I was fortunate to be selected for the witness theme Moth Story Slam event, hosted by WDET-Detroit on March 3, 2016. I adapted a story I had blogged about earlier, but focused this time on the actual trial. Here is the written version.
It was surreal, Kafkaesque. In my best suit, with my briefcase and exhibits under my arm, I climbed the steps to the menacing, courthouse tower before me.
Behind me, in the streets of Gotham, Batman and Superman were doing battle. Now in the elevator, I ascended to my faceoff with Luke Skywalker, Attorney at Law.
It was Detroit in 2014, and I found myself caught between a Hollywood film crew and an assistant prosecutor with an absurd name. Yes, we really do have an Attorney Skywalker in Detroit. He legally changed his name in the 1980’s.
My client was facing 15 years in prison for armed robbery.
Two phrases were repeating in my head: “Black man with a gun” and “Is it hard to represent guilty people?”
You may be innocent until proven guilty. But there is a specter over every criminal case from the start. In ours, the judge knew we had rejected a plea deal. We were reminded if we lost the trial and wasted the court’s time, the most severe penalties would be imposed at sentencing. My client’s wife, his mother and sister nervously watched me make opening statements in the courtroom, while his 5 children attended school.
Months earlier, my client, a black man, went to a gas station in a white suburb to purchase a $2.00 can of beer. There were two workers, multiple surveillance cameras and several customers. Not ideal circumstances for a $2.00 heist.
The video (there was no audio) shows the cashier shaking the first beer and arguing with my client. A second beer, more arguing, and then a bag handed to my client. He walks outside to his van.
But in the confusion, he hadn’t paid. And the workers hadn’t realized it. When the cashier did, he ran out of the store. A fight ensues. On camera, off camera. A car enters the lot. You see a large, black man fighting with a smaller, Middle Eastern guy in a gas station uniform. What is it that you think you have seen?
The little guy runs back inside. The larger man drives off. Inside the store, the police are called and that code is spoken. It was a “black man with a gun.”
As the trial begins, the first witness tells the courtroom about being threatened with a gun that can’t be seen in the video. Another about the harsh beating he saw in the parking lot. But one person from the prosecution’s witness list is missing at trial.
We found the missing witness, the second worker that inexplicably no longer worked for the gas station and who did not respond to the prosecutor’s subpoena sent to his last known address.
We found him with a bench warrant I got the judge to issue for his arrest. I wanted my client to have a fair trial. But had I just alienated the last identified witness by sending him to the worst jail in the state for a weekend?
If this were a Hollywood film like the one being made outside the courthouse, as a movie lawyer you would get an in-depth interview of each witness in the comfort of your luxurious law office. In reality, I was escorted by the bailiff through the cinder block hallways to a tiny holding cell. With the prosecutor beside me, I was given one minute to interview this witness, who stood on the other side of a metal door with a window the size of an iPhone.
A worse deal than the first is offered if I will instruct my client to plead guilty now and conclude the trial. We reject it. The prosecution’s last witness takes the stand, and I have no certainty of what he is going to say.
“I didn’t see anything.” My heart leaps. The prosecutor looks like he’s going to throw up. “Isn’t that you in this video, by the window, looking out at the fight in the parking lot?”
“Oh yes. I remember now.” The prosecutor turns to me with a smug grin. “That black guy was cool. My coworker started the fight. There wasn’t any gun. He made that up.”
Four witnesses, three video cameras, two weeks without sleep, and one verdict. My client was a free man.
Is it hard to represent a guilty criminal defendant? No, that’s easy. It’s hard to represent an innocent one.