Florida Criminal Defense and DUI Defense Blog

1Mar, 21

Attorney Michael Kessler PodcastRecently, we’ve talked about cases that we’ve been told “could not be won”. Let me tell you a story about a case that I told the prosecutor she could not win. The case ended up going to trial and I was right. She could not win.

This was a repeat customer for me. This was a client who I had taken to trial and won about twenty years ago. He came to see me one day and said he had been charged with a domestic violence battery.

Here’s the story.

He was a married man. He had a fling. It didn’t last long. He went back to his wife. They worked things out. And about two years later, he encountered, in a grocery store, the woman with whom he’d had a fling, and her eighteen month old baby boy. And she told him he was the father.

My client did exactly what you would expect him to do. He immediately went home and told his wife.

Then he and his wife went to see this woman, who had five other children, and they offered to take custody of the eighteen month old because they could provide more for him than she was able to.

She said, “No.”. She said “no” in a particularly crass and vulgar way, and my client and his wife left.

Then he did exactly what you would expect him to do. He went and got a family lawyer and he filed a custody lawsuit. No threats. No violence.

One Saturday morning, he encountered this woman on the street. They had words. Well, she had words. And he left.

Not satisfied, she ran into the first house there and insisted that he had just punched her in the mouth. She called the police. The police came and they took pictures. The lady didn’t look like she had a mark on her.

There was no witness to back up her claim. The police went and interviewed my client, and he insisted he hadn’t even seen her. And the State went forward with the case.

One of the reasons the prosecutor gave me for going forward with the case was “well, your client’s got a bad record”.

I said, “Yeah, but if he doesn’t testify, the jury doesn’t get to hear about his record. His record’s not going to help you win.”

“Oh, well, you’ll have to put him on the stand,” she said.

I said, “Alright, we’ll see.”

By the way, the accuser was a convicted felon, several times over. The jury was going to hear that because she had to take the stand.

I told the prosecutor, “I’m not saying my client’s a good guy. I’m not even going to tell you he didn’t do this. He says he didn’t do this. I’m just telling you your case has no jury appeal. You have a bad witness. This is a case you’re not going to win.”

She didn’t believe me and we went to trial. As a matter of fact, we went to trial twice.

The first time proved to be the fastest trial I ever had. We picked the jury on one day and we showed up for the trial. Court started at nine-thirty and before ten o’clock I was out of the courthouse.

At nine-thirty, the judge came in, brought the jury in, told the prosecutor to start with her opening statement. She gave what I thought was a plain, vanilla opening statement. I gave a very brief opening statement. I told the jury, “Here sits a man, an innocent man, who’s been wrongly accused. Now, let’s get to work.” That was my entire opening.

The judge told the prosecutor to call her first witness. She puts the accuser on the stand and she goes through her unconvincing story.

I stood up, walked over and stood in front of the jury to face the witness. I said, “Let’s start, ma’am, by talking about the things that you and I agree about.”

She said, “Okay.”

I said, “Ma’am, you and I can agree that you are a convicted felon.”

It’s fair game when any witness testifies, for you to ask that witness if they have any felony convictions, because the jury’s allowed to know that. In fact, they’re instructed to take that into account in deciding whether they believe the witness. This applies only to witnesses that take the stand. You can’t introduce evidence of somebody being a convicted felon if they haven’t testified. That doesn’t have anything to do with whether they committed this crime. It only has to do with whether they’re a credible witness.

So I said to this woman, “You and I can agree that you are a convicted felon.”

At this point, she points directly at my client and she said, “So is he!”

The judge did a facepalm, sent out the jury and declared a mistrial. So I was out of the building before ten o’clock.

Despite this proof of what a bad witness she had, we teed up the case a month or two later and went to trial again.

I introduced the evidence that I’ve told you about. And I did it all through cross-examination of their witness.

“Nobody is coming to court to back up your story. Nobody else claims to have seen what you say happened. These photographs of you, taken that day, don’t appear to show any kind of injury. They don’t appear to show a woman that got punched in the mouth. You don’t have any pictures taken by police or anybody else, taken later that day, or the next day or the next day, showing any bruising or swelling or cut or anything. And you’re still a convicted felon.”

The jury took that case, found no corroboration, found her not believable, at least certainly not beyond a reasonable doubt, and they brought back a verdict of not guilty.

I never say never, but that prosecutor hasn’t taken another one of my cases to trial since then.

And that’s a story about another case that somebody said couldn’t be won.

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.

Attorney Mike Kessler
Written by: Attorney Mike Kessler

Attorney Kessler has been practicing criminal law in Florida for 30 years. He is recognized as is a leading authority on drunk-driving defense as well as a founding member of the Saint Lucie County Association of Criminal Defense Lawyers and co-author of The DUI Book: Florida Edition, the definitive resource on DUI in Florida.

To speak with Mike, call 772-466-4900 or click here for a free consultation.

Developed and Optimized by ClikTru
Call Now Button