Friday, June 25, 2010

keeping a straight face

[nota bene: legal analysis is oversimplified for the purposes of this story]
In the jurisdictions in which I practice, there are loitering statutes that are very stringently enforced.  I think it's a broken-window type thing, where they don't want riff-raff hanging around in "high-crime areas", being up to no good, but it also gives the police a reason to search and arrest people who are literally doing nothing - suddenly doing nothing is not only reasonable suspicion, but also a crime.  Often people have a valid explanation for their presence which results in inadvertent burden-shifting - defendant has to prove that in fact he was not committing a crime because he was [talking with a friend he ran into outside the store, waiting for a ride, etc].  Generally on these types of cases, we as defense attorneys try to elicit and verify as many of these facts as possible.
As I was going over one of these cases recently with a client, I was reading to him the 3 different [quite amusing, but not to be divulged here] reasons he provided to the police when they stopped him. 
Client:  Naw, that's not what I said.
WOTL:  Ok, so what were you doing at about that time on that date?
Client:  I was meeting a guy to haul trash for him.  They were doing some construction in the building and he was going to give me a few bucks to clear out the basement.
WOTL:  This guy lives in the building?
Client:  Yeah.
WOTL:  Apartment number?  Floor?
Client:  Uhhhhh, 5 East.
WOTL:  5 East?  You're sure?
Client:  yeah.
WOTL:  The police said you told them 4 North first, then 3 West.
Client:  No, no, no.  It's 5 East.  I'm positive.
WOTL:  Okay, what's the guy's name?
Client:  Um, Donovan.  Donovan McNabb.
WOTL: ................ [slowly] the guy you were doing work for is... Donovan... McNabb?
Client:  [exasperated by his attorney's sheer stupidity]  I told you, he asked me to haul the trash out!  That's why I was there!
Do you:
1.  Share this with on the record in an attempt to show the judge how clearly misguided and false the allegations are against your client, while trying not to giggle?
2.  Send out an investigator to immediately find this witness, assuming that there must be many, many Donovan McNabbs in the world and that the name is mere coincidence, and not a bold-faced lie?
3.  Gently suggest that perhaps community service would be the quickest way to put this case to rest?
And of course, if you're a public defender, the answer is:  all of the above.  Yeah, I sent my investigator out, and yeah, couldn't find Donovan McNabb, and yeah, I fought on the record for my client with mostly-feigned righteous indignation while sharing that story and yeah, no one believed it for a second and yeah, my client resolved the case with community service. 
Judges can get really fired up when you argue these things on the record, and then they start cross-examining you as though YOU were the one who came up with that brilliant nugget.  I love that part of my job is standing there defending this with a straight face.  Yup.  Donovan McNabb.  That's my story.  Stickin' to it.

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