Bum Rap

by Paul Levine

  In capital cases, we still get a dozen jurors, just like a carton of eggs. Because the state was seeking a maximum of life imprisonment in Solomon’s case, we were seating the usual six-pack.

  In theory, jurors are supposed to go through a four-step process. They assimilate the facts gleaned from the evidence, weigh those facts, learn the law from the judge, then apply the law to the facts. In reality, they determine if the defendant looks guilty and guess which witness is telling the truth. Okay, I’m overstating my cynicism. My point is that jurors can’t help themselves. They’re swayed by their life experiences as much as the evidence and the law. Still, with all my bellyaching, here’s the strange thing.

  Juries usually get it right!

  Honestly, I don’t know how. Maybe film director Billy Wilder said it best. He was talking about movie audiences, not juries, but the point holds true: “Individually, they’re idiots. Collectively, they’re a genius.”

  At the defense table, my client and cocounsel, despite hating my trial strategy, were nonetheless working peacefully with me on voir dire. Solomon scribbled notes on a legal pad while Victoria used her color-coded three-by-five note cards.

  Having lost weight, Solomon’s neck didn’t fill out the collar of his white dress shirt, and he had that jailhouse pallor. As the venire filed into the box to be questioned, he locked a maniacal grin into place. Frankly, the Joker in Batman had a more natural smile.

  “Relax,” I told him. “You look like an axe murderer.”

  “The panel looks stupid,” he said.

  “Shhh,” Victoria said.

  “I mean, how smart can they be?” Solomon continued. “They couldn’t even get out of jury service.”

  State Attorney Ray Pincher stood, smiled at the prospective jurors, and told them, “All I want, and all Mr. Lassiter wants, is a jury that’s fair and impartial.”

  Speak for yourself, Sugar Ray.

  I want a jury that will rule in my favor, even if a dozen eyewitnesses saw my client shoot a nun on Ocean Drive at high noon. Failing that, I’d take jurors who truly believed in the presumption of innocence and would hold the state to its burden of proving guilt beyond every reasonable doubt.

  Whereas Pincher wanted jurors who believed the old canard “Where there’s smoke, there’s fire.” Meaning, if Steve Solomon was sitting in the dock, by golly, he must have done something shitty . . . be it murder or manslaughter.

  Voir dire is a two-lawyer job. One asks the questions; the other listens to the answers and observes. I did the talking and Victoria the observing. She watched, not just the person answering but the others in the box, too. Assessing body language is an essential tool of the practice.

  In a day and a half, we had our six jurors and two alternates. Three men and three women on the active panel, all presumably citizens, good and true. It was a fairly typical Miami jury, which is to say, it had a lot of hyphens. Two Cuban-Americans, one Colombian-American, one Haitian-American, one African-American, and one plain old Caucasian.

  Judge Melvia Duckworth gave her preliminary instructions. In addition to the age-old admonitions against discussing the case with family and friends, there were a few new ones. No texting, tweeting, blogging, or Facebooking about the case. No Instagrams, Pinterests, or Googling to look up information.

  I’d tried cases before Judge Duckworth and I liked her. She was an African American woman of about fifty-five who had been a captain in the Army Judge Advocate General Corps. Most of our trial judges these days seem to come out of the state attorney’s office, and many are prosecution oriented. In the military, JAG lawyers switch sides. One day a prosecutor, the next day a defense lawyer. Maybe they should make civilian prosecutors do the same thing. Many are plagued with a disease I call emotional scurvy. Instead of lacking vitamin C, they’ve been shortchanged of empathy.

  In the past, on motion calendars when the judge was being particularly stern with me, I would call her “Captain Duckworth,” instead of “Your Honor.” She generally smiled and responded by calling me “Buck Private Lassiter.” I always appreciated a judge with a sense of humor. Plus she always gave the defense bar a fair shake, and not all judges do.

  Now, with the jurors having taken their oaths and ready to do justice, or a reasonable facsimile thereof, the judge said, “We’ll stand down for fifteen minutes, folks. That’s a recess. Then the state will present its opening statement.”

  -52-

  A Simple Case of Murder

  While the jurors were peeing, Sugar Ray Pincher sashayed over to the defense table, ostensibly to talk.

  He would never do this with the jury in the courtroom. Fraternizing between opponents might give the jurors the idea that this was just a game played by friends.

  I actually enjoy the camaraderie with the other side. I think of LeBron James and Kevin Durant, chatting it up before the game, then elbowing each other in the gizzard once the buzzer sounds.

  Pincher slid his butt onto the table as I printed on a legal pad: ACCIDENT! FIREARMS STUDY: GLOCK PROPENSITY FOR UNINTENTIONAL DISCHARGE.

  Pincher, of course, was using his sneaky ability to read upside down. He hadn’t really come over to ask if my backyard mango tree was heavy with fruit. He wanted to see what folders I’d pulled out of my briefcase for opening statement.

  “So how’s Kip doing in school?” he asked, as if he really cared.

  “Playing a little football.” I kept writing. DOUBLE TRIGGER INSUFFICIENT TO PREVENT HUMAN ERROR. ACCIDENTAL DISCHARGE NOT A CRIME.

  “Hope he’s got more speed than his uncle.” Pincher loved to needle me.

  “I just hope he’s smarter.”

  With that, Pincher gave me a playful punch on the shoulder and whispered, “I knew you were full of hot air the other day.”

  “Huh?”

  “Claiming Nadia was the shooter. That’s a dead end, no pun intended. Accident’s your only defense, and you know it.”

  He showed me his pearly politician’s smile and headed back to the prosecution table.

  Yeah, I knew he’d be coming over to take a peek, so I gave him a little misdirection. Sort of like that trick play in football, the fumblerooski.

  “Mr. Pincher, is the state ready to proceed?” Judge Duckworth asked.

  “We are, Your Honor.”

  “Mr. Lassiter?”

  “Locked and loaded, Your Honor.”

  The judge turned to the jury. “The attorneys will now present their opening statements. What they say is not evidence and is not to be considered by you as evidence. Rather, the attorneys will tell you what evidence they believe will be presented during the trial.” Shooting a glance at the prosecution table, she said, “Mr. Pincher, please proceed.”

  Sugar Ray Pincher strutted toward the jury box. He was a toe walker, probably from his boxing days, so each step had a little bounce. Not wanting to invade the jurors’ personal space, he stopped about three feet away from the rail.

  “Good afternoon, folks.” He spent a couple minutes thanking the jurors for leaving their exciting lives to drive through frightful traffic all the way to the Justice Building in order to do their civic duty. Then he got down to business.

  “This is a simple case of murder. A cruel and vicious crime, cutting down an unarmed man, and, under the law, a very special kind of murder.”

  A nice tease. Who’s not dying to hear what makes it so damn special?

  “It’s not my place to explain the law, but rather to introduce the evidence, to present you with the facts. At the conclusion of the trial, Judge Duckworth will instruct you how to apply those facts to the law. She will define this very special charge of felony murder, which is a homicide committed during the commission of a felony.

  “In this case, the evidence will show that the defendant, Mr. Solomon, participated in the robbery of the victim, Nicolai Gorev. And in the course of that robbery, Mr. Solomon shot and killed Mr. Gorev. It doesn’t matter if the defendant intended to shoot the victim. It doesn’t matter if he acc
identally fired the gun. Once he was in on the robbery, he is guilty of felony murder, no matter the circumstances of the shooting.”

  Solomon was poking me in the ribs. Sure, I could have objected. After having promised the jury that he was going to discuss the evidence and not the law, Pincher was doing the opposite. Strictly speaking, it was an improper opening statement. But I only object when the opposition draws blood. Technical objections don’t interest me, and they piss off the jurors.

  They wonder: just what’s the defense lawyer afraid of?

  Besides, I wanted to know if Pincher dared go one step further.

  “Here’s another thing about felony murder,” Pincher said. “While the evidence will clearly show that the defendant pulled the trigger, he would still be guilty of felony murder even if his coconspirator did the shooting.”

  There it was. An absolutely true statement of the law. But Pincher had to be wary of that outcome. If he had immunized the shooter in order to convict the less culpable defendant, he ran the risk of jury nullification: jurors so incensed at the prosecution that they wouldn’t follow the law. As a former linebacker, I intended to blitz right through that opening in the offensive line.

  “There are only two persons alive who can tell you what happened in Nicolai Gorev’s office that July day. One is the defendant,” Pincher said, pointing an accusing finger at Solomon, “and the other is a woman named Nadia Delova, the defendant’s coconspirator. Now, the defense will make much ado about the fact that Ms. Delova received immunity from the state in return for her testimony. But that is the way the system works. Not every state’s witness is Mother Teresa. All we care about is that our witnesses tell the truth. And you will be able to judge for yourself when Ms. Delova testifies whether the defendant was part of her planned robbery that turned into a homicide. You will judge Ms. Delova’s credibility as she swears under oath that Mr. Solomon pulled the trigger and killed the victim. And you will judge the credibility of Mr. Solomon, for we will play an audiotape of a statement he voluntarily gave at the crime scene, and I suggest you will find his account highly imaginative, farcically fanciful, and ludicrously lacking in all credibility.”

  “Objection!” I called out, getting to my feet.

  “I was wondering how long you’d keep your powder dry, Mr. Lassiter,” Judge Duckworth said. “Please state the grounds of your objection.”

  “Too many adjectives. Or maybe they’re adverbs. I always get them mixed up.”

  “I assume you’re saying that Mr. Pincher is engaged in closing argument, rather than opening statement,” the judge helped out.

  “Precisely,” I said.

  “Sustained. Now, Mr. Pincher, please confine your remarks to statements of what you believe the evidence will show. Save your editorializing for your press conferences.”

  Pincher bowed slightly toward the bench. “Thank you, Your Honor.”

  That’s the way it goes. The party who loses the objection thanks the judge for the spanking.

  Pincher stuck to the evidence for a while, hitting the highlights of his case:

  That Solomon knew Nadia Delova was armed and did not ask her to leave the gun behind.

  That during an argument with Nicolai Gorev, Solomon grabbed the weapon from Nadia and fired it, killing Gorev.

  That Solomon’s fingerprints were on the weapon and gunshot residue was on his right hand.

  Pincher told the jurors the judge would instruct them on the lesser included offense of manslaughter. That would come into play if they did not find that Solomon conspired in the robbery, the crime giving rise to felony murder. By his tone, Pincher sent the message that Solomon’s lack of participation in the robbery would be a highly unlikely finding.

  “You will likely hear from the defense that all this was just one big mistake. An accident. An unintentional discharge of a firearm. That Mr. Solomon is not experienced with handguns and that the Glock he fired has a very light trigger pull. That the defendant never intended to even shoot the gun, much less kill Nicolai Gorev.” Pincher cleared his throat, a guttural, dismissive harrumph.

  “But you will hear expert testimony from the state’s firearms specialist about the double trigger mechanism of the Glock, which replaces the traditional safety. You will hear from a second expert who tested the murder weapon and found it not to be defective. Yet a third expert will tell you that there is no such thing as an accidental discharge. The weapon will only fire if the trigger is pulled directly backward because of that double trigger safety. Now, here’s where it gets a tad complicated. Yes, sometimes people might fire the weapon when they might not have intended to, but still, they pulled the trigger. I’ll say it again. They pulled the trigger! And if you do that while pointing the gun at someone, even if you didn’t intend to shoot him, that’s manslaughter. You can’t build an idiot-proof gun unless you build a better idiot.”

  “Objection!” I sang out. “I believe the state just called my client an idiot.”

  “Mere rhetorical hyperbole,” Pincher said.

  “Try not to fall in love with your own rhetoric,” the judge said, tugging at the white filigreed rabat at her neck. “Tone it down, Mr. Pincher, and wind it up.”

  “It will be my pleasure,” Pincher said, as if he had just been invited to tea.

  I tuned out for the next several minutes, my mind drifting between what I intended to say when I stood up and wondering just when the leaves would be turning all those shades of gold and crimson in Vermont.

  -53-

  Tap-Dancing across a Tightrope

  At the defense table, Victoria and I flanked Solomon, protecting our precious cargo from the slings and arrows of the prosecution. With the jury’s eyes on me, I slid my chair back, buttoned my suit coat, and stood. I placed my big mitt on Solomon’s shoulder and gave it a squeeze, as if he were my dearest friend. If the jury liked me, maybe some of that gold dust would rub off on my client.

  Surely, this amiable big galoot of a lawyer would not represent a filthy murderer.

  I walked several paces and planted myself like an oak in front of the jury box. I spread my legs to shoulder width, perfectly balanced. I did not hide behind a lectern. I carried no pad or notes. I would keep eye contact with the jurors throughout our little chat.

  “I want to thank my colleague, the state attorney, for doing my work,” I began.

  They waited. Just what the heck was I talking about?

  “But once Mr. Pincher chose to tell you all about our defense, I wish he’d gotten it right. We will not present evidence that Steve Solomon fired that Glock accidentally. We will present evidence from which you may reasonably conclude that Steve did not fire the gun at all!”

  I was tap-dancing across the tightrope. I hadn’t denied that Solomon fired the gun. I told the jury that they “might reasonably conclude” he didn’t fire it. I hadn’t lied. After all, I’m an “officer of the court,” though in two decades of practice, I’ve never known what that meant. I also called my client “Steve” in an effort to humanize him. A first name is so much warmer than “defendant,” which is a synonym for “scumbag.”

  “But since the state told you about our case, let me tell you about theirs. First, as the judge will instruct you, the burden of proof rests on the state’s shoulders. That burden will be carried entirely by Nadia Delova, a Russian national who’s in the United States illegally and who is an admitted criminal. That’s right, the state’s key witness is a diamond smuggler, an illegal immigrant, and a Bar girl.”

  Out of the corner of my eye, I saw Gerald Hostetler wince. He was sitting in the front row of the gallery. Nadia wasn’t there, of course. As a witness, she was barred from the courtroom until her performance was needed.

  “Let me tell you a few facts that Ms. Delova will admit from the witness stand. First, that she entered this country carrying stolen diamonds on behalf of an international gang of smugglers. Next, that she’s been a Bar girl for several years in various countries. Her job, basically, is to lie to
men and get them to pay thousands of dollars for cheap champagne. She does this by convincing them that she will go back to their hotel rooms and engage in sex.”

  I paused a moment and took inventory. An African-American woman on the jury, a churchgoing, hat-wearing lady of about sixty-five, was frowning. I hoped her disapproval was of Nadia Delova, not the big meanie painting her as a woman of the night.

  “Let me make one thing clear,” I said. “Ms. Delova is not a prostitute. A prostitute engages in a business transaction and delivers what is promised in exchange for money. Ms. Delova takes money and does not deliver. Nadia Delova is, basically, a liar and a thief.”

  Another pause to let those tough words sink in, then I started up again. “What will she say, this star witness of the state? She will admit that she feared and hated Nicolai Gorev, the manager of the bar where she worked, an establishment that existed solely for the purpose of thievery. She will testify that Gorev cheated her out of wages and forced her to have sex with him as a condition of employment. In short, the evidence will show that Nadia Delova, not Steve, had the motive to kill Mr. Gorev.”

  I moved half a step closer to the jurors. Just enough to establish intimacy without spraying them with saliva.

  “Nadia Delova will admit that she is the one who brought the gun to the meeting, pulled it from her purse, and pointed it at Gorev. She is the one who robbed his safe, stole the diamonds, and fled to another state, leaving Steve Solomon behind to take the rap. A bum rap!”

  I was into the flow and feeling good about my spiel. But not so good about myself. I felt like a creep. Everything I said was true, but forcing Gerald Hostetler to listen filled me with self-loathing. Still, what could I do? I had a client to defend. “Zealously,” as the Florida Ethical Rules command.

  “Now, let me tell you a little more about Mr. Gorev.” Out of the corner of my eye, I saw Ray Pincher inch forward in his chair. His head was angled toward me and away from the jurors so they couldn’t see his murderous glare. Yeah, if looks could kill, he’d be the one in the dock.