07 February 2006

A Trial

Two years ago Client and another man drove to a factory, picked up some metal scrap, and tried to sell it. When the police showed up at the recycling center both Client and Other Man fled. These facts are undisputed.

Shortly after that event Other Man (OM) was arrested and tried. During his trial he tried to blame Client, but the judge wasn't having any of it. OM was convicted for stealing the metal.

Late last year Client was arrested for the theft of the metal. Last week we went to trial for grand larceny and trespassing.

The prosecution's first witness was the owner of the company which built things from the metal and had scraps piled behind his factory in an open parking lot (marked "No Trespassing). The prosecution asks him to identify pictures of the metal. The pictures are of big squares of metal with parts of the sheet punched out for whatever was being manufactured. The prosecution identifies the pieces of metal as coming from his factory. I stand up and ask if the metal had some sort of dye in it - "No." Then I ask if the metal sheets had some sort of identification number on them - "No." Then I sit down. The judge, realizing what I'm angling toward decides to remove any ambiguity that I might have created. He asks the witness if his company is the only one who manufactures the things his company does which require parts to be stamped out of metal like that - "No, Sir. There are about 12 in the Richmond Metro area." Ahhh . . . If only the trial had stopped at that moment. But of course it didn't.

The next witness the prosecutor calls is OM. OM sits there and tells the same story that he told at his trial. He claims Client told him that Joey Smith had said they could go get the scrap metal and that he was clueless about the whole thing. All he knew was that he would get $100 for each of the two truck loads they were taking to scrap yard. Cross examination went something like this:
Me: Joey Smith is your cousin, isn't he?

OM: Yes.

Me: The trucks used to pick up the scrap metal were your truck and your son's truck?

OM: Yes.

Me: The metal was stored over night at your residence?

OM: Yes.

Me: You were convicted of stealing this metal?

OM: Yes.

Me: Have you been convicted of other felonies?

OM: One other.

Me: Have been convicted of misdemeanors involving lying cheating, or stealing?

OM: I don't know how many times.
With that the prosecutor closed his case in chief.

I make a motion to strike which is quickly shot down.

Next comes the only evidence for my client: Client testifies. The general theme of his testimony is that he was an employee of OM. OM offered him $100 to go pick up some scrap which Joey Smith had told OM he could salvage. They stored the metal at OM's house and then went to turn the scrap in the next day. He never thought to disbelieve his boss when he said it was approved to take the metal. On cross he is asked if he thought it was strange that they were there taking the metal on a Sunday night and again says he didn't think about it because his boss told him it was okay. Then he is asked why he ran when the police came. "I had a warrant for a traffic matter and I didn't want to get arrested." Next, why hadn't he turned himself in two years back when OM was on trial? "I heard about the trial and called the clerk's office to see if I had a charge and they told me I didn't. So, I didn't think there was anything to turn myself in on." Finally, the prosecutor pulls from Client his felony and misdemeanor convictions numbers.

Okay, so neither the prosecutor's main witness nor Client were particularly awe inspiring on the stand. Still, it seems to me that if two fairly equal, weak witnesses come to the stand pointing fingers at each other and one has previously been convicted of the very offense before the bench it's hard not to dismiss the charge placed on the second man (Client). Silly me.

The judge starts talking to my client: "Mr. Client, Mr. OM is certainly not the most reliable witness in the world and in other circumstances I might not put too much credence in his words. However, this isn't other circumstances. I think you're both thieves; you're both lying. I think you both went there that night knowing what you were doing. Therefore, I'm finding you guilty on both counts."

And I wander away from the courtroom wondering what I could have done. I can cross examine the prosecutor's witness as to his claims of the case. I can prep my client to tell his version of the events. I'm just not sure what I can do when the judge goes off an a third angle, different from the version of the events as told by either the prosecutor's witness or the defense's witness.


Anonymous said...

I have noticed this sort of judicial "discretion" quite a bit lately in my practice. If "guilty beyond a reasonable doubt" means that the evidence excludes any reasonable hypothesis of innocence, your description of the case certainly seems to suggest this scenario existed. I unfortunately sense that judges more and more are not entertaining reasonable explanations by unimpeached defendants, but rather listening to them with preconceived notions of guilt.

Ken Lammers said...

Did the prosecution use the "both of them are guilty" theory in both of the trials, or did they use conflicting theories?

I wasn't there two years ago so I don't know the argument used then. He basically argued in this case that someone who went to a place marked with no trespassing signs on a Sunday night, took the metal, and fled when the police came to the scrap shop the next day was guilty.

However, he did at one point state "Mr. OM has already been convicted of this. He's got no reason to lie today." My answering argument was: "Mr. OM was subpoenaed to court today and required to testify. Of course he has an incentive to tell the same story today he told at his trial. If he doesn't he can be tried for perjury."

Ken Lammers said...


Not sure yet. It'll probably depend on how much time the judge gives my client. Client has already served a fair amount of time and by the time of the sentencing hearing may get time served. Most clients aren't interested in an appeal after they get out.

Ken Lammers said...

I unfortunately sense that judges more and more are not entertaining reasonable explanations by unimpeached defendants, but rather listening to them with preconceived notions of guilt.

Well, I can't exactly say Client was unimpeached. It was more along the lines that both Clien and OM were bad witnesses.

ACS said...

Hey, you did the best you could. That's what matters.

If you had a jury, things could have been different, but nonjury trials are extremely difficult (in my view), unless the judge is doing them because of the consent of the defendant. In those cases, judges often try to demonstrate a more lenient reasonable doubt standard in order to encourage time saving (nonjury trials are always much shorter than jury trials, in my experience).