Wednesday, August 26, 2009

Representing Santa Claus: a memory from early in my law practice

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.

Tuesday, August 25, 2009

A Day in Court for a Couple of Assistant District Public Defenders

We had two lawyers in court today to represent around 50 clients. We started court at 9:00 a.m. and we went straight through until 4:30 p.m. without any lunch-break. Some clients had to wait a long time before we even talked to them. There were about 15 people in jail and the rest sitting out in the court room. Now that I think of it, we probably had closer to 60 clients, but that's the point, I don't even know for sure, there were so many. And, we were supposed to carry out our professional duty as criminal defense attorneys for every single person. I had one guy with an aggravated assault charge, another woman with an aggravated robbery charge, and there were a few lower level felonies and the rest misdemeanors: DUIs, misdemeanor thefts (shoplifting), Driving on Revoked License, Drug possession, Assault, Vandalism, Criminal Impersonation, etc. At times I was talking to two or three clients outside the courtroom in the hallway; at other times, I was talking to the D.A. about three or four cases at once; other times, I was talking to one of my clients in the inmate group, and then interviewing an officer about a case I was dealing with. A few clients would let me know they really needed to get through to get to a job or a medical appointment or because the person who gave them a ride was having low blood sugar trouble and needed to go. I basically said: "I'll get you out of court as soon as I can. We have a few too many cases today."

And, there was a point today when we weren't even adversaries with the D.A. - hell, I think we even felt sorry for her, and she felt sorry for us! She even picked up my lunch I had left over at the Public Defender's Office and I wolfed it down why we were working out cases. What an overwhelming mess of human problems to handle, whatever side you were on. We could see it in her face, and she could see it in our eyes - "if we get through with today, I will find another job, live another life, never come back here again!!!" So many people, so many upset people, so many people who are expecting this and that. So many people in so much trouble, so much of it such stupid trouble. So many people without jobs, without anything much to do, not taking care of much of anything very well. Just living on. Most of these criminal defendants were not doing anything too awful, but just plain not seeming to do much at all very good either. It is the doing nothing much that really lands them in such deep shit. When you do nothing over and over and over again, you dig a pit that's very hard to get out of. And, then a number of our clients have just made some mistakes as young people that so many of us made without getting caught.

In the Public Defender's Office, we get some sense of the pit our clients are in, and we try to help them take a step or two out of it - then the rest is up to them. It seems like we ought to walk at least a few more steps with them. But, we are damn good at helping people get another chance, helping them make it out of the pit. We can't get everybody another chance, but we do it a whole lot. And, sometimes with so many people, they've been down for so long and without anyone standing by them for so long, that when you take their case, assert their rights, and win something for them; it may not change their life; but, they do have the experience of having someone take their side, stand beside them for a while. And, we are proud to do that, especially for those who didn't think anybody would really listen to their side and consider their side of the story worth standing up for. And, truth is, we just don't like authority. And, when authority gets out of hand and tries to smash our client like a bug - well, then authority finds out that there are forces stronger than authority.

Tommorrow morning I'll be back in court with about 15 clients, not sure how many in jail, how many out. It will mostly be misdemeanors, violations of probation, but maybe something serious as well. We never know what new cases we will get. There will be young women with babies watching boyfriends in jail suits, grandmothers asking about their grandsons, probably a pregnant woman crying as she is getting put in jail for violating her probation, a mentally ill inmate or two. Most of our clients will be pretty nice; one or two will be real obnoxious and bug the hell out of us. Somebody will tell us something so wierd that we will have to take each other aside a second to talk about it. One of us will get real pissed at either the judge or one of the D.A.s and we will have to take each other aside and talk about it, and then back to business. I'll get paged two or three times about why somebody is late to court. We will be giving advice right and left, making decisions on cases every few minutes, telling our clients their odds on winning their case, on going to jail or not if they don't win their case, etc. Finding out how much jail time our clients would accept and then telling the D.A. that our clients would accept less than they really would, in order to get what our clients would accept.

When you've handled cases for 20 or more clients in a day, it leaves you tired. It is like my nervous energy is all stirred up, and at some point somewhere inside you start to wonder whether you gave people what you should have given them today. Sometimes you get the legal work right, but the people work wrong. Sometimes just taking one extra minute makes such a difference to a person who is worried about what is going to happen to them. I keep trying to find those extra minutes during the court day. It may be that in finding those few extra minutes for clients that we remember what it means to be human. One thing it means is to remember that the person you are dealing with is a human being, which is a damn important thing to be.