Damsels in distress have always been a part of my practice, but they didn’t start out as the fairy tale variety. Fort Jackson was established in Columbia, South Carolina by act of Congress in 1917 to train soldiers for the First World War but, the war ended a year later and the fort didn’t become a reality until 1940 when it was needed to train soldiers for the Second World War. For however long the fort has existed, working girls have plied their trade servicing the servicemen. Little did I know my first job as a lawyer was to become their protector.
Senator Isadore Lourie, who hired me fresh out of law school, had a special relationship with the bail bondsman most trusted by the ladies. They had to pay $200.00, 10% of the standard $2,000.00 bond, to get bonded out of the Columbia City jail and had to pay another $250.00 by Monday morning’s municipal court for our legal fees. Naturally, they were busiest on Saturday nights which meant I was called into action Sunday mornings.
I would walk the jail’s holding cells collecting names, information, and $200.00 so I could post pre-signed bail bonds to spring the working girls. You don’t want to know where the woman kept their bail bond money, suffice it say I carried a handkerchief to take the money. Sometimes someone wouldn’t have stashed the cash, and I was given discretion in such cases to get them out on credit if I recognized them as repeat customers. That was the hardest part of my job because the woman didn’t look the same locked up as they did on the street. The jailers took their wigs in booking eliminating wigs as obvious hiding places for their money. As I walked down the holding cells I’d be confronted by women who didn’t look anywhere near as enticing without their wigs and makeup. “Yo, lawyer, it’s me, Mustang. Don’t you member me?”
The easier part of my job came on Monday morning when the ladies had to face the consequences for their transgressions in municipal court. Every Monday morning, after I’d collected our fees, I’d sit in the courtroom surrounded by the women all dressed up in their finery and listen as the Municipal Court judge railed against the evils of prostitution and proclaimed once again the City’s intent to put a stop to it once and for all. After his fiery speech, my clients would sheepishly line up line up and all plead guilty to solicitation. Only not to the solicitation for immoral purposes statute which carried the threat of real jail time, but to solicitation like selling magazines without a permit which carried a maximum fine of only $100.00. The bail bond, lawyer’s fees, and fine were just the cost of doing business for my enterprising clients.
But my subspecialty really came to fruition when I represented one of the first and largest telephone sex companies. At one point my client had more telephone switching capacity than the entire Town of Mt. Pleasant phone company. The women could earn a couple bucks a minute talking dirty to men on the telephone all in the safety and privacy of their own homes. A couple bucks a minutes adds up quickly to $120.00 an hour. And, who were their customers? Surprisingly, their best customers were old men in nursing homes. Each month when their checks were deposited the women’s phone lines lit up like Chrisytmas trees. I picture them, with their hair up in curlers, wearing a frumpy house coat, doing the family ironing talking on the phone lifting up the iron to sound of escaping steam, psssssst, and saying, “Oh, baby, you’re so hot!” The wages the women earned were welcomed at home until, sooner or later, their husbands would get to feeling neglected for not getting what the women were describing on the phone. My client became a lucrative referral source of damsels in distress.
I am proud to have represented the working women I have represented over the course of my career. They paid their fees, appreciated my work, and often had more honesty and integrity than other clients. Best of all, they helped prepare me to represent real damsels in distress later in my career when the opportunity presented itself.
My client who lost his legs in that motorcycle accident got that big settlement he was entitled to. He used it to buy himsaelf a used full size used car he had out fitted with hand controls and a carrier in the back to haul his new electric wheelchair. He developed amazing arm strength and would lower himself to the ground from his chair, fold it up, and store it in the carrier. He would then handwalk to the driver’s side door, open it, and pull himself in. He regained some freedom and liked to go out to the clubs, to be with people, and enjoy the music. They say people gathered around in a circle when he danced his wheelchair. Someone also said he used that settlement to to go into the drug business and was selling cocaine in the clubs. That someone was probably some hapless club goer caught dirty and told ratting out his dealer was the price of his freedom. It’s a very risky business ratting out actual drug dealers and suspect my client made a perfect patsy. But the narcs only caught him with the remnants of a cocaine eight-ball when they busted him leaving a club one night. Enough to charge him with PWID, possession with ointent to distribute, and just to be real pricks, they seized his car alleging it was used to transport contraband under the forfieture statute.
What my client was most upset about was his car being seized, I met with the narcs and we discussed the car being undrivable by anybody other than my client and of no use to them. I proposed we swap for a car of equal value they could actually drive and asked them what kind of car they might want. Their eyes lit right up and, after they conferred about it, said they wanted a small Chevy S-10 pickup. I said that could be arranged and I arranged it. The PWID charge was reduced to possession and pled out for probation. Everybody was happy.
Well not everybody. Almost a year later the receptionist buzzed to tell me there were SLED agents in the lobby asking to speak with me. I said send them back and waited in the hall to usher them into my office. They introduced themselves and showed their ID cards as we sat down. One agent took the lead and opened up an official looking file folder before advising me they were investigating the alleged bribery of police offiers. That got my arrention but I didn’t have the faintest idea what they were talking about. Using an old police trick, the agent removed a document from his file and, held it up reading it as if it was irrefutable proof of criminal activity. The agent then asked, “Did you represent ________________ charged with distributing drugs in Berkeley County.” That caught me by surprise but at least I now knew why they were in my office. “No,” I replied, “he was charged with PWID and pled down to possession.” The agent didn’t like that I showed no sign of anxiety I’d done anything wrong. Undaunted, he proceeded to pull out anothet document and ask, “Did you arrange to give the narcotics officers who arrested your client a Chevy pick-up truck?” Again without hesitation I replied, “Yes, I did,” but added, “My client gave it to them in exchange for them returning his automobile that was fitted with hand break and gas contols.” You could see the agent thought he was getting close to having me admit to the bribe, and he tried to nail his trap door shut by asking, “Was that the same car that was seized because my client was a drug deaker?” “No,” I shot back, “the same car that was seized because my client possessed more than a gram of coke, not because he was a dealer.” “Well, what gave you the authority to do that?” he asked incredulously. I almost laughed and replied common sense.
Now it was my turn to start asking questions. “Are you suggesting I gave the officers a pick-up truck as a bribe?” “Er, eh, well we’re investigating to find out what happened.” “Oh, in that case, since you’re just investigating, I’ll tell you. I don’t know if that file of yours reflects it but my client lost both legs in a horrific motorcycle accident. That car they seized was specially modified with hand controls and a carrier for his wheelchair. The seizure of his car because it had been used to transpot drugs was bullshit but, even so, do you have any idea how hard it is to get a wrongfully seized car back through the system?” The looks on their faces told me they didn’t. “It would have taken months of legal wrangling and cost more than the pick-up truck was worth. It wasn’t a bribe, swapping the vehicles was the fastest and most economical way for my client to get his car back.” I didn’t have to ask for what purpose they thought I would have risked my law license to bribe the officers. They thought it was quid pro quo for getting the PWID charge reduced to possession. “If you really think I had bribe the narcs to reduce the PWID charge to possession when my client had no prior record, you must think I’m a really lousy lawyer,” I said holding my wrists out. “If you think I’m guilty of breaking the law, you’d better go ahead and arrest me. If, not, I think it’s time for you gentlemen to leave.”
It’s not every day you get a call from the sheriff but I got one from Sheriff Al Cannon asking me to help a former police officer abandoned by his lawyer the Friday before he was scheduled to begin a wrongful termination trial in Federal Court. It’s hard saying no to the sheriff, so I agreed to see what I could do.
I spoke with the former police officer and learned his lawyer had demanded a ridiculous upfront payment for the trial and, when he couldn’t afford it, the lawyer filed a motion to be relieved as his lawyer. A hearing on the motion was scheduled to be heard that Friday afternoon. I asked him what the case was about and he told me he had been fired by the Charleston Police Department for allegedly associating with a known criminal, but the real reason he was fired was because he refused to lie about drugs having been planted on somebody during a search. Well, now, an honest cop being fired for refusing to lie about planted drugs sounded right up my alley. You’d think I’d have known there was more to the story than what I was being told.
I had never personally appeared before Judge Houck before and entered my appearance at the beginning of the hearing: J. Kevin Holmes, appearing on behalf of the Plaintiff for the purpose of opposing his current counsel’s motion to be relieved and, if that motion is granted, to move for a continuance so I can prepare to represent him at trial. I don’t think Judge Houck even looked up or asked me to bend over before ruling from the bench, “The motion to be relieved is granted. The motion for a continuance is denied. We’ll see you for trial first thing Monday morning counselor.” I was dumbstruck, which is probably a good thing because if I’d have been to talk, I’d probably been held in contempt for uttering a string of profanities the likes of which has never been heard in a courtroom.
The enormity of what I’d gotten myself in was just beginning to seep in as I was walking down the courthouse steps and ran into lawyer Bob Haley coming up the other way. I must have looked shellshocked because Bob asked out of genuine concern if I was okay. Still flustered I blurted it out what had just happened as best I could and to my utter amazement, Bob offered to jump right onto my flaming dirigible and help with the trial.
Bob and I had tried the Columbian dentist case against each other and were both experienced trial attorneys. For those of you who may not be, getting a case ready for trial under normal circumstances is an enormous undertaking. You have to put together your trial notebook starting with jury selection. That requires going over the jury list and the jurors answers to a questionnaire trying to divine who to exclude and who to seat. You have to prepare your pretrial brief giving your version of the facts, identifying legal issues anticipated to arise, who your witnesses will be, and what exhibits you intend to introduce. You have to research and prepare any pretrial motions you’ll want to file. Research and write out the jury instruction you’ll want the judge to charge. Make outlines of the testimony you’ll expect to elicit from each witness. Meet with and prepare your witnesses for their trial testimony. Copy and mark all of the trial exhibits. And, write out your opening statement for the jury. To do all this over the course of one weekend in a case you knew nothing about to start with would take nothing short of a miracle.
Bob and I camped out in my firm’s library and got started reviewing the file the client’s former lawyer had turned over to us. Needless to say, he hadn’t done any of things I just listed to get ready for trial. Remember when I said I should have known there was more to the story than what I had been told? Well, when we read through the file it didn’t take long for Bob and I to discover our client had settled his wrongful termination suit against the City. That’s right, signed a release and settled it. When we confronted him with this rather inconvenient fact, he sheepishly said he only accepted the settlement because he was allowed to resign with no finding misconduct on his part and he’d been offered a job as a deputy with the Sheriff’s Office but that the City had breached the agreement by recommending to the South Carolina Criminal Justice Academy they revoke his certificate needed to be a law enforcement officer in South Carolina. This explained the Sheriff’s interest in the case, but you don’t have to be a legal scholar to figure out its pretty damned hard to sue for wrongful termination from a job you voluntarily resigned from.
Now we realized the case we’d signed up for wouldn’t be about an honest cop fired for refusing to lie about planted drugs, it would be about whether the City fraudulently concealed their intent to recommend his license be suspended to induce the settlement and release. Deepening the legal quicksand we found ourselves in up to our eyeballs, the client’s prior worthless lawyer hadn’t plead fraud in the inducement nor had he conducted any discovery how the City’s recommendation our client’s license be revoked came about.
Bob and I were left grasping for nonexistent straws when something extraordinary happened. Opposing counsel, Carol Ervin, a very seasoned trial attorney called us on the phone. Carol may have been small in stature, but any lawyer dumb enough to underestimate her courtroom prowess would be making huge mistake. She specialized in employment law and was tough as nails. But late that Friday afternoon she called us to let us know she thought Judge Houck’s denial of a continuance was grossly unfair. To the extent ethically possible, she offered to do anything she could to help bring us up to speed for the trial. Truth is Bob and I already knew there wasn’t much she or anybody was going to be able to do to help us out of the impossible situation we found ourselves in but somehow Carol reaching out to us lifted our spirits and gave us the fortitude to hunker down and do our level best as lawyers to turn the chicken shit we’d been handed into chicken salad.
Bob and I spent Friday night hitting the library books looking for cases in which a settlement agreements had been set aside. Each time we found something encouraging further research shot us down. We crashed and burned so many different ways it was probably around two a.m. that Bob and I became giddy and started laughing. Bob came up with the notion we should send Carol copies of the cases we’d found pretending they’d save our asses but mostly just so she’d knew we were working ungodly hours while she was sleeping soundly. Somewhere around three thirty that morning, for reasons vaguely related to the unreal situation we found ourselves in and Dorothy saying, “Toto, I’ve a feeling we’re not in Kansas anymore,” Carol became Dorothy of the Wizard of Oz. I think it was Bob who quoted Dorothy as saying, “Lions, and tigers, and bears, oh my!” when our research ran into another dead end.
Carol picked up on our silliness and called us on Saturday. She wasn’t fooled for a second by our caselaw but was impressed by how much fun Bob and I were having. She liked being compared to Dorthy and, I suspect, started to think of us as the Scarecrow and Lion knowing we both already had heart and courage but were somewhat lacking in brains. It was the first of many phone calls and much laughter we shared over that weekend.
Monday morning came and against all odds Bob and I were ready as anybody could be for trial. I think even Judge Houck felt a little guilty for his Friday ruling and couldn’t help but be impressed by all the hard work Bob and I had put in over the weekend. Of course, that didn’t stop him from cutting us off at the knees every chance he got and directing a verdict in favor of the City at the close of our case. We were exhausted but held our heads high leaving the courthouse that afternoon knowing we’d done our best to help an honest cop whose worthless lawyer had him stranded on the eve of trial.
We didn’t win the case but our client made out okay. He became a private investigator for one of South Carolina’s premier criminal defense attorneys who regularly stuck it to the City Police Department that had treated him so unfairly. I don’t know for certain but I’d wager he made twice as much as a private investigator than he ever would have made as a Sheriff’s deputy. And me, who had more fun practicing law than almost any lawyer I ever knew, never had more fun winning a case with another lawyer than I had losing the case with Bob. If there’s a higher compliment one trial lawyer can pay another, I don’t know what it is. And we made a friend of Carol Ervin. Bob and I went down to Bob Ellis shoe store on King Street and bought her a pair of woman’s shoes we painstakingly glued ruby red sequins to that we gave to her as present to remember our trial by.
He loved the feeling of freedom riding his Harley-Davidson 998cc XLS Roadster on the back roads of Berkeley County until a logging truck pulled out in front of him. All he could do was lay his bike down and ride on top of it hoping it would stop before colliding into the truck. And it almost did, his motorcycle was rapidly slowing when something caught sending the bike and him tumbling down the pavement. He was paralyzed with a broken back and badly torn up legs. I had gone to see him in the hospital to discuss representing him in a lawsuit against the trucking company but he was heavily medicated and not in any condition to discuss legal matters. We were just talking when his doctor came into the room.
The look on his doctor’s face said he didn’t have good news. He didn’t pay me any attentiom when he said there was no easy way to say what he had to say. That they’d done everything they could to restore the blood flow to his legs but gangrene had already begun to set in. The doctor lifted the sbed heet and one of his bandages pointing out the blackening tissueon his paralyzed leg. Unless they amputated his doctor said it would spread to his blood and most assuredly kill him. I could see the news was devastating and was amazed when my client found the courage to calmly ask questions that needed to be asked. Where would they amputate his legs? Above the knees the doctor told him, gently reminding him his legs were already paralyzed. When did they want to do the operation? As soon as possible, later that same day, if he gave his consent. Well, I really don’t have a choice, do I? No the doctor shaking his head. When my client gave his consent I could see the relief spread across the doctor’s face. The doctor nodded his head again saying he would make the arrangements, turned, and left the room.
I followed him out into the hall and called after him. Doctor, I just wanted to say how much I appreciate you being so honest and caring delivering such gut wrenching news. Thank you, he replied. And who are you the doctor asked? I’m Kevin Holmes, his lawyer. The doctor turned as white as the screen upon which this is printed before gasping, “Oh my God, I thought you were his preacher!”
You hear it all the time, I’ve said it myself[1], being a good trial lawyer requires you to have the ability to craft a good story. But that’s a little like telling somebody how to build an airplane by telling them how to fly one. Let me suggest you begin becoming a good storyteller by first becoming a good listener.
I say this because I’m confident you’re never going to be William Shakespeare crafting words with form and meter into works of art. But, think about it, how do you think he came up with “ay there’s the rub…?” I looked it up and found scholars say in the 1600’s a rub was a flaw in the playing surface of a bocce game.[2] I can clearly picture in my mind the Bard overhearing someone, doubled over in his doublet with ruffs and cuffs showing, complaining about a rub in grass. It might even be true, who knows, not that it matters for our purposes. You don’t have to be the Bard, you just have to listen. [3] . Most importantly, you have to listen to your clients so you can tell their story in their own words.
Acetylene is an explosive hydro-carbon gas manufactured for use in welding and cutting torches.[4] My client was seriously injured when an acetylene tank he was cleaning exploded blowing him through the wall of the sheet metal building where he was working. Good thing the blast bent him over or the steel beam in the wall where he was standing would have decapitated him. Blew his clothes and burned every hair on his body off leaving him standing naked against the chain link fence on the other side of the wall. Now that’s one Hell of a story and the bestv part is I didn’t have to make one word of it up. I just had to listen to what my client said. And the beauty is your word thievery doesn’t have stop with your client. His wife’s saying what she missed most since his accident was not being able to exchange sweet nothings with her husband because of the ringing in his ears. Or his brother when asked if he was in much pain following the explosion saying, “He was in shaking kind of pain like a dog thought it was gonna die!” The hair on the back of the juror’s neck stood on end. I like to think of myself as a pretty good trial lawyer, but I couldn’t have come up with describing pain that way in a million years.
Not only aren’t you a Shakespeare, but you’re also not Steven Spielberg. Know Even great directors listen for the unexpected turn of a phrase that catches the ear. Did you know, Humphrey Bogart’s ”here’s looking at you kid” in Casablanca was an ad lib? The director chose to keep the line in the film and won Best Director in 1944.[6] If you find yourself trying to tell a client what to say instead of listening to what they are saying, know you are well on your way to your witness testifying in a monotone voice that lacks any resonance of truth.
Now, sure, sometimes your witness may need some prodding to open up. Ask them open ended questions that don’t suggest answers[7] like what’s your biggest fear about testifying in Court? Can you tell me more about that? How did that feel? Don’t be surprised to discover some witnesses are just hopeless and don’t make the mistake of thinking you have the directorial where with all to make them stars. Look for an alternative.
Now that you’ve listened, don’t expect the story to tell itself. Someone, and that’s you, has to take the pieces of the story you gathered by listening and make them whole. Shuffle and reshuffle the pieces to find the right order. Practice telling it over and over to iron out the wrinkles. I once heard a very smart lawyer give a seminar on practicing telling your story with an Italian opera playing in the background to add rhythm. He added, you should feel free to substitute whatever music moves you. Now you’re crafting a story.
Always remember they call it practicing law for a reason. Like playing a musical instrument, you get better the more you practice. Never stop learning the art of trial advocacy.
[1] I randomly insert citations to make what I write appear more scholarly.
[2] Google. Who needs AI Chatbot to sound impressive?
[3] When I say listen, I include reading as well. Feel free to use the Bard whenever you can. Think people don’t read Shakespeare anymore? Just say, ‘First thing we do let’s kill all the lawyers …” and see the reactionb you get. Don’t limit yourself to the classics, free free to p-lagerize any poet, songwriter, famous lawyer, or TED talk personalities you admire
[4] Acetylene (systematic name: ethyne) is a chemical compound with the formula C 2H 2 and structure HC≡CH. Aren’t you impressed with my seemingly endless Google knowledge.?
There is so little thanks for lawyers who take on the fight against child abuse, there must be a special place for them in heaven. Most lawyers shy away from the heartbreaking work because they know, no matter how good a job they do, families will be torn apart, and scars will be left the legal system cannot possibly heal. Thankfully, there are a few lawyers who become committed to the necessary work, both as advocates and judges. Two such lawyers I worked with over my career were Assistant Solicitor Debbie Herring Lash and Family Court Judge Danny E. Martin, Jr. I worked with them on a protracted murder by child abuse case that started out in the Court of General Sessions criminal court as a murder case and ending up as a removal action in the Family Court. Despite the charge of homicide by child abuse, both Ms, Herring-Lash and Judge Martin kept an open mind and treated everyone caught up in the tragedy with dignity and respect. I call this my Pseudo Munchhausen-by-Proxy murder case because of the pseudo-science offered to support the charge of murder at trial. Families were torn apart, and scars were left that will never heal left, but because of Ms. Herring-Lash and Judge Martin’s dedication, justice was finally done.
It happened twice. Her son, still a toddler, stopped breathing and turned a deathly shade of gray. Alone and unable to speak English, his mother dialed 911 and frantically ran to the neighbors to speak for her. Thankfully, both times, the toddler recovered before EMS arrived. The second time, however, EMS took the mother and child to the hospital where the mother thought they were trying to find out what was wrong with her son. But the suspicion of child abuse had been planted and what they were actually doing was watching the interaction between the mother and child to see if the mother was making the child sick to gain attention for herself, a rare medical diagnosis called Munchausen by Proxy.
Nothing untoward was observed during the hospitalization, except for the mother telling the nurses her son slipped her grip while she took him with her to the bathroom, stumbled, and hit his head on the tiled bathroom wall leaving a small red bruise requiring no treatment. Observing no other questionable conduct, the hospital discharged the mother and her son with a home heart monitor for him to wear. Whether the mother couldn’t figure out how to put the monitor on properly, or the toddler figured out how to wiggle out of it, or the monitor never worked properly to begin with, the monitor either showed a normal heart rhythm or complete gibberish. That’s when the unthinkable happened and the toddler died one night in his crib. An overzealous DSS case worker, determined to make up for not acting sooner, urged the police to file the homicide by child abuse charge. The detective went along and swore out the warrant naming the case worker as his sole source for probable cause. The terrified mother was arrested, I was retained by her family, and the case was assigned to Assistant Solicitor Debbie Herring-Lash.
The specter of the crime alleged was enough to cause a sky-high bail bond neither the mother nor her family could afford. Ms. Herring-Lash, who was head of the child protective services unit, had more active cases than any lawyer could be expected to handle, so it’s hardly surprising the mother languished in jail for a long time before the case came to Ms. Herring-Lash’s attention. Once it did, it didn’t take long for Ms. Herring-Lash to notice the complete lack of corroborating physical evidence supporting the charge, no broken bones, scars, bruises, or forensic signs of abuse or neglect. The cause of death listed on the autopsy report was asphyxiation, but Ms. Herring-Lash was familiar with crib death and wasn’t persuaded it was murder. When she read the file and saw the mother didn’t have any criminal record, no history of substance abuse or mental illness, and both the child and his older brother had been seen for regular medical check-ups and were always found to be in perfect health, she instructed her investigator to dig deeper into the case.
When interviewed by the investigatyor, the detective said he was relying on the DSS caseworker. The case worker, in turn, said she was relying on the toddler’s breathing problems only occurring when he was alone with his mother and no medical condition having been found to explain his symptoms. To the DSS worker’s way of thinking the absence of evidence proved it was Munchausen-by-Proxy. The investigator reported back to Ms. Herring-Lash and added neither the caseworker nor the detective had interviewed any member of the mother’s family because they didn’t speak Spanish.
She didn’t have to, but Ms. Herring-Lash called me as the mother’s attorney to ask if I objected to her interviewing my client’s family. Now a lot of lawyers would have refused fearing some ruse to gather evidence against their client, but I knew Ms. Herring-Lash from prior dealings and not only agreed but offered to bring the family down her office to be interviewed. Ms. Herring-Lash wisely said no, she’d rather interview them in their home. I knew she was right and agreed to set it up.
The mother’s family lived in an old trailer park in the Hannahan area. The outside of the trailer looked run down, but the father and son had completely renovated the inside. It was immaculate, comfortably furnished, and nicely decorated. The mother’s room had been left undisturbed while she was in custody and, although cramped with beds for the mother and her two children, it too was organized, neat and clean. The whole family gathered for the visit. None of them spoke English but anyone with eyes could tell immediately how honored they felt by the busy prosecutor visiting their home. Ms. Herring-Lash’s investigator translated when the grandmother spoke for the family thanking Ms. Herring-Lash for coming and welcoming her into their home. After formal introductions all around and a proud tour of the trailer by the grandfather, Ms. Herring-Lash sat down in the living room with the family and started asking questions about the toddler. When she asked if they had ever witnessed the child stop breathing like the mother described they all shook their heads and replied no. I was worried by their response but Ms. Herring-Lash was experienced and asked a follow-up question, had they ever witnessed the toddler having any breathing problems at all? The family all started talking at once. The grandfather said he thought the boy had asthma. The grandmother thought he got overexcited and hyperventilated. An uncle who had done a lot of renovations on the trailer thought he might be allergic to the mold that permeated the old trailer. They all agreed he was allergic to something but couldn’t agree on what. Ms. Herring-Lash asked one final question, had the boy experienced any of his attacks when his mother wasn’t around. An aunt said she remembered he once had an attack when all the children were watching tv while the mother was out and everyone nodded their heads in agreement.
Ms. Herring-Lash spent a good hour in the family’s home. She’d seen and heard enough, thanked the family for meeting with her, and left with her investigator. I remained behind and told the family I didn’t know what she would do but felt good about the meeting. What she did was to dismiss the Murder by Child Abuse charge outright later that afternoon. The mother was released from the county jail that evening. I can’t say I did much more than believe in my client’s innocence in getting the charge dismissed and gladly give credit to Ms. Herring-Lash. I can say, however, I have had very few clients in my career who were ever so thankful. Ms. Herring-Lash is well known for her success in prosecuting child abuse offenders. She deserves to as well known for protecting innocents caught up in the system. Unfortunately, it wasn’t long after her release, we learned the mother’s ordeal was far from over.
The DSS caseworker was incensed the criminal charge had been dismissed without her agreement and brought a removal action on the theory the mother killing her younger son meant there was a risk of harm to his older brother. At the initial hearing DSS was willing to allow the child to remain in the mother’s home only on condition the mother was never left alone with the child and agreed to attend and successfully complete child abuse counseling. I knew from experience such a plea would leave my Spanish speaking mother at the whim of a therapist handpicked by DSS. She’d ultimately be caught in a catch 22; in order to successfully complete counseling, she’d have to admit killing her son which she adamantly denied. We agreed to mother and child would not be left alone to avoid temporary removal but rejected the plea and requested a trial. The temporary hearing judge accepted my alternative proposal and ordered the case to be placed on the trial docket.
The trial finally came to be heard before the Honorable Danny E. Martin, Jr., who I had never appeared before but, had practiced with his father, Daniel E. Martin, Sr., both when he was a Deputy Solicitor and later when he became a Circuit Court Judge. I figured if Judge Martin was anything like his father, my client would get a fair trial. My client wasn’t just unable to speak English; she was emotional being both Hispanic and a mother afraid of losing her remaining child in a legal system she neither understood nor trusted. The greatest lawyer that ever lived couldn’t have explained the reasons to her why this legal nightmare was back in court for trial. All I had was her trust in me as her lawyer until we appeared before Judge Martin. I don’t know if he sensed her apprehension or it was just his judicial temperament, but he took his time explaining the proceedings through an interpreter and that helped calm my client.
The Department of Social Services sent an attorney all the way from headquarters in Columbia to prosecute the case. The first thing he did was try to impress the judge saying the case had special importance to the South Carolina Department of Social Services because it involved Munchausen-by-Proxy. Judge Martin quickly disposed of any notion the lawyer may have had he would treat the case any different than any other. The DSS lawyer thought he’d lead off with his big gun, a Munchausen-by-Proxy expert whose rather threadbare credentials he laid out before offering her as an expert witness in the field of psychology. Many young lawyers have forgotten, when an opponent offers an expert, you can request to vior dire the expert about their qualifications before the judge admits their opinion testimony. Being able to raise doubts about expert’s qualifications before they testify is a valuable tool in a litigator’s toolbox. Apparently our expert wasn’t aware of the rule and, as I began my questioning, she avoided my questions and puffed herself up repeating her testimony about having a psychology degree from an Atlanta university. I wasn’t familiar with her university, so I looked it up. I asked her if her university was located on the third floor of an office building located off the interstate? She bristled when I produced copies of the school’s webpage, but reluctantly admitted the students took classes online. To fight back against my suggestion the school was less than accredited, she shot back that, in addition to her degree, she was licensed by the State of Georgia. I thanked her for her non-responsive answer but then forced her to admit she was only a licensed clinical psychologist, not a licensed psychologist allowed to administer psychological tests or assess psychological illnesses under Georgia law. She started squirming and lost eye contact with the DSS lawyer when I said I’d reviewed the school’s curriculum and hadn’t found any courses on Munchausen-By-Proxy. True to form, she chose not to answer my question and launched into a diatribe on how the basic knowledge she received from her university psychology classes qualified her to address the issue. Which only made it worse when she then admitted no such courses were offered. So, I asked, “Where did you get the education and training to qualify you as an expert in Munchausen-By-Proxy?” She replied smugly, “I attended a seminar on the topic and chose to focus my career on helping children affected by the disorder.” Upon objection, I withdrew my final question, “So you appointed yourself an expert in the field?” I concluded my vior dire and could see Judge Martin was concerned but, the legal bar for qualifying an expert being so low, he qualified her while reserving his right to rule on the admissibility of her opinions when she offered them. It wasn’t the ruling I’d hoped for, but I knew the damage to her credibility had been done.
The problem with sending a DSS lawyer from department headquarters to try a case is they’re probably a desk jockey and not a litigator. I just sat back and watched as the DSS lawyer fumbled his case. I don’t think he knew what a leading question was because, he asked so many of them, I gave up objecting, The reason I stopped objecting was because he wasn’t having any more luck getting the so-called expert witness to answer his questions than I had. She thought she could just give practiced textbook sounding answers to whatever questions she was asked much to the DSS lawyer and Judge Martin’s dismay. The DSS lawyer finally gave up out of frustration. Since I’ve danced with recalcitrant expert witnesses before, I kept my cross examination short and to the point. Her opinions set forth in her written report were based on facts provided by the case worker that had been investigated and rejected by the solicitor. In the end, when she wouldn’t concede, if her facts were wrong, then her opinions were probably wrong too, I knew I was done with her and so was Judge Martin.
The harder witness for me by far was the doctor from the Medical University of South Carolina who testified next for DSS. I accepted her qualifications as an expert without hesitation. Young lawyers too often think cross examination is a blood sport and don’t understand not all opposing witnesses are incompetent, uncaring liars. A lawyer should always ask themselves what the witnesses’ motive is for giving their testimony. The good doctor from the Med U was a highly skilled, intelligent, and caring physician. Her motive was solely a desire to prevent children from being abused or neglected in any form. She appreciated my acknowledging that fact in my opening cross examination. I stopped being a black hearted criminal defense attorney in her mind and she became much more willing to truthfully answer my direct questions. Like admitting she had no training or experience diagnosing or treating Munchausen-By-Proxy. She sheepishly admitted she was relying on the discredited Munchausen-By-Proxy expert for that opinion. She readily admitted doctors involved in child abuse purposefully cast a wide net to protect children but understood a judge’s job is more confined than that, as it should be. She tossed the causation issue right back into the lap of the so-called expert. I thought the good doctor was going to shake my hand on the way out of the courtroom.
The DSS lawyer didn’t understand the case was over already and his calling the case worker just made things go from bad to worse when I questioned her about how much money DSS had spent for the pseudo-Munchausen-By-Proxy expert’s testimony. Her hourly rate, even for driving time, her hotel room and expenses, added up to nothing short of outrageous. I noticed the detective who swore out the warrant had been waiting outside the courtroom to testify but was never called. Normally, a judge will take a case under advisement before issuing a decision, but Judge Martin had heard enough and dismissed the case from the bench finally ending my client’s nightmare.
I am often surprised when people comment on my trial stories wanting to know what happened to the people who caused so much hurt to my client. I explain that’s not my job, my job is help extricate my client from the nightmare. Those same people may wonder why I would praise Ms. Herring Lash and Judge Martin for doing their jobs. I praise them because their job is so hard and so often gut wrenching. So much so, too often judges, prosecutors, and others involved in the system can get jaundiced toward anybody charged with child abuse. I praise them because they didn’t let the murder charge prejudice them against my client and kept an open mind. It took a long time, and left deep scars, but both Assistant Solicitor Debbie Herring-Lash and Judge Daniel E. Martin, Jr. helped me do my job and helped free an innocent mother from being unjustly punished for a crime she did not commit.
A good private investigator can make an average lawyer look like a superstar in a courtroom. Many former police officers become PIs but, for my money, the best PIs come from the other side of the street. Joe Rogers was, without a doubt, one of the best PI’s I ever worked with.
Joe grew up in a rough North Charleston neighborhood. A born hustler, he was the guy everybody came to for whatever they needed which, of course, meant he was in and out of trouble like the tide. It was a miracle he ever made it to high school but, when he did, he quickly became BMOC running a discount gas station selling siphoned gas out of the school bus parking lot. Joe’s mother told the judge that was the last straw and she was washing her hands of him, so it was off to the John De La Howe school for boys. Hustling there got him assigned to KP duty and, in retaliation, Joe fed raw rice to the chickens. He was forced to make a hasty getaway when the chickens started exploding. They found the tractor but not Joe who ade it all the way to Florida where he was taken under the wing of someone who’s hustles involved somewthing more than selling penny ante gas.
When Joe got older, Joe was drawn to the smuggling trade, not so much in the smuggling end of the business, but more onshore logistics setting up safe houses and moving truckloads of pot from coastal off load sites to cities up and down the East Coast. To launder his earnings, Joe bought, sold used luxury automobiles and led a quiet life on the money he stashed away while the Feds were closing in on his former associates still in the trade.
Before long his savings ran out and Joe was forced to find other employment. He started earning commissions referring his old smuggling associates to bail bondsman. When those same bondsmen got stuck holding hefty bonds on defendant’s who failed to appear, Joe discovered he could earn even heftier commissions tracking them down and bringing them in. A bail bondman on the hook for a $100,000.00 bond would gladly pay Joe $25,000.00 if he could bring them in. And boy could Joe bring them in. He’d track them down, find out where their favorite bar was, and sit down next to them all friendly like and tell them to relax, he was the nice guy. He’d tell them he’d let them get their affairs in order and turn themselves in thereby avoiding the broken bones, gunshot wounds, and handcuffs that would come with the muscle bound, bald guys who would track them down after Joe. If a bail jumper needed representatio, he’d refer them to me. Before long he talked me into letting him do investigative work for me and impressed me with him results.
Joe’s colorful background and resoursefulness gave him a unique understanding of human nature and the ability to convince people, including me who normally wouldn’t hie a criminal to work foir him, into doing things they probably otherwise wouldn’t do. That’s what made him such a great private investigator.
A client of mine and his friend of his were leaving a downtown dance club late one weekend night when they happened upon two girls fighting. My client’s friend was intervening to break up the fight when one of Charleston’s finest came up from behind him and billy clubbed him on the back of the head. The fight ended and the police officer ordered everybody to leave. My client walked his friend back to their car but, by the time they got there, his friend was feeling dizzy and starting to pass out. My client ran back to ask the policeman to call an ambulance, but the police officer got angry and threatened to arrest him.
My client was left to drive his friend to the ER where, when asked what happened, told the admitting nurse his friend had been struck on the back of his head by a policeman. Unknown to my client, the ER reported the assault to the police and, when the dispatch call went out, the police officer with the billy club responded to the ER where he used it again on my client in the waiting room. To hear the police officer tell it, my client was drunk and disorderly, resisted arrest, and assaulted him. In addition to getting a good beating, my client was charged with assaulting a police officer, a felony carrying up to ten years.
Police officers falsly accusing people they beat up during an arrest of assaulting them is a common ploy to cover up their own wrongdoing. It usually works and the prosecutor assumed my client, like most everyone else in such cases, would accept a plea to the lesser included offense of resisting arrest, a misdemeanor carrying only one year with a recommendation of probation. But my client was adamant he wasn’t pleading to something he didn’t do. When my client refused to plea, the judge felt compelled to remind him and me of the ten years she could impose if he were convicted.
As compelling as your client’s story may be, if you’re going to call a police officer a lying thug in open court, you need solid proof. My client’s friend was in with the doctors and didn’t see what happened. My client never had a chance to get the names of any witnesses in the ER that night before he was dragged off to jail. The security camera didn’t cover the area near the payphone where the assault occurred. And, and the security guard on duty in the ER that night developed sudden onset amnesia not wanting to buck the cops. Joe really proved his resourcefulness and worth finding a witness for me.
Joe had the gift of being able to fit in anywhere, move about without hardly being noticed. He camped out in the ER for several days and learned the name of the nighttime janitor working on the night of the assault. It took him a day or two more to become friends with the janitor and speak with him. Joe learned the janitor not only witnessed the unprovoked beating the police officer put on my client but was shocked by its ferocity. Finding a witness is only half a PI’s job, the other half is getting them to agree to testify. Joe convinced the janitor of the righteousness of his testimony and gave him the courage to come forward.
The prosecutor never bothered to find any witnesses and was planning on relying exclusively on the officer who felt invincible lying through his teeth about what happened. Police aren’t allowed to wear their uniforms in court, but this one wore his shinny badge on a chain draped around his neck. He testified with all the ease and polish of an professional liar or paid expert. With a practiced look of “just doing my job” he testified matter-of-factly, “I was dispatched to investigate a routine disturbance at the hospital. When I arrived on the scene I found the defendant acting in a loud and boisterous manner disturbing the patient’s in the Emergency Room. I approached him and asked him politely, sir, I need you to calm down so I can ask you some questions to which the suspect responded with a string of profanities in the presence of women and children . When I tried to peacefully escort him out of the ER to continue my investigation, he struck me with a closed fist in my chest and I was forced to subdue and arrest him in accordance with standard police procedure.” Smugly thinking he had nailed my client’s coffin shut, the prosecutor turned the officer over to me for cross examination.
You could see the prosecutor’s concern when I thanked the officer and said I had no questions. When I served on the Board of the Trial Lawyers Association, I had the opportunity to hear famous trial lawyer, Gerry Spence, who was in South Carolina volunteering his time to appeal the death penalty sentence imposed on a minor. He addressed the board at our retreat and told us the biggest mistake he saw lawyers make is giving adverse witnesses the opportunity to keep repeating their story on cross examination. As an example, he used an intersection automobile accident. After a witness has already testified on direct he had the green light, he said too many lawyers will cross examine like this: So, you say the light was green when you entered the intersection? Yes, sir, the light was green, plain as day, had been green for a good while. I had to wait for other cars ahead of me to go before me. So, there were other cars ahead of you, did they block your view of the light? No, sir. I had a clear view and could see the light was definitely green the whole time. So, if you had to wait, how do you know the light hadn’t changed to red before you entered the intersection? Because there were only two cars ahead of me and the light stayed green as I entered. Gerry Spence said it was our jobs as lawyers to tell our client’s story as many times as we can during a trial, not to give the other side a chance to keep telling their story. I took his advice to heart early in my career and had no desire to waste time giving this officer the opportunity to repeat his lies about what happened on cross examination. Thesurprised prosecutor rested his case, and I called the janitor Joe had found.
He said he was the nighttime janitor and had worked at the hospital for going on twenty-three years. There was no disturbance in the ER that night before the police officer arrived. He testified with his whole being. When he testified about seeing the police officer walk right up an assault my client, his eyes got big as if he was seeing it live in front of the jurors. His voice broke as he described the viciousness of the assault. No, he did not see my client strike the police officer, he never had a chance before the policeman started beating him. There was an unmistakable ring of truth in his testimony and, by the time he finished, there wasn’t a person in the courtroom, including the judge, that didn’t know the officer was a lying thug. I didn’t have to give an earth shattering closing argument telling the jury what they already knew but did say, ” That may be his badge hung around his neck, but it doesn’t shield him from the truth of what he did.” The jury returned a not guilty verdict no time at all. All thanks to Joe.
Health issues overtook Joe, but, even when he could no longer be a PI, we remained good friends. When my wife returned home early from an out-of-town trip to discover our house overrun with partying teenagers, she knew to call Joe instead of the police. In exchange for nobody getting arrested, Joe had them all cleaning the house with lighting speed. When they finished, Joe called Mary to say she could come home. Thereafter, Joe babysat our house and our poodle whenever we went out of town. All my children knew to call Joe if they were in a jam and couldn’t reach me.
Joe took to driving taxies to make a living and developed a string of what he called “specials,” regular customers he would take care of. Working single mothers who needed their kids dropped off or picked up at school every day, elderly people who needed to be taken to the store to buy groceries or medicines and back home again, and hookers who needed transportation and protection when meeting Johns at night. And, just like with me, Joe made friends with everyone who relied on him.
One night when my boys and I were sitting down for supper, Joe had some time to kill before taking a hooker to her next stop, so he brought her by our house. She couldn’t believe I would welcome Joe and her into my home and soon realized Joe was like a member of my family. While my teenage boy’s eyes about popped out of their heads and jaws dropped to the table, the drop-dead gorgeous hooker couldn’t help telling us how much Joe meant to her. So much so, she declared Joe shouldn’t even be driving his taxi at night anymore cause, “he has Cadillacs in his eyes.” And so, he did, he saw the best in everybody, and it made him one of the best private investigators I ever had the pleasure to work with.
I first met Bobby Howe on the second day of the South Carolina bar exam in 1975. The tension in the air was palpable during the mid-day break when Bobby, a complete stranger, ran up to me and said, “If only I knew the difference between a garageman’s lien and a modis operandi, I’d have this bar exam licked.” I busted up laughing and we became instant friends. Little did I know then Bobby would later become the only client I ever had to be featured in The National Enquirer magazine. When Bobby once introduced me to Judge Ralph King Anderson as his lawyer, the Judge replied in an ominous voice, “that must be a gargantuan task.” And it certainly was but thankfully, I didn’t have to do iot alone. Bobby’s father, Gedney M. Howe, Sr., asked his dear friend and fellow lawyer, Senator T. Allen Legare, to watch out for Bobby after he was gone and I couldn’t have asked for a better co-counsel.
T. Allen Legare was always a fighter. He won the Southern Conference Boxing Championship in 1939. During World War II he parachuted behind enemy lines to blow up bridges and train tracks with the French resistance. I once asked how he could fool Germans with his heavy Charleston accent and he seriously replied, “There wasn’t any talking to Germans, we killed any of them unlucky enough to cross our path.” He graduated from USC Law School in 1941 and was a fixture on Broad Street for 69 years. He was Charleston’s State Senator and was instrumental in creating the South Carolina Port Authority making Charleston one of the main east coast ports. Even on the hottest days, young Broad Street lawyers knew better than to be caught by Senator Legare not wearing a tie and jacket on the street. He was the epitome of a Broad Street lawyer perfectly melding politics and the law.
One day, walking to the courthouse I ran into him with one hand on top of a parking meter and the other flailing furiously in the air. I asked, “Senator, are you okay?” He smiled and said he was on his way to a court hearing and was practicing being indignant. Semi-retired when I first worked with him, he would still come into his law office every day to read South Carolina’s major newspapers and answer correspondence. He fittingly lived below Broad in a beautifully renovated home on Legare Street and threw a yearly Frogmore Stew party for lawyers and judges on his Wadmalaw Island plantation. I never dreamed I’d get to work with him, but I did in two high profile cases both involving Bobby Howe.
The first case, my only case that made it into the National Enquirer, occurred when Bobby was caught digging up the backyard of an arrested Hilton Head Island drug smuggler looking for a 120-quart fishing cooler full of cash. Bobby had asked the prosecuting U.S Attorney if his client could receive a downward departure under the Federal Sentencing Guidelines for turning in a huge sum of money (presumably the contents of the cooler less Bobby’s fee) and had been told he could before Bobby set foot on the client’s property. The problem was the property had been seized by the Federal government as the fruit of the client’s lucrative smuggling business. When Bobby’s face appeared on the evening news and in the newspapers, Senator Legare reached out to me to offer his help.
I told Senator Legare I had Bobby checked into an out of state rehabilitation facility and he offered to persuade his friend, United States District Court Judge Sol Blatt, who also boxed for USC in the Southern Conference, to continue the case until Bobby could finish treatment. But nothing was ever easy about representing Bobby, and he stumbled over the first step of the facility’s twelve-step rehabilitation program. Instead of admitting his helplessness to overcome his addiction, Bobby told his counselor he was just hiding out until the heat died down back home in Charleston. Apparently this was deemed disruptive and the director of the facility was threatening to toss Bobby out of the program. I dreaded having to tell Senator Legare and, when I did, I thought the phone lines would melt between our offices. I was instructed in no uncertain terms I was to keep Bobby in the treatment facility. It was a test I needed to pass to earn Senator Legare’s respect and, believe me, it took everything I had to convince the director to at least give Bobby a mental health examination before discharging him. Thankfully, Bobby scored so far off the charts for a bi-polar disorder, he was transferred from the Addictive Disease to the Mental Health unit.
I thought the problem keeping Bobby in the facility had been solved but they were just the beginning. The first morning in his new unit, Bobby cracked to his new group, “Yesterday I was across the hall in addictive diseases, today I’m over here with you guys in mental health. I feel like I’m getting better already.” Apparently, getting laughs in group therapy is also considered disruptive. So is getting caught having sex with another inmate in the storage closet, getting caught unaccompanied in restricted areas, and also finagling a prized eggshell mattress cover from an orderly. They don’t teach classes in law school on how to keep crazy clients in rehab so you just have wing it. Fortunately, Bobby made friends with his psychiatrist and together his psychiatrist and I kept Bobby in the program. Loaded up with enough psychotropic medications to choke a horse, Bobby was finally discharged to face the music before Judge Blatt.
Judge Blatt was one of the finest jurists it was ever my privilege to appear before, but he was strict, especially in drug cases. Fortunately, he was also fond of Bobby who practiced law by a different set of rules. One of which was, if you can get the judge to laugh, he can’t send your client to jail. Most of what judges do everyday is anything but fun and a good laugh is always a welcome distraction. Bobby sure knew how to make Judge Blatt laugh but I doubted it was going to enough to save him from Judge Blatt’s wrath. Fortunately, as fond of Bobby as the judge was, he truly loved and respected Senator Legare. You could see the anguish on Judge Blatt’s face when Bobby appeared before him represented by Senator Legare.
The practice of law and politics was always personal to Senator Legare. A man’s word and loyalty to his friends meant everything to him. Before Senator Legare started speaking at Bobby’s guilty plea, I was felt certain Judge Blatt had made up his mind he needed to make an example out of Bobby. Senator Legare began, not with what Bobby had done, but at the bedside of Bobby’s father, Gedney M. Howe, Sr., also a renown Broad Street lawyer and also a dear friend of Judge Blatt. Senator Legare choked up with emotion describing how Big G on his deathbed grabbed his hand and made him swear he would look out for Bobby after he was gone. His vow to their mutual friend cut straight through to the judge’s heart while at the same time put the judge in an impossible position. Not one to ever do that to a friend, Senator Legare, seamlessly switched and began giving Judge Blatt a graceful way out. Senator Legare pointed out Bobby never found the cooler and never took anything, never lied about or tried to conceal what he’d done, and, misguided as it may have been, thought he was helping his client get a downward departure. More rthan that, Bobby had accepted responsibility and sought needed help by voluntarily entering a treatment program where he was diagnosed as being bi-polar and given needed medication. Judge Blatt couldn’t help but see the flashing yellow arrow to the exit ramp Senator Legare plowed for him and readily headed in that direction. So, he’s been discharged from the hospital? Yes, sir, he has but he remains under active medical treatment and supervision. And I can make it a condition of any sentence I might impose that he’ll continue such treatment and monitoring to make sure he continues to get help? Yes, sir, absolutely and your Honor knows I will continue to honor his father’s dying wish. Judge Blatt’s sentence of two years’ probation, with continued treatment and medication, but no referral for disciplinary action, was more than either Senator Legare or I could have hoped for.
A great result but it turned out keeping Bobby on probation wasn’t any easier than keeping him in the rehabilitation facility and it wasn’t long before Bobby got himself embroiled in another newsworthy spectacle. A young female law clerk working for Bobby’s brother alleged Bobby and a Circuit Court Judge Bobby’s brother wanted removed from the bench offered her cocaine in the bathroom at a party hosted by the Deputy Solicitor. Bobby flatly denied the allegation quipping, “I may be crazy, but I’m not stupid.” The Senate Judiciary Committee decided it needed to hold a hearings and issued a subpoena for Bobby’s appearance. While I advised Bobby needed to bide his time in an unknown location, I reached out to Senator Legare for his help a second time.
I delicately explained to Senator Legare Bobby there was no truth to this young lady’s allegation, but I was reluctant to open Bobby up to questioning under oath by the committee. Senator Legare asked how I proposed we allow Bobby to testify but limit the questions he could be asked? I explained Bobby would answer any question about the alleged incident without limitation, but asking him questions about other, unrelated matters would invade Bobby’s right to privacy, jeopardize his probation, and possibly affect his ability to continue to practice law. The argument was about as nuanced as a legal argument can be but Senator Legare, even in his mid-eighties, had a sharp legal mind. He loved our lengthly conversation about the right of privacy not being included in the Constitution’s Bill of Rights but being recognized by Justice William O. Douglas as being necessarily implied by the penumbra of the rights expressly guaranteed.
With Bobby in the back seat, I picked up Senator Legare and we set off driving to Columbia to meet with Senator Smith, Chairman of the Judiciary Committee. As good a lawyer as I might fancy myself to be, I fully acknowledge I never would have gotten a meeting with Senator Smith if it wasn’t for Senator Legare. We were greeted by Senator Smith like long lost friends which I sure the senators were. They exchanged handshakes and pleasantries before Senator Smith sat behind his desk and asked what he could for Senator Legare. Senator Legare got right to the point and got the same response from Senator Smith that I got from him when I suggested Bobby’s sworn testimonby could be restricted. Senator Smith asked skeptically, “Now Allen just how am I supposed to do that?” Senator Legare launched into such an impassioned argument for the right of privacy you’d have thought he’d discovered the right all by himself. Still Senator Smith was non-committal and said he’d have to speak with the other committee members. Senator Legare got up abruptly and turned to leave but stopped, turned back to the senator and barked, “If your brother was still alive, we wouldn’t even be having this conversation.” I have no idea what Senator Legare was referring to, but I could see it made a deep impression on the senator.
Still not knowing whether to risk allowing Bobby to testify, we decided to wait and see how things developed in the hearing. Senator Smith was the last to enter the chamber and take his seat. He began the hearing with an admonition to the other committee members he was not going to allow the hearing to become a circus and was going to limit all questioning strictly to the matters at hand to preserve the witnesses’ rights of privacy. Senator Legare nodded all would be okay and Bobby was sworn in as a witness. Bobby absolutely, unequivocally, and in no uncertain terms denied the allegation. In true Bobby fashion in no time he had the committee members laughing about the absurdity of thinking a sitting circuit court judge would be snorting cocaine with some unknown girl in the Deputy Solicitor’s bathroom.
Too many lawyers get to thinking too much of themselves. That only they can win a case. When I think back over my career, I think of all the great lawyers it has been my privilege to work and try cases with. Lawyers who helped me win way more cases then I ever would have won on my own. T. Allen Legare was one of the finest lawyers I have ever known and worked with. The epitome of a true southern gentleman. He honored a commitment he made to Bobby’s father and helped me win two high profile cases I couldn’t have won without him. All he ever asked in return was my respect, loyalty, and friendship all of which were gladly given.
Some law firms and lawyers treat their staff like automatons expected to do only what they’re told. The truth is, every great lawyer I have ever known, without fail, has had a dedicated assistant working, not for, but with them. Molly was mine, she was Della to my Perry. A lawyer I admired very much, Coming Ball Gibbs, referred her to me when he heard I was looking for a new legal secretary. Years later he confided, however, when I thought I was interviewing Molly for the job, she was actually interviewing me. Luckily, I passed muster and got the job. We worked together for so many years I’ve lost count, twenty-eight I think. Over those years she became so much more than just my legal secretary, she became my administrative assistant, paralegal, office manager, co-counsel, editor, accountant, therapist, confidant, life coach, and, most importantly, my friend. Our lives became so entangled, there is simply no way to separate my career from our career together.
So much so trying to pick a story to illustrate what she meant to me and my practice was almost impossible but I think the story of the arson case she solved for me comes closest. Although it was never part of Molly’s job description to review the evidence in my cases, she made up her own job description and did pretty much whatever she thought needed doing . I soon got used to it and learned to appreciate how her keen eyes often saw things that slipped my attention.
I was hired to defend a guy accused of burning his own house down for the insurance money. A racial slur that had been spray painted on the house before the fire motivated SLED to get involved. The problem was SLED focused more on my client starting the fire than it being racially motivated. SLED appointed a team of forensic arson investigators under the command of the seasoned Special Agent in charge of the arson squad. And they were thorough, so thorough they buried me under a mountain of evidence the week before trial that the Special Agent argued proved my client’s guilt beyond a reasonable doubt.
It wasn’t hard to get the gist of SLED’s case against my client from the official report of its investigation. The racial slur was a ruse to conceal the real motive for the fire, good old fashioned greed. Chemical testing and analysis proved the gasoline fueled fire was deliberate. The owner’s gas can, covered in his, and only his, fingerprints, left in the interior hallway after it was doused with gas and ignited had miraculously survived the flames. But the evidence tying my client to the fire was circumstantial and allegedly contained in the mountain of evidence SLED dumped on me. There were banker boxes filled with business and bank records allegedly showing my client’s industrial maintenance company was heavily in debt and going bankrupt. Hundreds of photographs of the burnt-out house allegedly showing that valuable property had been removed from the house before the fire. And there were was a file of indecipherable cell phone tower data for the tower near the house off which my client’s cell phone pinged during the fire contradicting his statement he wasn’t there.
It really didn’t help that my client had ready answers for almost everything. The property was located out in the country a good ways north of the Santee Cooper Lakes in the Francis Marion National Forrest. My client and his wife planned to live out there full time, with my client commuting to work and his wife pursuing her passion for breeding dogs, but they were still renovating the house and hadn’t fully moved in yet explaining the relatively empty closets and dresser drawers. Although my client couldn’t recall any overt racial threats, he was more than willing to talk about how he felt unwelcome in the otherwise white community. He admitted his business was having difficulties but claimed that was nothing new, it had happened before, and all it would take was one good contract to get back on his feet again like he’d done many times in the past. But the problem from a lawyer’s perspective is having to explain too many things away in a courtroom itself raises suspicions in jurors’ minds, suspicions a skilled adversary can easily exploit. And, like I said, he had excuses for almost everything but not everything. Like why his cell phone pinged off the cell tower near the burning house. The only good news, as I saw it, was the last-minute evidence dump suggested the Special Agent was trying to hide something and all I’d have to do is methodically go through the entire mountain evidence piece by piece until I found the needle in the haystack. Fortunately, Molly offered to help review, organize, and label all the photographs.
Something that endeared Molly to me and everybody who knew her was the way, when she heard a good joke, was surprised by someone or something, or really if anything tickled her in just the right way, she’d let out an unmistakable snort. It sometimes took people by surprise the first time they heard it, but Molly’s good-natured acceptance of her own foible quickly put everyone to ease. That’s what I heard when she was going over the photographs, that unmistakable snort from her desk, and I knew instantly she’d found something.
I waited and soon enough she stuck her head in my office to ask if I had a moment. Of course, I told her, and she entered handing me a photograph with a look of pride on her face. I looked at the photo but only saw a pair of slightly singed women’s high heeled shoes. I must have had a quizzical look on my face because she let out an exasperated sigh, and said, “Oh, my dear boy, those are not just any old high heeled shoes, those are Manolo Blahnik high heeled shoes.” She waited for the light to go off and, when it didn’t, she explained the significance of the shoes to me.
“You know how the SLED investigator said valuables had been removed from the house before the fire? Well, he’s full of shit,” Molly said bluntly. “If you’d watched the TV show, Sex in the City, you’d know those are Manolo Blahnik high heeled shoes that retail for nothing less than a grand. No woman, and I mean no woman,”Molly emphasized, “would ever leave a pair of Manolo Blahnik high heeled shoes in her closet to be burnt up in a fire.”
The light did go off and I immediately saw how the photograph would make it seem on cross examination like SLED’s Special Agent must have ridden the short bus to agent school but that lawyer in me also knew the prosecutor could easily suggest my client, who was accused of the arson, who was every bit as ignorant about his wife’s shoes as I was, who left the shoes. Fortunately, like I said, Molly and I worked together, the operative word being worked, and we got to it.
Molly was on to something and so we both dug in. If the Special Agent could make such a glaring mistake about thousand-dollar shoes, what other mistakes had he made? We went back over the photographs one by one and soon discovered item after item of valuable property that had been left behind in the fire. Molly quipped almost under her breath how hard it was to pick things out of SLED’s photographs the burned-out wreckage and mentioned how helpful it would be if we had some photographs of the house before the fire. I asked the client, and his wife remembered they’d spent Christmas about a month before the fire at the house and she had an undeveloped roll of film that had been taken Christmas morning.
Armed with the new photographs, we could trace everything shown in the Christmas morning photographs to the rubble on the floor shown in SLED’s photographs taken after the fire. Large, flat screen tv, shown hanging on the living room wall Christmas morning? Still right there all burnt up in the blackened debris on the floor. We hadn’t found a smoking gun proving my client’s innocence, but we’d found the death by a thousand cuts of the prosecutor’s case. Remember what I said about having too many explanations being the kiss of death? It applies to prosecution witnesses too. After the Special Agent tried but failed, again and again, to explain away the obvious truth, he was forced to admit his expert opinion valuable property had been removed before the fire was, well, as Molly put it, full of shit.
But what about that pinging cell phone data? The prosecutor saved the cell phone technician for his last witness, thinking he’d finish strong but, by the time he called the technician it was too late. The young technician lacked the Special Agent’s experience giving canned testimony and readily admitted how much he didn’t know. Like exactly how far did the signal of the oversized tower in National Forrest near the house actually reach? “I don’t know” answers to carefully worded questions are the stuff reasonable doubt is made of, and the technician was glad to oblige. In the end nobody, not even the technician, knew why my client’s phone pinged off the tower.
Having made my defense through the prosecution’s witnesses, I elected not to call any witnesses and thereby secured the last argument. I saved my best argument, the one Molly gave me, til final argument. It is always a good idea to tell the jury whenever somebody gives you a good jury argument. I’ve always found a little humility goes a long way in the courtroom. So, I gave Molly the credit she was due. “Now, I admit I know next to nothing about women’s high heeled shoes, but thank God, my secretary Molly does. She’s apparently not only an expert on women’s high heel shoes but on the TV show called Sex in the City. She says she watched every episode and knew right off the shoes shown in the Special Agent’s photographs of the defendant’s master bedroom closet were Manolo Blahnik. She knew because they were featured on the show as a recurring theme episode after episode. She tells me they retail for upwards of one thousand dollars. No wonder Molly says no woman in their right mind would ever leave a pair of Manolo Blahnik high heeled shoes behind in a house fire,” I entoned in my and the final argument knowing the proseutor wouldn’t have a chance to respond. I knew I had a not guilty verdict when every woman on the jury nodded in agreement.
But this isn’t a story about an arson case or a trial victory Molly won for me, it’s a story about how important my relationship with Molly was to me and my practice. She not only lifted me up being my biggest cheerleader, but she was also the anchor that tethered me to the ground. Her intelligence and wit were as much a part of my success as my own. And, to top it off, her good nature made practicing law fun. The point of this story is, if I only expected my staff to do what I told them to do, I’d have missed out on everything Molly offered to take my practice to the next level.
Next time, instead of asking your staff for a cup of coffee, ask them to sit down and drink a cup with you, ask how they’re doing, for their opinions about the work you’re doing, and how they can help. You may find your practice excelling when your staff starts working with, not for, you.
Lawyers like to brag about their criminal not guilty or personal injury million-dollar verdicts but sometimes satisfaction practicing law comes from handling seemingly ordinary matters. It fell to me as the youngest associate in the firm to handle a request for a name change made by a senior partner’s client about to receive a large PI settlement. He wanted to change his name from Rochester Pressley to Ze Ze Zellazorro to better reflect his Puerto Rican heritage. Never having done a name change, all I had to figure out how to do one and, fortunately, it turned out to be pretty straight forward. All I had to do was just draft a petition to the then County Court, attach an affidavit the client had no criminal convictions, bankruptcies, or outstanding judgments, wasn’t seeking to avoid creditors, publish a notice in the local paper, and draft a proposed order for the judge to sign. Piece of cake, or so I thought. The case was assigned to the Honorable Lester Legare Bates of the Richland County Court usually a most friendly judge. It turned out, however, Judge Bates had trouble wraping his brain around the name Ze Ze Zellazorro or anyone wanting to better reflect their Puerto Rican heritage.
I was anticipating just a routine hearing. Hearings like this were conducted informally in the judge’s chambers and always began with Judge Bates asking, “What can I do for you, my boy?” I sensed something was amiss when I didn’t get a “my boy” at the beginning of the hearing. And things went downhill from there. To put it simply the judge felt I was wasting his time. He began to pick apart my petition. “How do you know your client doesn’t have any criminal record?” “Well, your Honor,’ I stammered, “He said he didn’t have one and his SLED record check came back clean.” A muffled harumph was all that got me from the judger. “What is the meaning of this ‘Ze Ze Zellazorro,’” the judge growled, “Is it some stage name he wants to use?” “No, your Honor, his parents migrated to the United States from Puerto Rico back in the 1960”s and his father changed their name to Pressley to better fit in. My client simply wants to go back to his family’s original name, Zellazorro.” Apparently not satisfied, the judge asked his clerk, Mr. Chitwood, to swear my client in and began questioning him in a gruff and demeaning manner.
Things got testy when the judge indicated he thought my client wasn’t an American citizen and seemed genuinely confused when I told him Puerto Ricans were granted American citizenship by the Jones-Shafroth Act in 1917. The judge went allegation by allegation through my petition demanding sworn verification of everything. My client stood his ground and directly answered each question. I could see the judge’s complexion darkening with each affirmative answer. I guess he expected the sneer in his voice would intimidate my client and get him admit some falsity in his answers. You could sense the judge’s frustration mounting when it never happened.
Exasperated, he asked if I had any questions. I thanked the judge although I was unsure what for, and asked my client about his service in the Army and two tours of duty in Vietnam. The judge’s attitude immediately changed. He cut me short and, with a great flourish, signed my proposed name change order. “Here you go, my boy, anything else I can do for you?”
“What just happened?” the newly named Ze Ze asked as soon as we were outside of the courthouse. “I thought you said it was just gonna be in and out, no big deal.” “I have no idea, I guess the judge took offense to something, but I don’t really know,” I replied. Ze Ze thought for a moment before saying, “I do. I’ve faced such discrimination all my life. It’s part of the reason I wanted to change my name, because I’m proud of my heritage. I want to thank you for sticking with me and not backing down.” It may have been a miniscule victory in the long struggle for civil rights in Americsa, but it meant a lot to me because it meant a lot to my client.
It had to be a year or so later when the receptionist buzzed saying there was a call for me from a Rochester Pressley. I picked the phone and asked, “Ze Ze?” He laughed and said, “I didn’t think you’d remember.”
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