McElhaney on Litigation

Tough Call


“It’s Thursday, isn’t it?” said Jamie Torrez.

“Bring me a large bowl,” Maria said to the waiter. “I need deep Green Chili Chicken Soup therapy.”

“What’s wrong?” I said.

“Toughest decision I’ve ever had to make,” said Maria. “Pro bono case. I’m representing a 19-year-old charged with murder. He was the driver who dropped some other kids off at a convenience store, and when they came running out 10 minutes later, firing shots back into the store, he drove off leaving them stranded.”

“He says he had no idea they were going to rob the place—he thought they were just stopping to buy a couple of six-packs of beer. All the others claimed the whole thing was his idea, and when it started going bad he just drove off and left them.”

“So what’s the tough decision?” I said.

“Whether my defendant should take the witness stand,” said Maria.

“That’s easy,” said Mike Torrent. “Let him decide. Af­ter all, he’s the defendant, and it’s his case. You’re just the lawyer. He’s the one who’s going to jail.”

“We don’t know about going to jail yet,” said Maria.

“I was just being realistic,” said Mike.

“Anyway,” said Maria, “I already told him the final decision whether to testify was up to him. He said I was the expert and he would do whatever I thought best. He threw it right back in my lap.”

“Does he have any prior convictions?” said Angus.

“One,” said Maria. “Two years ago for auto theft. All the other defendants have convictions for drugs and various acts of violence.”

“So the violent thieves are ganging up against the peace­ful thief for leaving them at the scene to take the heat,” said Jamie Torrez.

“That’s basically my theory,” said Maria. “All three of the other defendants made sweetheart deals with the prosecutor—and don’t ask me how that happened. It was before I came into the case.

“Anyway, I pushed my theory of the case on my cross-examinations of all the other participants. They had just met Tony—my defendant—for the first time on the night of the robbery. But the three of them were all old friends, and they all had convictions for violent crimes. When the gunshots started and the three of them came running out, Tony took off, leaving them to face the law.

“Then they all made deals with the prosecutor for light sentences. And the only thing they had to sell to get what they got was Tony.”

“Why is it such a difficult decision whether to put Tony on the stand?” said Mike Torrent. “Sounds to me like his story easily passes the straight-face test.”

“Because he’s a terrible witness,” said Maria. “He’s angry, sullen, truculent. His language isn’t merely foul, it’s gross. Whenever you ask him any questions, he lowers his brows and shoots daggers at you with his eyes. I’ve spent hours with him, trying to smooth down some of the rough spots in his testimony, but it just doesn’t work.

“I’ve been learning the old saying the hard way,” said Maria. “Never try to teach a pig to sing. It doesn’t work, and it sure annoys the hell out of the pig.”

“And yet I would hate to see this kid go to jail when there’s more than a reasonable doubt whether he’s guilty. Which is why I’ve been using his story as the basis for all of my cross-examinations. I’m trying to teach the jury to look at the prosecution’s witnesses from Tony’s point of view.”

“Which, by the way,” said Angus, “is a brilliant idea.”

“But at this point,” said Maria, “I’m on the horns of a genuine dilemma. If Tony doesn’t take the stand he’ll be convicted because the jury will think he’s got something to hide. But on the other hand, if he does testify he’ll be convicted because the jury will hate him.”

“It’s the received wisdom of some members of the crim­inal defense bar,” said Angus, “never to put their cli­ents on the witness stand. I think that’s especially true if you don’t know the case, don’t understand the law, or don’t prepare your client for both direct and cross-examination.”

THE HARDEST DECISION

Even the best defense lawyers proceed with caution. Michael Tigar of Washington, D.C., a past chair of the ABA Section of Litigation, says, “My mentor was

Ed­­ward Bennett Williams, and he leaned toward having the defendant take the stand—more than I do. But even so, he would say, ‘A criminal case is like sailing in a storm. If you’re not ahead at the end of the prosecution’s case, you’re already in trouble. And the defendant always takes on some water when he testifies.’ ”

Charlie Daniels of Albuquerque, N.M., says, “The received wisdom of some members of the criminal defense bar isn’t wise. Most jurors want to hear what the defendant has to say. I want to put the defendant on the stand unless there’s a good reason not to—like the prosecution is already behind when they rest their case and you risk resuscitating it by letting them use the defendant to fill in what’s missing. But just remember: Every case is different, and you’ve got to make the decision cautiously.”

James Brosnahan of San Francisco says, “Whether to put the defendant on the witness stand is the hardest decision you can make in criminal practice. And if you decide not to have the defendant testify, you have to do what you can to make up for it.

“One way is to put a surrogate on the witness stand—like a wife or child who can tell the defendant’s story for him. You’ve got to do what you can to make the jury like the defendant.”

But what if you have no surrogate to put on the stand?

“The jury can be made to like a defendant even by just looking at him across the courtroom,” says Brosnahan.

How?

“Sit next to him during all of the breaks. Show the jury you like and understand him,” says Brosnahan. “Make sure he knows that he is not to react to what the prosecution witnesses say about him or how they say it. And there will be no frantic whispering or writing notes. Anxious behavior is bad karma.”

“I once represented a mountain man who was a true loner,” says Brosnahan. “He lived high in the Sacramen­to Mountains, wore big boots and dressed in old jeans and a red-and-black checkered shirt. Had a long, scraggly ponytail. Didn’t look anything like the jurors.

“He was charged with criminal tax evasion because he hadn’t ever paid his taxes. I didn’t put him on the stand, but I did talk about him to the jury. ‘He’s a strange man,’ I said. ‘He’s odd. I’m sorry to say this in his presence, but he is a strange, odd man—but he’s not criminal.’

“He was acquitted.”

Jacob Stein of Washington, D.C., used to defend people charged with street crimes. One defendant he represented would not take the stand. “Call my mother and sister instead,” he said. After they testified, the defendant said, “That doesn’t look so hard. I’ll take the stand.”

After it was all over, the defendant sat down next to Stein and asked him, “How do you think it went?”

Jake turned it around: “How do you think it went?”

His client said, “Well, I told the truth—and I think they fell for it.”


James W. McElhaney is the Baker and Hostetler Distinguished Scholar in Trial Practice at Case Western Reserve University School of Law in Cleveland and the Fred Parks Distinguished Lecturer in Trial Advocacy at South Texas College of Law in Houston. He is a senior editor and columnist for Litigation, the journal of the ABA Section of Litigation.


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