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PostPosted: Fri Oct 04, 2002 8:53 pm 
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Yesterday I finished the third day of a two-day trial. All lawyers reading this are now nodding their heads: "Been there; done that."

My client got into a fight behind a bar in Louisville, KY.

My client was facing 10-20 years imprisonment with no eligibility for probation or shock probation on Assault in the First Degree. The woman "victim" had attacked my client with fists; my client had ended the attack with a knife. Two puncture wounds to the abdomen, not penetrating the fascia around the colon or intestines; one puncture wound to the left breast. Exploratory pericardial surgery was performed and the woman remained hopitalized for a week.

A man had tried, finally and ineffectually, to get between the women while they were still fighting, and had received a slash on his left calf which required no hospitalization. She was charged as to him with Assault in the Second Degree and faced 5-10 years imprisonment, with eligiblity for probation.

There were 29 exhibits for the defense and 6-8 for the prosecution. Jury Instructions went to 22 pages, not counting verdict forms. (!)

The jury was out for 4.5 hours, during which they consumed lunch and one set of snacks. One of my client's friends correctly assumed that if they had called for snacks they would reach an agreement before dinner.

Once we knew there were verdicts we had to wait the longest half-hour (other members of the bar will acknowledge that period of time between knowing there is a verdict and hearing it as an eternity; not even prayer is any good anymore....) to get the prosecutor so that the verdicts could be announced.

Results:

As to the man, Not Guilty on the charge and all lesser included offenses.

As to the woman Not Guilty on Assault in The First Degree; Not Guilty on Assault in the Second Degree; Guilty of Assault in the Fourth Degree - a reckless belief in the necessity of deadly physical force for self-protection, causing physical injury.

Assault in the Fourth Degree is a misdemeanor. We waived the sentencing hearing and agreed to a 12 month sentence in return for a later sentencing date and my client remaining free on her own recognizance until then. She has no felony convictions and a 10 year old Disorderly Conduct: I have every reason to believe her sentence will be probated or conditionally discharged for a period of two years; in five years from its expiration it may be expunged.

In short, I think I did some damned good work, and my client is very happy.

I've been paid; so am I. Image

I intend to add letters to this thread concerning legal tactics; what worked, what didn't. What I did; what I shouldn't have done, etc.

Yes, I'm crowing a bit - and where else will I find people who understand what I'm saying so much?

Image
Murray/student






[This message has been edited by student (edited October 04, 2002).]


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PostPosted: Fri Oct 04, 2002 10:57 pm 
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Congratulations Murry. Looking forward to hearing more about the case. At first it sounded like an "open/shut" case where your client would get the maximum. Must be a lot of information you didn't share with us.

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GEM


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PostPosted: Sat Oct 05, 2002 12:14 am 
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Thank you very much, George.

THE INITIAL CALL

My client called me before the police arrested her. I was not able to determine the extent of her culpability at that time, nor did I consider it the primary question. I needed to know what the extent of her liability was and what we could do to keep her free.

I called the police department nearest her and determined who the lead detective was. I spoke with him, determined the charge would be Assault First (on the woman - the man's case is not yet in play) and arranged a time the next day to turn her in without his having to break down her door, in return for his not protesting if I reached a judge arranging her bond prior to the arrest and his agreement that she had invoked her Miranda v. Arizona rights and that he could book her but was not to question her.

He agreed. I reached a judge, who, on my word that my client was not going to do anything dangerous or foolish, agreed to release her on her own recognizance.

(Everyone was as good as their words, thank God. THe officer did not question my client, the judge issued the release order, and my client showed up timely every time necessary over two years and did nothing dangerous nor foolish.)

I met my client at the police station with my trusty 35mm Pentax and took several pictures of her face (Huge black left eye, slightly smaller right black eye, bruised left forehead, bruised right arm, twisted finger and torn nail on left hand).

After taking her pictures and cautioning her for about the zillionth time not to say anything to anyone at all under any circumstances about what happened at the fight until I had had a chance thoroughly to debrief her (and even after that!!!), the officer took her to be booked. I later found out that the jail had not accepted her because of her injuries and high blood pressure without a check up at the local University Hospital. I subsequently subpoenaed those intake records from the hospital through the jail and entered one as an exhibit to the jury.

In retrospect, these were some of the best things I did for the course of this trial. I established a mutual working relationship with the officer, which neither of us broke. I quickly memorialized her injuries on film, and used 8"x10" blow-ups as jury exhibits. (Well, the prosecution may not have expect the 7"x10" color glossies, as I had submited my original 4" x 5" to their office as part of reciprocal discovery, but no one objected to them, and, frankly, I don't think the fact that I chose a larger size print was objectionable; we do it all the time with documents. It may have been sneaky, though. I'll cop to that.)

The prosecutor has opined that those pictures were my best evidence.

(I realize that the judge who issued the release order went out on a limb for me, and I paused in the typing of this to call to thank her for her faith in my judgment and tell her that this time it had not been misplaced. You don't want to lose credibility with anyone in the system, especially a judge whose ear is open to you.)

More later. Tell me if you're bored by this.

Murray/student


[This message has been edited by student (edited October 04, 2002).]


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PostPosted: Sat Oct 05, 2002 12:30 am 
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You put your reputation on the line for your client. How well did you know her before she hired you?

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GEM


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PostPosted: Sat Oct 05, 2002 1:49 am 
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I had represented her for over ten years, both as a defendant and as a prosecuting witness against her younger child's father, whose support payments were...sporadic.

At the time I didn't think of it as putting my reputation or credibility on the line, but you're absolutely right in that analysis. But remember, she was putting her freedom and future in my hands in the belief and hope that I could deliver.

We are only so good as our last case, our last fight, our last break...our last accomplishment.

More later.

Murray/student

[This message has been edited by student (edited October 04, 2002).]


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PostPosted: Sat Oct 05, 2002 3:40 am 
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Location: Weymouth, MA US of A
Please continue to recap the case, beginning to end, please!

Well done!

Gene


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PostPosted: Sat Oct 05, 2002 9:52 am 
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Thank you, Gene. I have enjoyed and learned from your contributions to these Forums.

As an aside, to those who might wonder why Assault in the Third Degree does not play a part in this tale, it's that the elements of Assault Third are essentially those of Assault Fourth with the addition that the victim is a Law Enforcement Officer - which raises the punsihment to a Class D Felony, i.e., 1-5 years imprisonment, although eligible for probation.

More later,

Murray/student

[This message has been edited by student (edited October 05, 2002).]


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PostPosted: Sat Oct 05, 2002 3:34 pm 
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I find this particular post very interesting, Murray, and pray all your future cases will be as successful, if not more, for you. You a man of great character to be envied.

How long have you been an attorney??

------------------
Allen Moulton from Uechi-ryu Etcetera


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PostPosted: Sat Oct 05, 2002 6:51 pm 
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I have now reached the judge who released my client; thanked her for her belief in my judgment, and explained my thanks.

After all, they always hear when somehthing goes wrong; they should also hear when something goes right.

I've also received permission from my client to write about some otherwise privileged matters. So I will.

Later.

It's a beautiful day here, and I'm not spending it at the screen.

[This message has been edited by student (edited October 06, 2002).]


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PostPosted: Sun Oct 06, 2002 3:06 am 
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Location: Fairfax, VA, USA
Murray,

Congratulations on your case. It's nice ot hear of a lawyer who is honest and hard working. I've had the bad experience of having a mentally ill spouse who seemed to find every dirt bag lawyer on the east coast (Virginia and Mass) Needless to say after spending a fortune to get my son out of an abusive situaition, and to defend myself against trumped up charges of wife beating, my view of the legal system is less than bad.
Anyway, again, I'm glad that you did a good job, your client is very lucky to know you, and that you're a honor to your profession.

BTW, have you ever seen the rules for hunting lawyers? If not, I'll send it to you, you'll like it, all sorts of rules about not being able to hunt lawyers near ambulances, hospitals, etc. Rules on bag limits etc. Oh yea, and the rule for hunting HONEST LAWYERS. Since they're an endangered species, you're not allowed to hunt them. So I guess you're safe!

Tom


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PostPosted: Sun Oct 06, 2002 4:11 am 
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<BLOCKQUOTE><font size="1" face="Verdana, Arial">quote:</font><HR>Originally posted by student:

...in five years from its expiration it may be expunged.<HR></BLOCKQUOTE>

THis is great stuff! Thanks Murray... Can't wait to read more.

However, (even though it should be in a new thread) it has been held by the SJC (Supreme Judicial Court of Massachusetts) that you have no Right to have an arrest or conviction expunged. AND that was in a case where the person was trying to get a false arrest on trumped up charges by corrupt police officers (all proven in court and resulting in dismissal of all "charges" with reprimands from the Judge for the prosecutor and officers involved) and the Massachusetts court has ruled that one has no Right to have even false arrest records OR records where one was found completely not guilty (the person actually got the Judge in the original case to enter a verdict of "innocent"... Wow!) to have those erroneous records expunged!

Perhaps, the attorneys here (especially the ones in MASS) can comment on that... (though in another thread... don't want to clutter up this one... it's really good...)

Take care and be good to yourself...



[This message has been edited by Panther (edited October 05, 2002).]


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PostPosted: Sun Oct 06, 2002 5:17 am 
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Thank you, Allen. I won't pretend this is not going to my head, nor that I don't like it!

Let's just say I am now defending adult clients who were not conceived when I passed the bar....

INVESTIGATION

I am a sole practitioner; my staff consists of me, me, and me. I do my own paperwork - thank God for word processors!

I probably will not reconstruct this phase entirely, nor in chronological order. Also, I have not consulted my client as to this analysis, so I have to consider carefully whether I am encroaching on privileged information or inforamtion that came out in the trial - Legal Ethics is not autmatically an oxymoron, my friends Image.

Most of my information concerning the fight came from my client. From what she told me I determined she had a valid self defense claim against the woman - and she was not charged as to the man. He didn't want to prosecute and the police officer was torn as whether to charge her with his injury.

At one point I went to the bar parking lot with my client to see the geography for myself.

My client was employed, owned her own house, and realized one gets what one pays for; she was willing to pay for an investigator. For me, this was a first.

I asked colleagues for investigator recommendations. Normally, I am guilty of just as soft-headed, liberal-leaning thinking as Allen thinks I am Image, but for the area of town where this took place, the investigator had to be white. A fact of life; the best investigator I knew was black, but he would not have gotten me nearly so much information.

All the participants and witnesses are white; the area, Portland, is a mostly-white, working-class enclave in the poorer area of town, surrounded by the black and inner city areas.

It's a tough area; a typical joke is that in Portland Poker a straight flush is 5 unrelated cards and a 9mm. Image

The investigator I hired, on two attorneys' recommendations, was a retired police officer who was also a Ph.D. in psychology.

He interviewed the bartender/owner, the man who got cut. one supposed eyewitness. Kentucky law allows a converstaion to be recorded surreptitiously if one party knows about it, and he carried a mini-cassette rcorder. He also had access to NCIC records.

(I remind you of my extensive staff resources; guess who spent hours of time transcribing the damned tapes...?)

There was a probable-cause hearing in the lower (district) court, wherein the police office was not there but they put on the female "victim," which allowed me to memorialize her story. Signifcantly, she
testified that my client had hassled her on earlier occasion and had refered to her a 'psycho bitch,' while "victim" was in the washroom, as my client was leaving the bar out the back with the man with whom she had been playing pool.

"Victim" came out the back door and they "got into it."

"Victim" couldn't say who struck first; it happened quick.

"Victim" said no one said anything in the fight; that the only ones out there were "victim,", client, the man, and "victim's" friend, Ms. X, whose name she couldn't completely remember.

(Remember my "extensive staff?" Guess who transcribed the probable cause hearing....)

My investigator did his investigations after - way after - the probable cause hearing, so he knew our side of the case as well as the victim's story.

I went thorugh the medical records of the "victim" with my wife, who has a JD and is also a RN. As earlier reported no wounds got past the fascia; there was no blood or clots in the peritoneal fluid. The exploratory surgery caused a huge scar, and I objected in pre-trial motions in limineto any pictures that incuded that scar as inflammatory.

(I lost the motion; saved my right to appeal the ruling by renewing the objections at the trial. I also refered to the photos to show the total absence of bruises on the face of the 'victim' to back up my client's version that client never even hit "victim." Image)

I also got copies of my own client's medical records from her physicians, showing a 10 year history of degenerative disc disease in her neck and continual treatment therefor, in order to show that her fears of serious physical injury or death at the bare hands of another woman were, in fact, reasonable fears under the circumstances. I delivered copies of the records to the prosecutor (who by this time was the second prosecutor on the case; the first had left town with her husband under the reciprocal discovery order, who agreed to stipulate their autherticity without my having to call in the custodian of medical records from the doctor's office. Good.

The first prosecutor was a neophyte and did not worry me. The second prosecutor was one of the most experienced trial attorneys in his office, and had handled numerous high-profile cases, many succesfully. I had never gone against him one-on-one before; I had second-chaired the defense in a death penalty case he was prosecuting and plead the sentencing phase. I got a lesser sentence than he asked by using ju tactics on him; I compared my client's culpability level with one of the co-defendant's who had already pled guilty. (In fact, all 3 co-defendant's had pled guilty; our client was the only one who insisted on trial.) This person's culpability was most like my own client's. He received the a straght (viv-a-vislife without parole) life sentence on the charge. I argued that that was what this prosecutor really thought this crime was worth and that my client should not be punished more for exercising his constitutionsl rights to trial. The jury agreed with me.

I had also discovered the facts that bolstered an insanity defense in a kidnapping case from our client's medical file (for the same attorney who tried this other case); we were hoping for a Guilty But Mentally Ill verdict and actually achieved a Not Guilty By Reason Of Insanity. Not shabby results.

In any event, this prosecutor was very comfortable in a court room and very intimidating to defendants and witnesses. I could expect one hell of a fight from him.

More later,

Murray/student





[This message has been edited by student (edited October 05, 2002).]


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PostPosted: Sun Oct 06, 2002 3:54 pm 
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Tom and Panther:

I do appreciate feedback, (especially since no one yet has called me an idiot!)

But I agree with Panther that some things should be brought up in separate threads. I'm sorry for Tom's bad experience with the profession; I'm not going to try to defend all lawyers. Nor am I going to attempt to explain the whims of the People's Republic of Massachusetts; I have quite enough problems understanding the views of the Commonwealth Of Kentucky, thank you very much!

BEFORE TRIAL

One of my maxims that I stress with all new clients is the "more flies with honey than vinegar" theorem.

"When you see me talking to the prosecutor, the witnesses, the officers, when you see me laughing with them -I'M NOT SELLING YOU OUT.

"I have to deal with these people 6 days a week, 52 weeks a year. I can't afford to be an ass for no reason.

"If I have to take off the gloves and start swinging, I can and will. But if you start off from that position, there's nowhere else to go. I'm doing this because that's how I am, and also because it's in your interest.

"Ninety-nine people out of one hundred understand this without my telling them, but I gave up believing I'd always know who that hundredth one was a long time ago and give this little speech to everyone."


Normally, I mean that one can get more through negotiation whuile you're not making disparaging comments about the ancestry of the other side, i.e., ("You sons of ....!")

In this particular case, I was very friendly with the arresting officer's partner. I was solicitous as to his kidney stone problems and would inquire as to his health. If he needed a continuance for medical reasons I wouldn't object (Or, if I did - I don't really remember - it would be for form to protect my record and please my client, but not vigorously pressed).

Mind you, none of this was insincere. This simply is how I am, and I'm still learning to be the best me I can be rather than a third rate mimic of other attorneys.

In this case, the officer's partner mentioned that the "victim" had taken her rings off in the bar before coming out after my client. He couldn't remember whence came that information.

I believed this fact, if proven, to be enormously important. It would show that "victim" was not searching out my client for a verbal confrontation. It would help show that "victim" was the aggressor. It might even prove that she was experienced.

The day of trial I casually asked the lead officer (who was the only officer testifying: the partner was never subpoenaed) if "victim" had taken off her rings and who was his source. He told me she had and his source was "victim." I established that from him at trial.

In trial I actually asked and got away with a 'Have you stopped beating your wife?' question of "victim":

"Ms. Victim, how many rings were you wearing that eveing?"

"Three."

"Ms. Victim, you took your rings off before getting in the fight with my client, didn't you?"

"Yeah."

"Do you take your rings off before every fight you get into?"

"Well, yeah." (!!!!)

(N.B., neither yes nor no is a good answer. Both assume other fights. The least damaging answer is "It's never happened before"...but that's not what she said.)

"How many times does this happen?"

Okay, that question raised an objection, which was sustained. Of course, the jury heard me ask the question and some of them could have wondered the same thing...and why the prosecution didn't want me to follow up on this...."
Image

If I'd been a SOB who talks to no one I'd never have known about the rings....

More later.

Murray/student



[This message has been edited by student (edited October 06, 2002).]


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PostPosted: Mon Oct 07, 2002 1:59 am 
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Murray/student,

No need to apologize for others. They are what they are. All I can say is that I'm glad that I'm done dealing with the Peoples Republic. Nothing like dealing with the nonsense her in Virgina. At least it's my "turf".

Each day it's a little less painful, and each day it's a little further away. While I haven't enjoyed it and wouldn't wish what I've been through on ANYONE, it has helped me to appreciate my health, my son, and those who have helped me. Also to realize that most things in life don't really matter in the big picture.

Keep doing good work.

Tom


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PostPosted: Mon Oct 07, 2002 3:28 am 
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Congratulations on a nice result!

What was the offer pre-trial?


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