The Zone

On Tuesday morning I conducted a motion hearing at 26th & California. My client is being charged with first degree murder after an alleged failed car-jacking attempt. I am not the kind of lawyer to put murderers back on the street in order to make a buck. My client, I am sure, is innocent.

I filed two pre-trial motions. My motion to quash arrest was based on no probable cause. And my motion to suppress identification was based on, what I alleged was, an unnecessarily suggestive show-up. A typical show-up involves usually just one person (who is usually in custody) being shown to either a witness or the victim of a crime. You should contrast this with a line-up as seen on TV where there are at least 5 different people for the witness to view.

I did not expect the judge to grant either motion. I doubt judges ever toss out murder cases by way of a pre-trial motion. I do believe, however, there was a basis for both motions. They were not frivolous. But I wanted the chance to get some police officers on the record testifying about the case. I don't know why I thought to do this. Perhaps I read it somewhere. A great trial attorney whom I respect characterized my strategy as "old school".

In civil cases, long before trial, numerous depositions are taken. Depositions are given under oath. There is usually a court reporter there recording everything being said. When the case finally proceeds to trial, both sides already know what the testimony is going to be. How? They have already heard it, in the deposition. 

In criminal cases, we do not have the luxury of depositions and several years worth of discovery. We get, at most, police reports, written witness statements, and very limited grand jury or preliminary hearing testimony. As a defense attorney it's easy to predict the state's theory of the case: the defendant did it. But we don't know how it will be played out at trial.

Going into yesterday's hearing, I viewed it as a lot like a discovery deposition. I wanted to know everything that wasn't in the arrest report. This meant I had to ditch all methods of cross-examination, i.e. asking only leading questions and doing all of the talking versus asking very general, open-ended questions and letting the witness talk all they want.

Example: when you arrived on scene what did you see? Who was there? What were they doing? Where did you go? What did you do? What time was it? And so forth.

There were a number of people in the very large courtroom. My client's mother and several of his family were seated. Some of the victim's family were there as well. There were also several very experienced attorneys hanging around. Add a few random people, both assistant state's attorneys, and the total number of attendees exceeded 25 or so.

For me, that's quite an audience for a motion hearing.

Naturally, I was a bit nervous as I tend to get. My palms were moist and my throat started to dry. I never want to look like an idiot in court. Not in front of the judge, other attorneys, the client's family, or the client himself.

I had three officers there to call to testify as I wished. And so I did. I knew what I wanted to get done and set out to do it. This was in one of the very large courtrooms on the upper floors at 26th & California. The jury box is enormous. The bench high. Counsel's tables are large. And the ceiling has to be at least 20-25 feet high. It's just a huge room; probably almost as big as a full basketball court.

The witness stand is on the side of the judge's bench closest to the jury box. There is no lectern, per se. But there is a piece of furniture that looks like a small wooden park bench and stands as high as the bottom of my ribs. This is from where witnesses are to be questioned.

I  called the first witness. The questioning bench was all the way at the other side of the jury box or about 20-25 feet away from the witness. It was also very close to the prosecutor's table. The bench is not really heavy, but a little awkward. I asked the judge if I could move it closer to the witness and she allowed me.

I asked to move closer for a few reasons. First, prosecutors like to chatter among themselves when I am questioning. It can be annoying and distracting if I hear it. Second, I wanted to be closer so I could really look into the eyes of the officers during testimony. I wanted to get a feel for them and attempt to gauge how confident they were about their testimony.

Getting closer to the witness also did something else. It shut out the rest of the courtroom from my awareness. It was me and the witness. I was in a zone. I was so completely locked in to what the witness was saying that I heard nothing else. It wasn't until I tendered the witness and walked to my table that I asked "where did all of these people come from?"

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