Family Court Judge Warren H. Jolly was always a courageous fighter. He was an Air Force fighter pilot during World War II. He attended law school after the war but was called back into active duty during the Korean War. He later became the Public Defender for Berkeley County fighting for the rights of indigent defendants befdore he became a Family Court judge. I had the privilege of appearing before him many times before he retired in 1988. If he had a fault as a judge, it was that he agonized over making decisions but not in one case of mine he presided over.
A young boy was caught performing a sex act on another boy in the school lavatory. The school reported the incident to the police, which in turn called child protective services. The boy was removed from his home, his father and uncle accused of child sexual abuse, and his mother left devastated. It was his mother who hired me to appear with her at the emergency removal hearing in the Family Court.
The child protective services case worker testified the boy said in his forsensic interview he got up in the morning and his father had anal sex with him. Then, after breakfast, his uncle had anal sex with him. Then, later that day, his father and uncle took him to a motel where their friends had anal sex with him. I prefaced my cross examination of the case worker with an admission I didn’t know anything about anal intercourse, but I didn’t think it was physically possible for a young boy to engage in anal sex with so many grown men over the course of one day. To my utter amazement, the case worker responded, “Oh, we don’t believe what he said happened happened but, because he said it happened, we believe something must have happened.” I didn’t think that rose to the level of probable cause to believe the boy was in imminent danger but, this was only a temporary hearing, and the presiding Family Court judge wasan’t so sure and ordered that the boy be placed in a foster home pending a hearing on the merits.
The mother didn’t believe what the case worker said had happened and was determined to fight on to get her son back. She felt she had no choice but to request the father vacate the marital home. He complied but took his financial support with him leaving her in dire financial straits. We were waiting for a hearing on the merits to be scheduled when we were summoned back to court for another temporary hearing because the boy was acting out in his foster home. The new Family Court judge assigned to hear the matter accepted the case worker’s recommendation that the boy be placed in an industrial school for boys.
I’m not sure the ink was dry on the judge’s signature to the new placement order when we were called back to court for yet another temporary hearing. This time because the boy had broken out the windows at his new school claiming he’d been sexually molested by one of the counselors at the school. Again the Family Court judge hearing the matter accepted the case worker’s recommendation the boy be transferred to a special program for emotionally disturbed children in the upstate.
The law requires that a hearing on the merits in removal cases must be held within thirty-five days. Thankfully, we drew Judge Jolly as the judge for our merits hearing. The mother and I sat at counsel table waiting our turn as the case worker reviewed the case history and how it was the boy ended up camping in a teepee outside of Walhalla, South Carolina, where he was learning to control his anger issues. As Judge Jolly sat listening to the testimony, his complexion and facial expression got darker and darker.
Judge Jolly had gone bald in his later years and had a comb over undoubtedly held in place by hairspray. From time to time on the bench, as he listened to testimony, he would rub his hand through his hair disturbing his comb over. As he became more and more disturbed by the case worker’s testimony in this case, his hand started rubbing his head harder and harder to the point where his hair was starting to stand up on end. Seeing this the poor mother, leaned over and whispered in my ear almost in tears, “Oh, my God, is this clown going to decide my son’s future?” I struggled to keep from laughing because Judge Jolly was looking a might clownish the way his hair was sticking out but I whispered back, as best I could, the mother should be patient because Judge Jolly was a good judge and I was confident he would do the right thing.
Perhaps sensing the mother’s anguish, all of a sudden Judge Jolly banged his gavel to stop the case corker’s testimony and announced, “That’s enough! I’ve heard enough. I don’t care what happened in this boy’s home, it couldn’t possibly be any worse than the abuse DSS has inflicted on him since he’s been in your custody. Case dismissed.” It hadn’t even taken the length of the case worker’s testimony for Judge Jolly to decide this case.
The mother was so happy she started crying. She’d lost her husband but had gotten her son back. She and her son were both crying when they reunited in the hallway outside the courtroom. I remained friends with the mother and represented her on other matters as the years passed by. She acknowledged he was gay but said she’d accepted that with all the love in her mother’s heart .When I asked how he was doing, she told me he was all grown up, had finished cosmetology school, had his own salon, and was healthy, and happy. With a proud smile she asked, what more could a mother ask?
Too often there are no winners in the Family Court but this case was an exception because of an exceptional judge. Judge Jolly was a courageous fighter who had the courage to buck the system all too willing to define homosexuality as deviant behavior instead of a natural fact of life.
Jury trials are supposed to be a search for the truth, so it only makes sense Rule 3.3 of the Rules of Professional Conduct prohibit lawyers from making knowingly false statements of fact to the court or juries. Unless, that is, the Rules of Evidence require lawyers to lie. Without any empirical evidence that I’m aware of supporting such a bizarre notion, the Rules of Evidence not only sometimes allow but require lawyers to lie to prevent feared prejudice against poor, defenseless insurance companies.
It not like other lawsuits aren’t brought against insurance companies. Claims for storm or fire damage under homeowner insurance policies are routinely brought directly against the insurance companies. I’m not aware of juries uncorking on homeowner insurance companies for no good reason in such cases. Even if juries do get overly enthusiastic every once in a while in such cases, there are post-verdict motions and appellate courts to moderate any unjustified awards. But, when it comes to run of the mill wreck cases, however, the Rules of Evidence are convinced the mere mention of the word insurance will result in dimwitted jurors being completely dethroned of any semblance of reason and fairness. So much so, wholesale lying to juries is not only allowed, it is required.
It starts when lawsuits are initially filed. Lawsuits to collect personal injury damages under an automobile insurance policy are brought, not against the real party in interest, the at fault driver’s insurance company that will actually pay any judgment, but against hapless drivers. The Court tells the jury at every stage of a trial that the defendant is the driver and they have to return a verdict for or against the driver. Insurance company lawyers that are hired and paid for by the insurance companies lie and say they represent the driver. It may be true jurors, who are required to pay exorbitant automobile insurance premiums themselves, sometimes ignore the lies and figure out who the real party at interest is but relying on juries to figure out they’re being lied to is a piss poor way to seek the truth in a courtroom. Too often it doesn’t work and human jurors easily swayed by sympathy can deny injured persons the damages they deserve. Let me give you an example from my own experience.
A wonderful, elderly grandmother helped her working, single mother daughter out by providing after school childcare for her grandchildren that her daughter couldn’t otherwise afford. Every day, she would pick up her grandchildren from their rural school and keep them until their daughter got home from work. The grandmother was retired and struggling to make ends meet herself on her meager Social Security benefit. Her advancing arthritis brought on from her own lifetime of hard work made it physically difficult for her to pick up the children but, she didn’t complain because that’s what grandmothers do. I certainly never became a lawyer so I could sue wonderful grandmothers but that’s what I was forced to do when her automobile insurance company offered a ridiculously low a settlement my client would agree to accept.
I knew I was in deep trouble with the jury when the practiced insurance company lawyer feigned compassion as the grandmother he’d dragged into court slowly hobbled up to the witness stand on her shaky cane. It broke the juror’s hearts just like the insurance company lawyer intended. He plucked their heart strings playing a symphony of sympathy. After plowing the fertile ground about her being on her way to pick up her grandchildren from their school, he revealed his claimed reason for the collision. It seems that gap between the hood of your car and its windshield, where the wiper blades retreat when not in use, and where leaves collect and get soggy is a perfect habitat for the Lowcountry’s ubiquitous singing tree frogs. As grandmother was driving down the State Road leading to the school, following my client who was getting ready to turn into his driveway, a tree frog jumped out of the gap right onto the center of her driver’s side windshield. The look on the terrified little frog’s face as he hung on for dear life startled grandmother. She froze not wanting the smear poor creature with her windshield wipers just as my client was starting his turn. She tried to stop but her car caught the right rear of my client’s car and pushed him into the ditch that ran along the edge of the highway for drainage.
I don’t blame the jury for their verdict, it was understandable. I was disappointed for my client who’d had prior lumbar spine surgery and suffered a significant aggravation of his sciatica that didn’t settle back down until after a series of rather expensive epidural steroid injections. Fortunately he understood their verdict wasn’t my fault. He was a very nice man who felt sorry for the grandmother too. The insurance company lawyer probably laughed about the verdict all the way back to his office.
I can’t help but think, if the jury hadn’t been repeatedly lied to throughout the trial, the result would have been different. My client and I weren’t suing her, we were suing her insurance company that wasn’t elderly, handicapped, and struggling to help her daughter. It was a rich and powerful corporation making huge profits charging exorbitant premiums supposedly to compensate persons injured in wreck cases. It wasn’t the tree frog’s fault, it was the fault of the Rules of Evidence that countenance lying to juries to protect rich and powerful insurance companies.
We don’t recognize the legal maximum res ipsa loquitor, which literally means “the thing speaks for itself,” in South Carolina, but it seems to me it speaks for itself that telling lies is never the way to find truth in a courtroom. I encourage young lawyers still fighting for justice in the courtroom trenches to argue they should be allowed to name automobile liability insurance companies as the real party in interest, to require insurance company lawyers to disclose who they really work for, and explain who will really pay any verdict they return. They’ll need to preserve their exception to the Court’s rulings denying the motions, during the trial, at the directed verdict, and at post-trial motion stages, and raise the issue as part of any appeal. Maybe some young lawyer will make a name for him or her self by striking a blow for truth and justice in the courtroom.
After all the rush and fuss of the holidays, my clients’ had a family tradition. They gathered every New Years Day to eat Chinese takeout. After dinner on paper plates, the women were talking in the kitchen, the men were playing video games in the back room, and the children were gathered in the living room in front of the tv. It was a relaxing way to spend New Year’s Day without anyone having to do the cooking or cleaning.
Unfortunately for them, a new bail bondsman in town needed to work that New Year’s Day. He’d signed up to be an agent for an out-of-state bail bond company looking to expand into the Charleston market. His only qualification for the job was his shaved head and diamond stud earring he thought made him look street tough. All the money to start his bail bond business was fronted by the company in exchange for 50% of the fees he collected and his agreement to abide by their rules and regulations.
Bail bondsman typically charge 10% of the bond set by the magistrate to spring somebody from jail. Naturally, the worse the alleged crime, the worse the defendant’s prior record, and the greater his risk of flight, the higher the bond is set. Most bail bondsmen who risk their own money are cautious about posting large bonds without rock solid collateral, but our wannabe bail bondsman didn’t have any skin in the game and couldn’t resist posting a $250,000.00 bond for a drug dealer. Half the $25,000.00 fee he’d earn before Christmas was just too tempting for our fledgling bail bondsman to pass up.
If he’d bothered to read the rules and regulations he’d agreed to follow, he’d have filled out the forms he was required to use when writing a bond of that size, but he didn’t. If he had filled out the forms, he would have realized he wasn’t authorized to post such a bond without two co-signers possessing verifiable assets, but he didn’t have either and wrote the bond anyway. When the defendant didn’t show up in his office the next day to fill out the paperwork, the bail bondsman got around to reading those rules and regulations and learned if he violated those rules and regulations, the company could seize all of his assets and put him out of business. He was working that New Years Day desperately trying to capture the fugitive before his company found out what he’d done.
The bail bondsman and two hired cronies drove up into my client’s driveway that New Year’s Day just as it was getting dark. They encountered a younger cousin in the front yard and one of the cronies held him on the ground at gun point while the bail bondsman and the other let themselves into my client’s front door. They entered into the living room full of children who screamed. That brought the children’s mothers and fathers rushing into the living room where the shotgun toting bail bondsman ordered everybody to get down on the floor. None of my clients complied. The men didn’t need shaved heads or diamond earrings to look street tough; they were the real deal. They were the size of the NFL linemen in the John Madden video football game they’d been playing in the back room. The bail bondsman announced, in a now faltering voice, he was going to need to see all their I.D.’s. Steely eyed, the men replied all he needed to do was get the fuck out of their house. After a silent stand off one of the men testified lasted between 8 and 10 seconds, the bail bondsman and his crony slowly backed out the front door threatening to call the police.
The woman of the house, actually called the police and filed an incident report of the incident but the police didn’t do anything, so the mother came to see me the next day. I filed a civil lawsuit against the bail bondsman and the company he claimed to be an agent for alleging trespass, assault, and intentional infliction of emotional distress seeking actual and punitive on behalf of everyone in the home that New Years Day.
It turned out the bail bondsman didn’t have any liability insurance and an asset check revealed he wasn’t worth the cost of the paper of any judgment against him would be printed on. That left the company he worked for that hired a whole silk-stocking law firm to claim the bail bondsman was an independent contractor as expressly stated in the written contract thye’d signed. They filed a motion for summary judgment to dismiss them and any hope of recovery from my client’s lawsuit.
The law does say you’re not responsible if, for example, a painter you hire to paint your house drops a can of paint on a passerby, but the law isn’t completely stupid and says just calling somebody an independent contractor isn’t enough. It’s a question of control over the manner and means of the work being performed. I argued to the Court hearing the summary judgment motion, the rules and regulations the bail bondsman agreed to follow controlled every aspect of the bail bond business he conducted. Of course, the company’s insurance lawyers argued other inferences, but the Court ruled that whether the bail bondsman was an employee or independent contractor was for the jury to decide and denied summary judgment.
We drew Judge Markley Dennis for our jury trial. I tried many cases before Judge Dennis but don’t remember him enjoying any more than this one. He remained scrupulously impartial, sometimes bending over backwards for the company, to avoid any reversible error. He bifurcated the trial into two parts: one to determine liability and actual damages and the other to determine punitive damages.
I can promise you it wasn’t my lawyering skills but the facts I laid out in my opening statement that won the case. The jury was horrified by what had happened to this family minding their own business in their own home on New Year’s Day. The insurance lawyers’ arguments the bail bondsman didn’t work them, just pissed the jury off further. It was a fun trial. It was the first and only time my wife, Mary, got to see me in a trial. It wasn’t a question if my clients would get a verdict, only how much the verdict might be. I’m sure everybody, myself included, had grandiose ideas how much it would be. Nobody expected a verdict of $90,000.00 actual damages against both the bail bondsman and the company during the liability phase of the trial.
We would still have to come back in the morning for the second phase of the trial to consider punitive damages. Here’s where my lawyering skills came into play. When meeting with my clients that night it became apparent not everyone was happy about the amount of the verdict. While $90,000.00 is no small sum, divided between all the family members it wasn’t enough to prevent discord and suspicion within the family. I surprised them by saying I thought the verdict was more than generous. I told them, in fact, based on the trial testimony it worked out to roughly $10,000.00 for every second they were in the house. Getting people to look at things in a different light is what a lawyer does. If any of my clients had ever seen the inside of a courtroom before, I can guarantee it wasn’t in a civil court, but they were not only street tough, they were street smart. When they heard my $10,000.00 a second argument, they all laughed. I reminded them we still had the punitive damage stage to do but to avoid future friction they needed to agree on how the money should be divided. I suggested since there were three families in the house, each family should get an equal share or one third. They agreed.
The next morning the second phase of the trial never got underway. The insurance company’s lawyers offered to pay an additional $75,000.00 in punitive damages, a to sweeten the deal said the entire amount, $165,000.00 would be paid in 5 days with no appeal. While I advised my clients the jury could award significantly more than that in punitive damages, there was no guarantee. I also explained an appeal could tie up any recovery for a couple of years. My clients met separately and, for their own reasons, decided to accept the settlement offer. My client’s knew what too many lawyers I know don’t: pigs get fed, hogs get slaughtered. I spoke to some of the jurors afterwards and learned they felt they’d already awarded enough punitive damages.
I think of this story, and my client’s enjoying Chinese takeout, every New Year Day.
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.
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