If you want to be a trial lawyer, you might consider forgoing the big bucks offered by big law firms and consider starting your career as a Prosecutor or Public Defender. Then, instead of being stuck drafting legal pleadings, motions, and briefs a senior partner will take credit for, you will be more likely to try cases in real courtrooms. For my money, being a Public Defender will give you the best training because prosecutors too often get lazy having their cases pre-prepared for them by the police while public defenders have to fend for themselves. One of the best trial lawyers I had the pleasure of trying several cases with was Jim Smiley who started out as a Charleston County Public Defender. I remember one case in particular in which Jim’s experience and dedication won what is usually a slam dunk case for the prosecution.
It was a controlled buy narcotics case. A controlled buy works like this: someone caught selling or possessing drugs is threatened with significant jail time unless they agree to buy drugs from their supplier for the police. To ensure the buy is “controlled,” the snitch meets with the police at a predesignated location before the buy where he is searched, wired with a tape recorder, and given marked money to buy drugs from their dealer. The police observe the informant going to and from the dealer’s residence to make the buy. The informant immediately returns to the designated location after the buy and turns over the drugs and the tape recording to the police. To protect the snitch’s identity, the police wait a couple of days before arresting the dealer. A controlled buy is usually a guaranteed trial victory for the prosecution but cutting your teeth defending impossible cases is what teaches Public Defenders how to become real trial lawyers.
Jim’s client denied he sold drugs to the informant who he said gave him the marked money to repay a prior debt. Never mind what that prior debt may have been for, he refused to cooperate or plead guilty. Jim thoroughly reviewed all the reports, carefully listened to the tape of the buy, and discovered a thirty second silence on the tape that potentially blew a big hole in the prosecution’s controlled buy theory of the case. When and how he used this discovery was a master class in trial advocacy.
Jim didn’t ask many questions as the detective laid out the controlled buy playbook for the benefit of the jury on direct examination. By the time the detective finished it sure sounded to the jury like Jim’s client was guilty beyond a reasonable doubt. On cross examination, Jim began his attack. “Why do you search the informant before you gave him money to go buy drugs with?” “We searched him thoroughly to be sure he didn’t have the drugs on him.” “And, you said you watched him going to and from the dealer’s residence, why is that?” “We maintain surveillance to make sure he didn’t have the drugs hidden somewhere along the way to buy the drugs.” “And you searched him and kept him under surveillance to prove the drugs he gave you after the buy must have come from the defendant, isn’t that right detective?” “Yes, sir.”
Then Jim played the tape, with the volume turned up so everyone could hear the background noise Jim heard – footsteps. To emphasize what he’d heard, Jim paced back and forth in front of the jury box in perfect time with the muffled footsteps you could hear on the tape. Steady at first but then, all of a sudden, Jim froze like someone had yelled “red light” in the childhood game as the footsteps stopped. Jim stood frozen in front of the jury for the entire thirty seconds before starting to pace again when the footsteps restarted. He paced until you could hear the informant knocking on the defendant’s door followed by a brief hey and hi, you got the money, yeah, thanks, and see you later. Then you could hear the door close as Jim once again paced with the uninterrupted footsteps back to the detective where you heard the informant turn over the drugs and tape. When the tape finished, Jim asked, “So detective, my question to you is this, since you had him under surveillance the whole time, what was he doing during those thirty seconds when he stopped walking on his way to allegedly buy drugs from my client?”
You could see the look of panic on the detective’s face as he looked towards the prosecutor who was just as surprised as he was. Finally, the detective was forced to admit he was parked down the street to avoid being seen and the informant wasn’t in his line of sight when he walked around the corner of another building in the dealer’s apartment complex. Jim pressed his advantage, “Well, he knew the location this buy would go down because he’s the one who gave it to you, isn’t that right detective?’ “So he could have hidden some drugs there and picked them up after you searched him, couldn’t he?” “So, since you couldn’t see him when he went around the building, you don’t know what he was doing during that missing thirty seconds he was out of your sight, do you detective?” “And from all you or anybody else can tell from the tape, the informant could have been giving him the marked money to repay a debt owed to my client for some other reason, couldn’t he?”
Just like that the detective and prosecution lost control of their controlled buy case because of Jim Smiley’s hard work and experience . He showed the buy wasn’t controlled and, therefore, the prosecution had failed to prove his client’s guilt beyond a reasonable doubt. Just as important as the missing thirty seconds on the tape, was how Jim was able to demonstrate it and its significance for the jury. That level of trial advocacy can’t be taught in a law school classroom; it can only be learned in a real courtroom. If you want to become a real trial lawyer, you might consider beginning your career in a job that will actually give you some real trial experience.
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