04 April 2005

Trial of the Century

WARNING: Explicit Language

I go to the courthouse with 6 different hearings scheduled in 3 different courtrooms. I touch base with my clients in courtroom B, call for my client in courtroom A (no answer - a no show), and then head down to courtroom D.

In courtroom D, my client is facing a preliminary hearing for malicious wounding (felony 5-20) As well, he has charged the complaining witness with assault and battery and his fiance has charged the complaining witness with sexual battery. I knew it was a different kind of case the first time I got a look at the paperwork. The magistrate had given my client a personal recognizance bond for this charge which is never done for this type of charge.

I get to the courtroom and my client is sitting there with his fiance and two witnesses they have brought. We all go out into the hall and I discuss with everyone what they saw. Then I go back into the courtroom and walk up to the prosecutor. She asks what case I'm there for and, after I tell her, says "Oh, yeah, that cross-warrant thing." Then she points to the name of the attorney representing the other guy and asks if I know who he is. I tell her I've never heard of him and she tells me she doesn't know him either. We talk a little further and I'm left with the impression that she's willing to settle this the way most cross warrants are (if I can make it go away she won't interfere).

As I walk away from the prosecutor a young man stands up and walks up to me: "You must represent Client. I represent Mr. Jones." I look at him and everything about him just screams "newly-minted lawyer." So we walk out into the hall to talk and I offer him the typical deal that any of us long-practicing, cynical defense attorneys would snap up in a second. Everybody involved that night will sign an accord and satisfaction. No muss, no fuss, and nobody gets a conviction on their record.

He balks. He keeps talking to me about his client's medical expenses. I ask him a couple of times if he knows what the facts are and he assures me he has talked to the detective and knows the facts. We talk back and forth and he goes in and talks to his client a couple of times. Finally, he tells me his client doesn't really want my client to go to jail but the best he'll agree to is my client only getting convicted of a misdemeanor (with no time) if all the charges are dropped against his client. I talk this over with my client for a minute and it is rejected. I tell Mr. Jones' lawyer and, realizing that since we are now contested we go to the end of the docket, I go handle my cases in the other courtrooms.

When I get back the case is called. As is typical in cross warrants, both cases are called at the same time. I walk up with my witnesses, the detective walks up with his witnesses, and the other defense counsel walks up with his client. The other defense attorney moves for witnesses to be excluded and the prosecutor calls the first witness (my client's fiance).

Her version of the events:
"We're at a bar with some friends and this drunk guy comes up behind me and runs his fingers through my hair and starts talking about 'what he could do with this red hair.' I turn around and tell him to stay the fuck away from me."

"Later, the guy comes back, grabs my hair and pulls it back telling me he's going to fuck me. My fiance runs him off."

"My fiance goes to the bathroom and this guy comes up from behind me and grabs my left breast." At this point she grabs her breast and demonstrates exactly how he grabbed her to the judge. "I push his hand down and he grabs my butt. I tell him to leave me alone that my fiance is coming back and he says, 'I'm going to put him down in 5 minutes and then I'm going to take you home and fuck the dogshit out of you.' Then he got up and walked over to Client and told him 'I'm going to put you down in five minutes and take your girl home and fuck the dogshit out of her.' Then Mr. Jones spat at Client and started to throw a punch but Client shoved him down. Then Client grabbed Mr. Jones by the collar and walked him to the door and threw him out."

"The bar tender told us we had to leave so we paid our tab, Client apologized, and we left. As we went out the door Mr. Jones came at Client again, spat at him and Client pushed him back. A big guy then grabbed Client and shoved him against the wall and told him 'You need to get the fuck out of here.' Then we left."

All-in-all, it's pretty powerful testimony, made all the more so by her unabashedly straight-forward description of the night. She just seems oblivious to the fact that she's swearing like a drunken sailor and grabbing herself in front of the judge (who, to his credit, keeps a straight face throughout). Mr. Jones' attorney keeps making annoying hearsay objections which are technically correct but accomplish nothing for his case (except to exasperate the prosecutor). Another sign of a brand spanking new lawyer; I remember doing the same sort of silliness myself when I started practicing.

The prosecutor then calls a lady who corroborates fiance's version of everything which happened inside the bar (although less colorfully) and a man who corroborates fiance's version of what happened outside the bar. The second witness even testifies that he saw Mr. Jones leave the scene (after my client had left and police had responded) and he didn't seem to have any injuries. The next witness is the bartender. She really didn't see anything and she was outside handling another situation when my client threw Mr. Jones out of the bar. So she made my client leave.

Then came the son of the bar owner. He was outside when Client went to leave. In his version of the events my client walks outside, says something to Mr. Jones and then shoves him down causing Mr. Jones to hit the back of his head. Mr. Jones' attorney asks a really strange question: "Did he turn as he fell?" But the witness repeated that Mr. Jones had fallen straight backward.

Then the prosecutor stops and tells the judge that at this point she would like to call the defendants to testify. I talk briefly to my client and we agree. My client testifies to pretty much the same stuff his fiance had (though less graphically). Mr. Jones' attorney asks Client if he slammed Mr. Jones' head into the door as he threw Mr. Jones out of the bar. Client looks at him like he's off his rocker and says "No, I opened the door with my other hand."

Next, the prosecutor goes to call Mr. Jones. His attorney says he'll testify but reserve the right to assert his 5th Amendment rights as to some matters. The judge looks dubious but allows it (by this time the case has been going for almost a hour - he would probably have agreed to most anything to get it over with and get his docket back under control).

Mr. Jones testifies that he doesn't remember much from that night - that he's got "post traumatic memory loss." The prosecutor asks him if he went to the hospital. He starts out saying, "I didn't want to . . ." At this point his attorney says, clear as a bell, in front of God and everybody else who cared to listen "Yes, you did."

Almost before the words fade I'm objecting, loudly. The judge asks why and I explain: "Your honor, his client started to answer the question and his attorney corrected him and told him to give a different answer." The judge gives the other attorney a mini-lecture about how he can't tell his client what to say. To be fair, I now think Jones' counsel was just trying to get Jones to answer without commentary; at the time I thought he was telling his client to change an answer. Anyway, the case goes on.

Mr. Jones testifies that he doesn't remember what happened that night but that he had bruises on the front left of his face and two days later his head hurt so much he had to go to the doctor. The doctor found blood in his skull in the front, behind his forehead. It was drained. The prosecutor asks if he has any scars and Mr. Jones points out a crease which runs across his head from his right ear to his left. You can't see the scar but you can see the crease in his hair clearly. With that, the prosecutor rests her case.

Then Mr. Jones' attorney calls Mr. Jones. As he does, he opens his folder; I glance over and see about 15-20 pages of notes, photocopies of the statute and case law, and various other items. I came to court with two pages of notes for a felony prelim and this guy looks like he spent the last full week prepping for two misdemeanors. Another thing which brings back memories of what I used to do when I first started to practice (if I did that now I'd probably be able to handle maybe two cases a week).

So Mr. Jones' counsel pulls out some photographs. He asks Mr. Jones if they are pictures of him after the operation. Mr. Jones confirms that they are. As the attorney hands them to me to peruse I see that they are pictures of the head shaved and the stitches across the skull. Before the judge can see them, I object that Mr. Jones' attorney is supposed to be presenting his client's defense to assault and battery and sexual assault and battery and that photographs of injuries don't go toward a rebuttal of his actions. The judge agrees but says something cryptic about how he thinks the injury's already been proven anyway.

So then it's time for my case in chief. Mr. Jones' attorney has been trying to make some hay with the fact that my client and his fiance hadn't pressed charges until charges were served on them. I ask Client if he even knew Mr. Jones' name before the charges were served and Client states that he didn't and that he he just wanted to get away that night and forget about it all. It wasn't until charges were filed against him that he felt the charges had to be filed against Mr. Jones.

Then it's all over but the arguing. I argue that my client was not the provocateur (yep, I used a $3 word in general district court) and no medical evidence has been introduced as to any wound; therefore, the charge should be dismissed. Mr. Jones' counsel argues prejudice on the part of the witnesses against his client. The prosecutor submits the case.

The judge looks down from the bench and shows a knowledge of the statute which I don't usually see in a circuit court judge. He points out that my client was charged with malicious wounding and that under the statute there are actually 4 different charges and my client should have been charged with malicious injury. He dismisses my client's charge on that basis. Wow. For a while there, I thought I was the only person who'd read the statute and case law in this area but I guess not.

Personally, I think it was a decision based on equity and judicial efficiency; he probably thought there was enough evidence to certify the charge to the grand jury but not enough to convict, considered the circumstances of that night, and decided to use the law to cut this case out of the herd. Not that I'm complaining – I try never to complain about a result which is good for my client and this is the absolute first case I've won in front of this judge since he took the bench.

Then he turns to Mr. Jones. He starts telling him how good a job his attorney did for him (a sure sign of a guilty finding). Then he finds him guilty of both counts. As Mr. Jones' attorney starts his “don't throw my client in jail” tap dance I ask the judge's leave to withdraw and my client and I go outside of the courtroom. When I come back in Mr. Jones has been sent to lockup and his attorney is in the back doing the paperwork for an appeal to the circuit court.

I talk to his lawyer and the young man asks me if I had any advice for him. I tell him you can't do much when you haven't got much to work with and that he should have taken the accord and satisfaction. It's a polite conversation but after I go off and handle another case I think about it and realize that my reply could have been taken as obnoxious. I don't think it was but I look around for the attorney anyway - he's gone.

And thus ends the trial of the century.


Anonymous said...


Can you help us out on Virginia criminal procedure? In California, prosecutors make charging decisions, not victims. If a victim wants to "press charges" it's not legally meaningful.

It sounds like from this account that something else occurs in Virginia. Is this right?


Anonymous said...

I assume your guy was charged under § 18.2-51 or its progeny, which does indeed offer four different charges... but I'll be darned if I can see which one is the "malicious injury" charge is the judge was talking about.

§ 18.2-51 is shooting, stabbing, cutting, or wounding with intent to maim, disfigure, disable, or kill - maliciously it's a Class 3 felony; criminally negligent it's a Class 6 felony. Since you said it was 5-20, you meant the Class 3 version. So the elements the Commonwealth would have to show: (1) malicious; (2) bodily injury; (3) intent to maim, disfigure, disable, or kill.

Since all the Commonwealth has to do at the prelim is establish probable cause, it seems they could meet that burden easily based on the testimony presented.

Of the four other charges in this section, § 18.2-51.1 involves bodily injury to law-enforcement officers, firefighters, etc; § 18.2-51.2 just kicks the Class 3 to a Class 2 if the victim suffers permanant and significant physical impairment; § 18.2-51.3 dings you for injury caused by throwing objects from higher than one story; § 18.2-51.4 involves injuries resulting from DWI.

What charge was the judge referring to?