that much. The second even younger girl, aged seven, had an intact hymen and, again, although nobody asked, the good doctor felt compelled to explain that didn’t disprove sexual abuse. She conveniently revealed she had a rubber band around her wrist which she stretched while testifying the hymen could stretch like a rubber band. By this time I was focused on the women jurors reaction and, again, they shook their collective heads no, a seven year old’s hymen doesn’t stretch like a rubber band. The youngest, third girl had a broken hymen and the good doctor didn’t feel the need to bolster her testimony with premium grade bullshit. One thing you can say for the good doctor is she was rock solid on cross examination and made sure, whatever question I asked, she gave me a long, drawn out answer she had rehearsed to another question of her own choosing. The best I could do is finally get the judge to instruct the doctor to answer the questions asked. Certainly, your honor, she said with a beguiling smile as if her testimony was all a big game.  

Uncle Rudy wisely decided not to testify and I won’t bore you with trying to reconstruct the feeble argument I made on his behalf in closing. I was soon to find out what could possibly be worse than having to cross examine those three sweet, innocent girls. The jury came back and convicted Uncle Billy of sexually assaulting the youngest child with the torn hymen but hung up on the other two girls because they diodn’t believe the good doctor’s expert testiomony. So, what could be worse? Having to try the case again for the two older girls the jury hung on.

Fortunately for everyone concerned, the girls, their grown up cousins, their parents, even the disappointed Assistant Solicitor and myself didn’t want to retry the case. The solicitor agreed if Uncle Rudy pled guilty to the other two cases, he would receive concurrent sentences. He was about to be maxed out on the one count he was already convicted for anyway, so it didn’t make a whole lot of difference to him. The plea bargain benefit he received was, if he’d been convicted of CSC with a minor, 1^st degree, for a second or third time, he’d have been facing mandatory life without parole under a newly enacted statute.

Is there any lesson to be learned from this fiasco? Yes, for any witness, expert or otherwise, you intend to call to testify, remind them in no uncertain terms the case is not about them. It good advice for you to remember as an attorney whenever you feel like jumping up on your high horse during a trial. It’s not about you either.  

Jack Swerling, Esquire

This time of year I think about the Valentine’s Day defense in a murder case I was once part of. An upstate doctor, known for bragging about his gold coin collection, and his wife were brutally murdered. The police had no clues and the murders faded from the headlines without an arrest until, almost a year later, a snitch bargained his way out of a burglary by offering up our client as the perpetrator of the murders. Our client was arrested in Philadelphia, extradited to South Carolina, and, considered to be real badass, was being held pending trial in the notorious Central Correctional Institution (CCI) in Columbia.

            Lead defense counsel, Jack Swerling, sent me over to CCI to see our client, tell him about his upcoming trial date, and that I was headed up to Delaware to get the records he had told us about. To get to CCI, you had to park in lot across US Highway 1 and walk a catwalk over the highway to the prison gate. It was my first time going to CCI so I couldn’t help but notice how much it looked like an old castle complete with battlements on top of its walls. Then I reminded myself  General Sherman had quartered his horses in the very same building on his march to the sea during the Civil War.

Once inside the guard house, and once you established you were indeed a lawyer, on official legal business, and had, in fact, called to schedule an inmate visit, you would be let in to the prison and assigned a guard to escort you to the attorney conference area. Walking down the hall my escort pulled me aside so an inmate later identified as Pee Wee Gaskins could pass by. I didn’t know who he was but sure noticed the way the crowd parted in the hallway when he walked by. I was escorted to an attorney conference where I met with our client . He was seated behind a small desk with his hands handcuffed through a loop in the metal desk. I was struck that he seemed completely unfazed about being held in CCI.

I don’t think he said three words to me as I nervously rattled off all the things I been instructed to tell him. I told him I had been given the task of taking an Order signed by a judge here in South Carolina up to Delaware and of finding a judge up there to countersign the Order so I could get the Clerk of Court in Delaware to issue a subpoena for the auto repair shop records we wanted to get copies of. I was glad he didn’t have any questions when I finished because I had no idea what I was doing. I buzzed for the guard come let me out and take me back to the gate.

            Our client pled not guilty to the murder and claimed the snitch who’d implicated him was originally from Philly and would periodically bring stolen property up from South Carolina to fence it. One time, the snitch thought he’d hit it big time and brought up a whole tractor/trailer full of stolen cigarettes. The snitch gave the keys to the truck to our client who promised to come right back with the cash but ripped him off instead. He said the snitch was just trying to settle the score by blaming him for the murder the snitch probably committed.

The snitch’s story was specific, too specific. He said he told our client about the doctor’s coin collection and our client drove his light blue Cadillac DeVille down to South Carolina from Philly to rob the doctor. Our client said the snitch was lying because his Cadillac was in the shop getting a new windshield on the day of the murders. He knew this because he’d forgotten to buy his girlfriend a Valentine’s Day present so she put a brick through the windshield. In Delaware all cars have sequentially numbered inspection stickers on the windshield. When a new inspection sticker is issued, it has to be entered in a master record book the shop owner was required to keep. I was being sent to Delaware to fetch the official records which would prove our client’s car was in the shop at the time of the murders and our client’s innocence.

            I felt like a real lawyer flying a jet to Philly, renting a car on the law firm credit card, and finding my way to the Kent County Courthouse in Deleware.  And, there I found a welcoming Judge willing to sign off on the order. I felt like I’d done the impossible. The rest of the trip was easy just following through getting a subpoena from the Clerk, driving to the repair shop, and picking up certified copies of the official records. As I flew home later that same night, I dismissed the thought it was almost too easy.

            My job was done. It was for lead counsel to decide how best to  use the documents during trial. Watching him, I learned the importance of boxing a witness in on cross examination. “Boxing” is the methodical blocking off of all avenues of escape a witness may have before springing a trap on cross examination. It not only prevents a weasling witness from getting away from a lie, it dramatically enhances the impact of the evidence he’s lying you’re about to spring on him. Lead counsel began by locking down the snitche’s story. “You’re sure it was February 17^th?” “You’re sure he drove down from Philadelphia and got here on that day, February 17^th?” “The night of the murders?”“Left to go back home the very next day, February 18^th?” “You’re sure he was driving his blue Cadillac DeVille.” “That was the car he drove down from Philly?” “And that was the car he drove when you took him to the doctor’s house to do the robbery?” “It was just you and him?” “Nobody else saw either him or the car that night or the next day?” “So we just have your word for it?” The dimwit snitch had no idea what was coming. Once he was locked down, lead counsel began introducing the official documents I’d broght back from Delaware. He walked the jury through each step of my journey from getting the order signed here in South Carolina, to getting it countersigned in Delaware, getting the Clerk to issue the subpoena, and retrieving the certified copies of official documents from the repair shop. It was like the music from the movie Jaws was playing in the background, dun dun dun dun dun dun dun, the anticipation growing until the jury already knew there was a shark in the water circling the snitch before lead counsel introduced the documents proving our client’s blue Caddilac was in the shop the night of the murders.   

The thought it might have been fairly easy for someone to have arranged to have the records available if needed them never crossed the jury’s mind. They acquitted our client of murder to the hushed astonishment of the courtroom. An acquital in a grisly murder case, involving a beloved doctor and his wife, by an out-of-state defendant, is an exceedingly rare occurrence. I vividly remember our client, bigger than I remembered him in CCI, stood up, shook lead counsel’s hand, and walked out of the York County courthouse door never to be seen or heard from again.

It was not my place to say whether our client may have been a made man in the Philadelphia mob capable of fabricating his Valentine Day defense. I was working as an associate of the law firm presenting our client, doing what I was instructed to do to. What most struck me was the realization how easy it could be for a person to be convicted of murder based solely on the word of a snitch. No fingerprints, no forensic evidence, no eye witnesses, no gold coins, nothing but the uncorroborated word of a snitch. But for his girlfriend smashing his windshield out on Valentine’s Day our client probably would have been convicted.

Jay Gouldon, Esquire

Washington v. Whitaker and City of Charleston, 451 S.E.2d 894 (1994).

Josephine Washington worked in the laundry of the Mills Hyatt House Hotel for over twenty-five years. She stood barely five feet tall but carried the weight of her entire family on her shoulders. She lived in a small, public housing apartment at 37H Flood Street with her two daughters and two grandchildren. Late one night there was a knock on her door. Her daughter, Collette, opened the second story bedroom window to ask who it was and a voice from the shadows below asked for “Dean.” Collette said Dean lived next store as Josephine opened the front door. She was pushed back inside by undercover policemen rushing into her apartment. They ordered Josephine to gather her family into the living room. Detective Gregory Whitaker handed her a search warrant in which he attested that he’d witnessed a confidential informant purchase cocaine from a man named Dean at 37H Flood Street. Josephine’s protest the police were in the wrong apartment house fell on deaf ears as they ransacked her home. They didn’t find any drugs, or any evidence of drug activity, but Detective Whitaker decided it would be necessary to strip search the women and children in the apartment anyway.

Lawyers today too often associate other lawyers for referral fees. They’ll refer clients to other lawyers for half the fee. This practice turns human being clients into commodities and lawyers into hucksters just out for a quick buck. I was taught to associate other lawyers on cases to learn from their experience and to enjoy their camaraderie. I associated Jay Gouldon on Josephine’s case because he had a sharp legal mind, experience handling civil rights cases, and I knew we would enjoy working together on the case. It soon became apparent I’d made the right choice as Jay quickly taught me there is a legal mine field you have to navigate to bring a civil rights case to trial.

Cases start with good pleadings and Jay’s experience enabled him to draft a solid complaint against the City of Charleston and Detective Whitaker. It was as if there were two completely different cases, with completely different elements of proof and damages, being pled at the same time. As to the City of Charleston, we had to prove the City was deliberately indifferent to Josephine’s constitutional rights. As to Detective Whitaker, we had to prove he violated Josephine’s clearly established constitutional rights. Sounds straightforward but these standards turn out to be illusive in actual practice. Jay tried to find another case in which police officers had acted in such an unhinged manner but couldn’t. All he could find were appellate court cases allowing strip searches under very limited circumstances, such as when a person is being lodged into a jail. Jay masterfully argued, since none of the recognized circumstances allowing strip searches existed, the strip search of Josephine and her family was clearly unconstitutional. Jay won the argument at summary judgement, but it was sobering to realize how easy it could have been, and too often is, for a judge to toss an egregious civil rights violation simply because the exact thing never happened before. Worse than that, to realize since first impression cases are routinely dismissed on this ground, they can’t establish the constitutional violation for the next case, no matter how often they occur.

With Jay’s help we finally made it to the Court room. I often tell people, if they see me in a courtroom, I either look like I’m a really good lawyer or a really bad one. Like a really good lawyer if I have a case so strong the insurance company can’t offer enough to settle. Really bad when I have a case so weak the insurance company won’t offer anything to make it go away. Most cases fall in between and are settled long before trial. Josephine had one of the first kinds of cases that made Jay and I look like two of the best trial lawyers ever to grace a Charleston courtroom but, if the truth be known, we were just bit part players and it was always Josephine who was the star.

You get breaks in a courtroom and the breaks in Josephine’s case started falling our way right from the start. Detective Whitaker and his undercover narcotics unit showed up late for jury selection and looked more disheveled than the Keystone Cops. Then the City’s defense counsel decided to argue in his opening statement, since the search warrant was valid, strip searching the woman and children was perfectly legal. It was as if he was arguing Josephine and her family should be thanking the officers for trampling their rights rather than suing them.

As a general rule, a lawyer should resist trying to tell witnesses what to say. Lawyers aren’t movie directors and witnesses are seldom actors who can learn a script. If you tell a witness what to say, it will come across for exactly what it is, practiced and insincere. When you have a client like Josephine, you put her up and stay out of the way as she tells her story. Josephine spoke in simple and plain words the jury understood. She was proud of her family and fiercely defended their honesty. She walked the jury through the events of the night her home was raided without embellishment using short declarative sentences in the present tense like the raid was happening as she testified. The jurors were captivated and believed every word she said.

Towards the close of her direct examination, I asked permission to call Josephine up before the jury to demonstrate what the police officers did. She stood before the jury and demonstrated how the police had her lift her pendulous breasts so they could look beneath them for drugs. Then, she turned around with her back facing the jury, bent over, and grabbed her own buttock with both hands before stopped suddenly, twisting her her head back around facing the jury and said indignantly, “… and they looked right up my directum.” As good a lawyer as I think I may be, I would never in a million years have thought to say it that way. And her words left everyone knowing just how degrading the strip search was.

Good lawyers lay the groundwork for an appeal at the same time they try a case. Some of the hardest parts of putting Josephine’s case in was putting in the dry and tedious City policy and training manuals which were every bit as boring as they were necessary. Jay did a masterful job presenting the evidence we’d need later to win the appeal.   

When it was the City’s turn to put up its case, the more Detective Whitaker tried to bolster his affidavit he witnessed the confidential informant purchase drugs from 37H Flood Street, the more it became obvious he was too far away and it was too dark for him to see what apartment his informant went to. The more Detective Whitaker tried to justify what they did to Josephine, her daughters, and granddaughter, the more indefensible their position became.

Realizing the officer’s testimony was going down in flames, the City’s attorney decided to call for help. He called the Magistrate who signed the warrant to emphasize the warrant authorized the search of the apartment and all persons found therein. That exploded in his face when, the trial judge allowed me to ask if the Magtistrate would have signed the warrant if Detective Whitaker had said he planned to strip search any grandmothers, mothers, and children in the apartment. The Magistrate emphatically said no. Undaunted, the City’s lawyer decided to call Captain Rubin Greenberg, Charleston’s celebrity police chief, in an attempt to save the case.

Reductio ad Absurdium is a form of argument every lawyer needs to learn. You use it to impeach and contradict a witnesses’ testimony by reducing it to it’s absurd conclusion. Chief Greenberg felt compelled to justify strip searches to keep officers from being injured or killed by concealed weapons. “So pat down searches wouldn’t be enough?” “No, suspects can conceal guns or knives beneath their genitals,” Chief Greenberg testified in all seriousness. I couldn’t help but notice the Sheriff’s deputies providing courtroom security began were walking around the courtroom bowlegged cracking jokes about concealing pistols under their pistols. “And, of course,” I asked, “that means you have to search baby carriages too?” “Definitely, suspects hide drugs, guns, and all kinds of contraband in baby carriages all the time,” he replied with certainty. “And, what about bedridden grandmothers, would you have to strip search them too?” I asked as the light went off Chief Greenberg’s credibility had hit a dead end. The theme of the closing argument became it is never okay to strip search a bedridden grandmother.

The jury agreed and awarded Josephine and her family, $242,600.00 actual and punitive damages but we were still a long way from ever seeing a penny of the money. That would require withstanding an appeal to the South Carolina Supreme Court by the City and an amicus curiae brief filed by the South Carolina Law Enforcement Officers Association. Fortunately, I had Jay’s help all the way.  Trying civil rights cases is challenging but can be very rewarding. If you have a client whose rights have been grievously violated, don’t refer it, associate a lawyer with experience handling civil rights cases and have fun being a real lawyer fighting for real justice.   

Jack B. Swerling, Esquire

Lawyers use legal technicalities all the time to make evidence disappear in a trial. But that’s nothing. I’ve seen real disappearing magic in a courtroom. I saw my lead counsel, Jack Swerling, disappear in the middle of a rape trial. I mean, P O O F, and he was gone.

        We were in the Aiken County Court of General Sessions finishing up the trial. Things were not going well as they often don’t in such cases. This trial started going down hill when the defendant showed up for court wearing, I kid you not, a red, satin toreador suit. His toreador jacket just reached his hips above his skintight toreador pants atop his white leather platform shoes. His inappropriate attire turned out to be the least of his problems.

        The evidence introduced by the Solicitor during his trial was that the defendant and his friend, who was a cooperating witness for the prosecution, met two young women in a juke joint one Saturday night. They bought the women drinks and were all having a good time when the men asked if the women wanted to go somewhere to have some more fun. The girls agreed and off they went in the  defendant’s car. The defendant pulled off the main road onto a road that led nowhere. He parked and raped the woman sitting next to him on the front seat. When he finished, he turned to ask his horrified friend why he hadn’t raped the woman in the back seat and his friend mutters something about not wanting any part of it. So, the defendant climbed over the seat and raped the girl in the back seat while his friend squished himself far as he could against the rear door and window to stay out of the way. Meanwhile, the girl in the front seat got out of the car and started running back down the road towards the main road. When the defendant finished raping the girl in the back seat, he opened the back door, climbed out, chased the first girl down, and raped her again.  

        And what was the defense of this toreodor defendant’s choosing? Why consent, of course. He was insulted anybody would even think he had to force himself on a woman. They came willingly, he said as if that was all that needed to be said. Jack was trying to finish up his direct examination of the defendant as quickly as he could when he asked, “So, is that the only times you had consensual sex that night? Twice with the girl in the front seat, and once with the girl in the back seat?” To which the defendant replied, “No, when I got home later that night, I pulled myself off in the bathtub.” Nobody in the courtroom moved or made a sound. It was as if time itself froze. Not believing what I’d heard, I looked around for lead counsel but he had just up and disappeared.

        I was stuck in this frozen world of disbelief when I began hearing the muffled sound of Judge George Bell Timmerman banging his gavel on his bench in the background. I looked in his direction I saw he was motioning for me to approach the bench. I was just second chair and looked again for my missing lead counsel but, he was still nowhere to be found. I rose and walked towards the bench. As I got closer, his honor covered the microphone with one hand and motioned me still closer with the index finger of his other. I leaned in and was struck dumbfounded when the judge asked me in a whispered voice, “After this trial is over, can you talk to your client about getting me a transplant?” The judge didn’t wait for my answer and dismissed me back to counsel table with a backhand wave of his hand.

As I turned around, all of sudden, time itself restarted and everything returned to normal the courtroom. There was lead counsel, seated at the defense table with a puzzled look on his face wondering what I was doing up at a sidebar talking to the Judge without him.

I needed an explanation but, even a new lawyer like me, knew it was not the time to talk about it in the presence of the jury. The rest of the trial passed much as I expected until the jury began their deliberations. Just when I figured we’d have time to talk about lead counsel disappearing, the jury began arguing in the jury room which, in Aiken County, is located right behind the jury box. Everyone could hear the jury was getting louder and louder and started sounding more and more like they were getting ready to come to blows. Lead counsel asked the bailiff if there was anything to be concerned about and the bailiff said, “No, the judge sent them in a lunch menu from a Chinese restaurant and they’re arguing about what to order from column A and what to order from column B.” After the jury finished lunch, it only took them about an hour to convict our client on all three counts of rape.

On the ride back to Columbia after the verdict, I tried to ask Jack about his disappearing act, but he acted like he had no idea what I was talking about. I tried many other cases with him after than but he never admitted he disappeared that day. He taught me more than anybody else about how to try cases but not how to disappear in a courtroom.

I have thought about this many times since when I wished I could disappear during a trial. When I wished I could click my heels three times and wish my wing tips to take me anywhere else but always to no avail.

* I have deleted the name of my lead counsel because to this day he adamantly denies he disappeared in the courtroom. I just as adamantly know he did.

I first met lawyer Joe Kent when he invited me for drinks at the Blind Tiger Pub to discuss my association on an appeal of a personal injury case he’d lost at summary judgment. Summary judgement is when a Circuit Court judge short circuits a case by ruling the material facts are not in dispute and one party is entitled to judgment as a matter of law. No trial, no jury, its just the Judge ruling your case is over before it ever gets started. Joe was a well known lawyer in his own right and I was flattered he would consider associating me to handle the appeal.

We met at the Tiger down the street from my law office on Broad Street. Over a round of drinks, we discussed his case. It involved a roofer knocked off a roof of a house next to a golf course. He was hit in the head by a hooked golf ball and suffered a disabling brain injury. Joe spoke with the homeowners and learned living in the the house was like living in a shooting gallery. They told him they’d almost been hit by errant golf balls on countless occasions.

Now, it might sound like Joe had a pretty open and shut case against the golf course, but you’d be wrong. The law protects golf courses in the same way it protects baseball parks concluding people who go to baseball games assume the risk of getting hit in the head by foul balls.

Joe didn’t know that particular law and filed his lawsuit alleging the owner was negligent in the design and operation of the course. The owner of the course hired an insurance defense lawyer, who unfortunately for Joe did know the law, and promptly filed a motion for summary judgment. Courts give lip service to the idea the bar for getting a summary judgment is set high to protect the right to trial by jury, but in reality judges jump at any chance to clear their dockets without all the fuss and mess of jury trials whenever they can.  

Joe frantically searched high and low to find a golf course expert willing to testify it was foreseeable golf balls would strike strike people in adjacent houses based on the design of this particular golf course. To his credit, he found one, a retired golf course designer, living in California, who agreed to review Joe’s case but the time to respond to the insurance lawyer’s motion for summary judgment was fast approaching and Joe didn’t have time to send the photographs and documents out to the expert and get his report back before the deadline expired. In such cases, the court rule for summary judgment provides, “[s]hould it appear from the affidavits of a party opposing the motion that he cannot for reasons stated present by affidavit facts essential to justify his opposition, the court may refuse the application for judgment or may order a continuance to permit affidavits to be obtained …” Joe filed an affidavit explaining why he needed additional time but the judge ruled the applicable word in the rule was “may,” as in the Judge may or may not grant a extension and, needless to say, the judge didn’t and granted summary judgment tossing Joe’s case out of court. 

I explained to Joe he faced an uphill fight on appeal because he would have to show the judge abused his discretion denying his motion for an extension. Appellate Court judges avoid rulings lower court judges abused their discretion like the plague. I also told him, however, the issue was straight forward and hopefully the Court of Appeals would see the unfairness of the Judge’s ruling without him needing my help. Joe thanked me for my advice but, by that time we’d both had a couple of drinks and Joe had started telling me stories about his service in the Army during the Vietnam War. He was a good story teller and, next thing I knew, I found myself buying him drinks so I could hear more of his.   

Joe and I were about the same age and attended college on student deferments during the early years of the Vietnam War. Then old Tricky Dick Nixon became President and held a national draft lottery to end the obvious unfairness of student deferments. I drew lottery number 289, well above the cutoff to be drafted, but Joe wasn’t so lucky and drew a guaranteed ticket to boot camp. He decided to enlist in the hopes of landing a job as far away from the front lines as possible.

Joe told me his drill sergeant drilled it into all the recruits they were destined for the jungle, but Joe, a college boy, scored well on the Army aptitude tests and received orders to report for Advanced Individual Training at the Army Clerk School. After eight weeks of clerk training, Joe said he was loaded onto a military transport plane, flown half way round the world, and dropped off at what was then the biggest military base in the world, Long Binh, 20 clicks outside of Saigon. I must have had a starry-eyed look that said I’d believe anything, so Joe kept telling me his story.

He told me while he was waiting to be assigned somewhere out in the jungle, a captain asked if he would write some letters home to the families of fallen soldiers. Joe accepted the assignment but said he decided, if he was going to do it, he would write something meaningful. So he contacted the soldiers in the fallen soldiers’ platoons to learn as much as he could about the fallen soldier and wove what they told into moving letters of friendship, courage, bravery, and service into his letters home to their families.

The captain was so happy with his letters, he decided to keep Joe on his staff. Not only that, but the captain introduced him to other captains who detested writing the letters home as much as he did. As Joe embellished his story, he said before long he was living in a beautiful apartment in downtown Saigon, with a veranda overlooking a busy street, said he had servants and a staff of his own helping him write his letters, and that other captains vied for his help by offering him all manner of difficult to find black market favors.

Unfortunately, Joe’s exotic oriental lifestyle ended abruptly when some big shot politician from back home called the captain’s colonel to thank him for the wonderful letter his constituent had received. The embarrassed colonel didn’t know anything about it, was furious he hadn’t received credit for the letter, and promptly pulled the plug on Joe’s letter writing operation. Next thing Joe knew, he said he was riding down MeKong River on a swift boat headed for the delta where soldiers were actually doing the dying.

At this point, I have to admit to you that I’ve told this story to people who served in Vietnam and would know, and they’ve uniformly told me Joe’s story was complete fiction. Captains didn’t write those letters, but, me, that night sitting in the Blind Tiger Pub drinking drinks and listening to Joe weave his tale, I didn’t have a clue. Maybe it’ was because I felt guilty never having to serve that made me want to believe Joe’s story of his beautiful letters back home.

          It turns out Joe won the appeal he wanted my advice on without my help and, no sooner had Joe’s case was restored to the docket, then the insurance company offered a shit ton of money to his disabled client to settle. I learned about Joe’s triumph late one night when there was a knock at my door. I opened the door and, there to my surprise was Joe standing on my porch carrying a whole case of Dewar’s white label scotch on his shoulder. Joe’s said it was his gift to me for my advice on his case but I suspect, it was just Joe’s way of getting gullible me to sit down, crack open a bottle, and listen to more of his stories.

          Joe died suddenly of a heart attack a few years later. He was a solo practitioner and didn’t have a partner or an associate to help wind up his law practice. His wife, who I think was worried what ethical skeletons might be lurking around in his office, asked if I would help shut his practice down. I, apparently not only being gullible but soft hearted, agreed having no idea what I’d be getting myself into. His office had files stuffed in cabinets and drawers in no particular order and stacks of letters and papers piled high on every flat surface. In the center drawer of his desk I found letters he’d written to his clients and friends over the years. Letters apparently written at all hours of the night. Reading those letters I learned it was indeed true Joe really did have a gift for writing beautiful letters.

It was in those letters I first learned of a wonderful story Joe never told me. There was a young foreign exchange student, a Muslim, living in Charleston during the genocide against Muslims in Sarajevo . He lost his sponsor and his student visa had expired. Deportation would have meant almost certain death. Joe’s letter recalled there was another student at the school the Muslim boy attended, an orthodox Jew, who invited the stranded exchange student to live with his family. The family was willing to open their hearts and take the student in. Joe wrote lovingly about how the family agreed to respect the student’s Muslim faith and celebrated the religious holidays from both religions as long as the boy stayed with them. What the family couldn’t offer, however, was a solution to his expired visa and they turned to Joe for help.

Joe didn’t know any more about immigration than golf course law, but that didn’t stop him from agreeing to help the young man. He doggedly pursued the young student’s visa case and, no matter how many brick walls he ran into, he never gave up until finally the young man was granted asylum. He went on to graduate and attend college in the United States and went on to earn citizenship. In the process and over the years Joe and the young man developed a close bond of friendship expressed in Joe’s letters.

To show once again just how small the world really is, it turns out my wife, Mary, worked with the mother of the Jewish family who took the young student in. I learned this when we attended Joe’s funeral and Mary ran into her former colleague. The mother filled in more of the details that would be missing from Joe’s letters. The story began when soldiers visited the student’s village outside of Sarajevo looking for “volunteers.” As fate would have it, the student missed being pressed into military service because he had had appendicitis and was recovering from surgery. His family knew, however, the soldiers would be back and arranged for the boy to become a foreign exchange student in America to escape almost certain death.

I understand there are people who may cringe at the very thought of any Muslim being granted asylum never mind citizenship in the United States but my friend Joe wasn’t one of them. I found out just how remarkable the young man was when I learned even though he had become a U.S. citizen and graduated with a Ph.D. in biology, after the genocide ended, he volunteered for specialized training and returned to defuse land mines in his homeland. He still lives there today but kept in close contact with Joe and continues to keep in contact with his adopted American family.

Joe’s story, like so many, unfolded unexpectedly. I was disappointed to learn his story of his service in Vietnam wasn’t true but comforted reading his letters to this young man in which I learned it was true Joe wrote beautiful letters, if not to families of fallen soldiers, then to clients he helped over the years he was a lawyer. They were letters of friendship, courage, bravery, and service written by a friend I miss deeply and would give anything to meet again back at the Blind Tiger Pub so he could buy me drinks, ask for legal advice he didn’t need, and tell me more stories.