Winning Cases That Others Say Can’t Be Won (with Attorney Cliff Barnes)
I hear from lots of people, sometimes even lawyers, that criminal cases can’t be won. I’ve found that, most of the time, that’s not true.
To further explore this, I talked to my good friend and fellow criminal defense attorney Cliff Barnes. Cliff’s been a lawyer in Florida since 1981. He’s tried everything from littering through capital homicide cases, and he spent some time as one of our county judges.
MK: Cliff, you hear people say cases can’t be won. How many times have you heard that?
CB: Lots of times. And I’ve said it myself and been wrong.
MK: Can you give us an example of one of your cases that people said couldn’t be won, until you did.
CB: I will be happy to tell you. This is a case that I had for probably eleven months, maybe thirteen, fourteen months. And I said it couldn’t be won, until the night before trial, literally the night before trial, because I had no defense, no legal defense.
CB: I think as lawyers, we get caught up in the law, what the law requires. Each crime has elements…one, two, three, maybe four elements. So, when a case comes in, we want to take the facts that we assume to be true or are sure that are true, and we want to compare them to the law. Do these facts meet the criteria that the legislature set out for a conviction under this statute.
CB: So many times, as lawyers, we look at it and we go, “Whoo! Guilty as sin.” All the elements are met. There’s plenty of evidence on each element. What the hell am I gonna do?
CB: My favorite case, I had that feeling the entire time. I don’t think I took depositions. I didn’t do much investigation. There really wasn’t anything to be done. So, you might ask, “What kind of case was that that you had no defense and no reason to investigate?” No pre-trial motions, just absolutely nothing. I was a mouse until the morning of trial. It was a case that all the State has to do is prove the event happened, which is a strict liability crime.
CB: My case was a young man who had taken over his father’s longtime auto dealership. It was during one of our recessions. And he failed to make his State tax payments when he sold each car. Under the law, it’s strict liability.
MK: Under Florida Law, tax money becomes the property of the State as soon as the merchant collects it. The merchant is simply a trustee.
CB: Exactly. Now, they take it at the sale, because it’s all wired here and wired there. But back then, you had to, after each week or month (I think it was after each month), you had to fill out a paper form and send a check showing each sale and how much was collected. You collected it and kept it in your bank until you remitted it to the State of Florida.
CB: So, this young man would sell cars, and instead of making tax payments with the tax money, he would keep his business afloat. He would keep his employees working, paychecks coming in. He would make interest payments at the auto deal. All auto dealers require, when they send cars out to an independent dealer, that they have to make interest payments if they don’t sell them. Back then, he was selling gas-guzzlers during one of the recessions caused by high gas prices.
MK: So, in the eyes of the Law, this young man was treating the tax money that he’d collected as if it was his general revenue, and he was paying his company’s bills with it.
CB: And when he could, he would gather money together and send another tax payment. But he missed, I believe, sixteen months of tax payments, and that amounted to a lot of money. So, the Florida Department of Revenue filed felony charges, Our prosecutor here was prosecuting them and I literally had no defense. They had all the proof that he sold the car, all the proof that he collected the money from the buyer, all the proof that it had gone into his bank account. And the State didn’t have any tax receipts for those months. Sixteen felony counts of five-year felonies.
MK: So, this young man was in danger of going to prison for quite a while if you didn’t find a way to win.
CB: Exactly. And I had no way to win. No legal way to win. The night before trial, I had a few too many drinks, more out of being depressed that I had a trial the next day where I had no defense. So I started thinking about it differently.
CB: Instead of thinking about it like a lawyer, I started thinking about it totally differently. Trying to think, if I were on the jury, what would it take for me to find this young man not guilty of sixteen felony counts.
CB: All of a sudden, it dawned on me that he had a life story to tell. I had to humanize him. As every good criminal defense lawyer knows, juries don’t always do what’s legal, they do what they think is fair and as close to the Law as they’re willing to make it.
MK: And they try to do what’s right.
CB: I had to make it so they didn’t want to follow the Law. I had to make it so that they valued this young man, his past and his future, more than they valued sixteen missed tax payments.
MK: It’s hard to do that.
CB: That night, I thought, “What can I do to humanize him?” I didn’t even particularly like him as an individual, but he was a handsome young man. He was photogenic. He was gentle. He was quiet. His father had been this boisterous, over-the-top, pound-on-the-car-hood car salesman that everybody on the jury would have heard of. He was exactly the opposite.
CB: I thought about how his father had dumped this in his lap. At the same time, the father had dumped the care for his own mother, my client’s grandmother, in his lap. So, she’s dying of cancer, and my client is taking care of the auto dealership, because his dad fled to the mountains because the place was going under. And he fled to the mountains because he didn’t want to take care of his cancer-stricken mother any more. His own mother.
CB: My client had been trying to juggle both of these responsibilities. He had kept the people employed at his dealership and had taken care of his grandmother. I had proof of all of that, not that it was relevant in the least, but it went towards humanizing him.
CB: Also, I believe, he had actually made some payments after some of the missed payments. It was obvious he wasn’t stealing from the State. He just wasn’t giving them the money when they desired it, when they wanted it.
CB: So, morning of trial, all of a sudden, I’m feeling great. I just unleash on the jury and voir dire against the government, the evil government.
CB: In St. Lucie County, we have this big voir dire room, where you have maybe thirty-forty, I don’t know, fifty-sixty jurors sittin’ out there.
MK: Before Covid.
CB: Yeah, before Covid, butt-to-butt, cheek-to-cheek, elbow-to-elbow. I started asking jurors, after the State, of course, goes first. They ask, “Can you follow the Law?” He doesn’t need anything else. He had his case won before he started.
CB: I started talking about how hard it is to run a small business. I asked for a show of hands of people who had small businesses. I would go through each of their stories with them. Some of them were quite emotional about all the government regulations, the government taxes they had to pay – local, state, federal, unemployment taxes, employment taxes, tax penalties, you-name-it. I had five or six people give firsthand accounts of the horrors of running a small business. All the red tape, all the hours you spend just satisfying the government with forms.
CB: I let them know very clearly that this young man was on trial for trying to keep a business afloat, trying to pay taxes (as had been paid for 25-30 years without skipping a beat, by his dad and then by him), and reminded them that he would be paying taxes in the future. After all this was over, he was not trying to steal, he was just trying to gain time to keep his employees employed, to sell some of those cars and make it right with the State of Florida.
CB: The prosecutor didn’t object to anything. He was so sure he had his case won. He just let me go on and on. I really unloaded on the jury in my opening statement, where I did nothing but humanize the client, talked about the dying grandmother, and I had a woman on the jury panel start to sniffle. She started crying during my opening statement. First time and last time that ever happened, but I felt like I was making some progress.
CB: As it turned out, I showed that the revenue agent (no one likes revenue agents, and you have to call them that every time) had been promoted. She’d been in the government agency so long, she’d started out as a secretary, just a typist, and had worked her way up through nothing but seniority, into a tax collector position. And she kept a worse file than I did. On the jury stand, she found one of the tax payments that he was charged with [not paying].
CB: Her file, when she opened it up, I asked to show it to the jury and the judge let me. I walked along the bench showing the jury this, it looked like my criminal case files, just jammed with papers from years and years. Nothing’s organized; it’s all jammed in there.
CB: Lo and behold, if I didn’t pull out, as I’m walking along the jury, one of his tax payments that she had overlooked! There was a receipt right there.
CB: If that didn’t win the case, I think it was more humanizing and showing how the government is cold, callus, could care less about all of us as individuals. All they cared about was the technicality of sending this kid to prison because he was trying to pay his tax payments but he couldn’t.
CB: So, after all the evidence, we get our closing statements, and I reminded the jury that one of the charges, the judge had dismissed because it had been resolved in open court. I then walked them through his personal conditions that I’ve already illustrated. I walked them through how many months and how many years of tax payments this business, under his father and himself, had paid the State of Florida. I reminded them that they were Florida taxpayers and that if they found him guilty, he would never make another tax payment to the State of Florida. He would be a ward of the State.
CB: In my final closing, back then we got two closings, I took a penny and I walked along the jury box and I put the penny down on the hardwood there right below the jury. I said, “Look at this penny. Not one of these did my client intend to deprive the State of. Not one penny. He meant to catch up and pay every dollar he owed as they had been doing for thirty years, and as he intended to do for the next thirty years.” Then I sat down.
CB: I thought that was an important way to drive home that the State was actually trying to put someone out of business who was and will be a valuable taxpayer, because they had fallen on hard times in a recession.
CB: It doesn’t have to be these facts, but if you like your client, love your client or can find redeeming things about your client and bring them out to a jury, juries often will reward you and reward your client by them being way more receptive to your legal argument.
CB: So I got to hear sixteen times, “We the jury find the defendant,” and then they had to read out the account in great details, “not guilty.”
CB: It took a long time to read sixteen counts in full and then, “We the jury find the defendant…not guilty.”
CB: So, there was a case that I won that was totally unwinnable by any lawyer anywhere in the world, but when I stopped thinking about being a lawyer and just focused on what’s right, what’s just, what’s the American way, fairness…boom, that’s what the jury focused on.
MK: That’s the kind of thing that years of experience teach us, that it doesn’t matter how a case looks on paper. Cases don’t play out in the courtroom the way they look on paper. And a criminal trial is not a law school exam.
CB: That’s why we’re so lucky to have juries in this country. They did what was right.
MK: We are. And it’s not like you pulled a fast one on anybody. The reason the prosecutor didn’t object to you was that everything you were telling the jury was true.
CB: Absolutely true.
Cliff is a valuable member of the Kessler Law Firm, and you can find out more about him on our website.
Here at the Kessler Law Firm, we don’t think any case “can’t’ be won”. It’s just a matter of our figuring out a way to do it.
If somebody’s told you that your case can’t be won and you want another opinion, come see us. You can call us at 772-466-4900. I look forward to talking with you.