When I started doing podcasts, one of my kids posted on his Facebook page, “I can’t believe my Dad has got a podcast before I do!” And then he went on to say, “It’s really just a commercial and he’s just bragging about how much he wins.”
Well, today, let me tell you about a case or two that I lost. Temporarily.
Let me start with this fine young man named Timothy Moore. I represented Timothy Moore in a case that involved five other defendants.
Timothy was the driver of car number one, with passengers that included his two brothers and a cousin. Car number two was driven by a young lady with another young lady passenger. In the trunk of car number two was a whole lot of cocaine.
The cars got stopped. The cocaine was found by the police. The two young ladies pointed their fingers at the four young men. And all six of them went to jail.
When the case rolled around to trial, lawyers for the two women had managed to make deals with the government, with the prosecutor, to flip the two girls against the four guys.
So the case goes to trial.
All six of these folks had been charged with trafficking in cocaine in an amount that called for a mandatory minimum sentence, upon conviction, of not less than fifteen years in prison.
The prosecutor had the young ladies testify that they were not going to get fifteen years in prison, but they were going to get three years, a lesser included mandatory minimum sentence. And the young women testified, in response to the prosecutor and in response to me and the other defense lawyers, no other deals, no other agreements, they were getting three years in prison, and that’s what they were going to serve, and that’s that.
The case went to the jury on a Friday evening. The jury returned its verdict after eight o’clock on Friday night. And I know for a fact at least one of the two defense attorneys representing the two ladies was out of town for the whole trial. He didn’t want to be in the courtroom while his client flipped. He didn’t want to detract from her testimony. And he was out of town.
I learned over the weekend that the two women were going to be sentenced Monday morning, so I went to court and watched. What a shock! Neither one of them got three years in prison. One of them got time served and probation, and one had to do a little bit more jail time before she got out, but neither one got three years in prison.
Despite what the prosecutor had them testify to just the week before.
I filed a motion for a new trial on behalf of my client (all four men had been found guilty by the jury). I asked the judge to set aside and give my client a new trial because the prosecutor put on perjured, lying testimony.
None of us expected the trial judge to grant that motion, although he should have. We were all very cynical at that time. And none of the three other defense attorneys joined my motion for new trial.
The judge did, in fact, deny it. And all four defendants took their cases up on appeal while they went off to prison.
The Fourth District Court of Appeals agreed with me that the prosecutor had wrongly put on, presented, false testimony.
These two witnesses, who even the trial judge recognized, were the key witnesses for the prosecution. Without them, there would have been zero evidence linking the drugs to the car the four gentlemen were driving, or linking it to any of them.
The Court of Appeals reversed my client’s convictions. So, Timothy Moore got a new trial. But because the other three defense lawyers chose not to join in my motion for new trial, chose not to file their own motion for new trial, they all lost their appeals and they all had to serve their fifteen year sentences.
Judges don’t always get it right. That’s what the Court of Appeals is for. One of the first rules about appeals in criminal cases is that you can’t ask the Court of Appeals to get it right if you didn’t give the trial judge a chance to get it right in the first place. So, because we had filed a motion for new trial, pointing out to the judge what was the right thing to do, give him an opportunity to get it right and he failed, that’s why we won that case on appeal.
Sometimes a prosecutor will make a mistake and a judge will endorse the mistake, and you get a little humor out of the Court of Appeals.
A long time ago, I resented a man named Martin Gibson. Martin Gibson, along with two co-defendants, was charged with robbing a couple of Haitian men.
The prosecutor chose to excuse or disqualify a black man from the jury. I objected, pointed out that Mr. Gibson, as well as his co-defendants, were black men, and that it appeared on its face to be a discriminatory challenge.
The judge ordered the prosecutor to tell him a race-neutral reason why he had excused this particular juror. And the prosecutor came up with one.
But I said, “Judge, that’s not enough. There is no evidence in the record to substantiate the prosecutor’s reason. He never questioned this juror about his reason. He never got any answers about his reason. And you can’t give it any credibility as a result of that, unless the prosecutor can show you in the record evidence that supports his claimed race-neutral reason for disqualifying this juror.”
The prosecutor then said, “Judge, I don’t have to do that. The law does not require it.”
The judge agreed with the prosecutor, kicked that person off the jury. The all-white jury we were left with ended up convicting the three men.
We took that up on appeal, too.
Not only did the Court of Appeals overturn the judge, but they took the pains to quote the prosecutor. The opinion out of the Fourth District quotes the prosecutor as saying, “I don’t have to do that. The law does not require it.”
The Court’s opinion said, “Yes, the law does require it. Reversed.”
So, to answer my son, yeah, I don’t win every case that I try, but I always keep in mind that the Court of Appeals is there, just to help in case a mistake by the prosecutor endorsed by the judge is part of the reason we don’t win.