It was early December of 1996 or 97, and I was appointed to represent a “Mall Santa Claus,” Mr. C., who was charged with doing a very unchristmaslike thing – he was alleged to have fondled two young teenage girls who had been sitting on his lap for a picture. Santa adamantly denied the charges, and it was frankly very hard to tell who was telling the truth: the girls or Santa (he really did look like Santa).
Well, after much preparation, the trial date came, and I had subpoenaed Santa’s elf, who was to testify to what he had seen. But, first, the State had called the girls to testify about how Santa had touched them a little here and a little there and been looking down one of the girl’s blouses, and every chance the D.A. got she threw in some comment about how it was all done for his sexual gratification. We heard from the girls that they had gotten onto his lap for a picture.
After the girls and the detective had testified, I called my first witness – the elf. He was to be my star witness. The man who was dressed up as an elf at the time of the events in question had seen these two girls with Santa during the picture taking, and said he had not noticed anything out of the ordinary, certainly no fondling. But, before he got to that crucial part of his elfish testimony, I was asking him a few preliminary, background questions. I asked: “When were you first employed at the Mall?” He, in his very strong East Tennessee accent, said: “I got “hard on” in November.” And, although he meant “hired on,” we all at once heard “HARD ON,” and we didn’t hear “in November”. No, it all stopped for us at “ I got hard on!” A wave of laughter was building. I saw it in opposing counsel’s look, noticed the judge looking down, and I was feeling this huge almost overwhelming insane desire to approach the bench for a side bar and ask the judge and D.A.: "did he really say 'I got hard on?' and then watch them lose it. As I tried to ask the next question, the words caught as I suppressed my laughter, and I couldn’t move on. I paced back and forth trying to regain my composure, but all I could hear echoing in my head was the very funny answer of the elf: “I got hard on” in this case about the alleged fondling at the Christmas scene in the mall, and after all of the D.A.’s talk about Santa having done this for sexual gratification. I wondered if maybe I could pin it on the Elf! It was at least good, I thought, that Santa Claus hadn’t answered this way.
It seemed like it took me five minutes to move on with questioning, but I think it only took about a minute. It was the longest minute I have ever endured in court, and one of the funniest. I would pace towards the witness, start to break a smile, and turn and pace back towards the defense table to get it back together. It was like being in church during communion when the guy next to you farts. It is the funniest thing that has ever happened in the history of the world - at least in that moment - and you could laugh so loud if you let it out that you would blow the roof off! I really never gained my composure for the rest of that trial in General Sessions Court. Everytime I relaxed just a little bit, I felt like I was going to start laughing and just give in to it and say: "I'm done for today! You can just take me away if you need to!" And, just give in to maniacal laughter. I’m sure the judge would have removed me from court, but probably would have shown some mercy later (I could see him fighting the same demon of laughter up there on the bench). And, to make it worse, I noticed something on the other side of the court room. A few minutes after the elf's answer had gotten to most us, I noticed the one D.A. who was wiping back tears from her eyes whisper to the other new D.A. who apparently hadn't "caught on yet." And, then I see the other new D.A. shaking uncontrollably as she "got it." I had really gathered myself and was doing fine until then. The internal battle started again.
Well, we lost that trial, but appealed to a higher court (in Tennessee, when you lose a trial in General Sessions Court, you have the right to appeal and start over again in Circuit Court). Santa was in jail for a few hours until he got out on an appeal bond. A couple of months later, we won in our new trial before a higher court. The second time around we were entitled to hear the girls’ taped interview with the police right before I cross-examined them. The interview was very revealing. Although the judge didn’t hear the recording of this interview, I was able to question them about what they had previously said, and that was fairly revealing and cast some serious doubt on what had really happened. In the end, the judge said he thought that Santa was too careless in his dealings with girls that age, but that he didn’t believe the State had proven that Santa had any intent to sexually molest anybody.
I think the judge really got that one right. The girls and their families really thought the judge got that one wrong. So, part of this story was very funny, and part of it was very sad. Sad because someone had either been falsely accused of a very bad thing and had to deal with that for months and sad because these girls may very well have exaggerated what happened without concern for harm to another. Or, sad because the girls had been really touched in a way that was very wrong and they communicated it to others in such a way that they just weren't very believable even though they were really telling the truth. As I said at the outset of this, frankly it was very hard to tell who was telling the truth. That is the reason I said that the judge had gotten it right. When it is like that, the State has not proven their case beyond a reasonable doubt, and "not guilty" is the only verdict to announce. I had the feeling my guy was telling the truth, but as I saw those two girls crying at the end (one looked like she was really crying; the other one like she was trying to look like she was really crying) and looking at me like I was Satan himself, I felt the burden of not knowing for sure. That is a burden we bear in this life and as an attorney. You play your role and get some kind of verdict, but then never really get to the root of the problem. Those two girls really did have a problem (or, at least one did). The only question was whether Santa had caused it or whether someone before Santa had caused it and he had just been at the wrong place and the wrong time and gotten caught up in her problem. So, I defended Santa Claus and he was acquitted. That was the end of the legal case. My client died a few years later from cancer, and one of his family members told me how deeply he had appreciated my help in this case - what a burden it had lifted for people to know he was not guilty of such a thing. I wonder how things went for those two girls who are now probably in their mid-20s. If they were lying, the verdict may have helped them. There is nothing worse than being left in our lies when we are growing up. If they were telling something close to the truth, the verdict may have had a bad affect on them.
And, oh yeah, at the second trial I was very careful in how I questioned the elf! Everyone dared me to ask the question about employment the same way I did in the first hearing. Truth was I was scared to call him as a witness after that first experience, but I had to. I was not about to stir that pot again though, so I came up with a simple strategy. I asked a leading question: “You started working at the Mall in November of 1996?” And, it worked like a charm. He said: “yes,” and I moved on. All down hill after that.
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