Saturday, December 5, 2009

Trial Wardrobe Malfunction

I had a jury trial on Thursday December 3, 2009 at 26th & California. My client was charged with possession with intent to deliver over 5,000 grams (11 lbs) of marijuana. This is a class X felony punishable by imprisonment from 6 to 30 years. It is also not eligible for probation.

The jury was picked on the previous afternoon. Opening statements started at 10:45 am. The State called 4 police officers as its witnesses. The direct testimony was fairly brief and so was cross. This was a pretty straightforward case with not many facts in dispute. I needed the police to stick to their reports and they did. This case was not going to be won on cross; it was all argument.

The State rested. It was 12:30 pm. The jury was sent to lunch. I moved for a directed verdict. The judge denied my motion. We did jury instructions. And at 1:15 pm we were cut loose until 2:00 pm when I would open the defense's case.

In the bathroom during lunch my trouser's zipper broke. This wasn't going to be too much of a problem during my directs as I would be standing behind a lectern right next to the jury box. I told the judge about my problem. He said I could sit at counsel table and argue. I quickly said "no, thank you."

I cannot imagine doing closing arguments while sitting down 20 feet from the jury box. I could not be effective. My persuasiveness would vanish entirely. I speak with my hands and I don't stand still. If I move I can see if the eyes of the jurors are following me and quickly engage any that may not be.

Fortunately my slacks fit me properly and the fly pretty much laid flat. And my suit coat gently covered the very top of the fly near the button. When I sat down, however, it all opened up. My client got a chuckle out of it.

Direct examinations went fine and I didn't think about it. Before standing up to close I remember thinking "please don't open when I am standing in front of the jury!!" I would have looked like such a schlemiel if my fly was opened. 

I stood up, walked towards the jury, and began. I am not sure if anyone noticed and I did put it out of my mind...mostly. I had planned to limit my movement but that went out the window. I have to move around. I think I even put my hands in my pockets a couple of times without thinking.

So there I was doing closing arguments with my crotch catching a cool drift. The jury found my client 'not guilty'. But I wonder had he been convicted if having an open fly in front of the jury is proper grounds for an ineffective assistance of counsel claim?


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