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Thursday, September 29, 2005

Just another day of problem solving

First Problem:
The bailiff’s name is Estevez, says everything as if it’s a joke set-up. “Mort, the judge wants to see you guys in chambers.” “About instructions?” “No, something else.” “What’s up?” “A juror overheard something in the hall.”

Groans all around. BC mumbles, “We were doing too well, something had to happen.”

I’ve got a bond with the judge. He was a DA I opposed in a murder case years ago. I won, now he’s not happy again. We’re almost done with this misdemeanor trial and this comes up. Some cases just have a cloud over them.

He brings the juror in. She is #1, the plus size gal in the back row. My post-it reads: “Ms. S---, Encino, works at home, husband a ‘director,’ two children, no prior jury service.”

She was in the hall after the noon hour. My client was standing nearby with a man. She heard him say, ‘So I just say I don’t know her.’ “I didn’t think too much about it but then I saw him testify and when he was asked if he knew the other defendant, he said ‘I don’t know her.’ And so ...”

So she inferred that he’d been told to lie about it. She insists she didn’t tell any of the other jurors. The judge smiles weakly and asks her to wait outside.

The witness was my client’s husband. I had put him on to corroborate a small part of her defense. He’d been nervous but okay for a defense witness. The few relevant points had been made. The jury might disbelieve him because he loves the defendant, but then again they might not.

Whether he knew the other girl charged was not really that material. Just a minor point. Why’d they have to lie about it? Borenstein’s Law is the only answer. No matter how well you do, the client will find a way to screw it up.

The judge looks to the prosecutor. He’s a City Attorney, looks about my son’s age. He wants to win. He wasn’t, now he’s perky. “Well, I think this juror is now a witness. Replace her with the alternate and I’ll call her in rebuttal.”

The judge’s look is priceless. I’m in stitches. I can see the juror taking the stand before her former fellow jurors. A new “I-thought-I’ve-seen-it-all-in-thirty-four years” story.

The judge speaks with temperate understatement for the record. “I think that would be inappropriate, counsel.”

The City Attorney is flustered, wants to ask his boss what to do. Can’t piss without approval.

Judge to me: “Mort, it’s your call. I’ll declare a mistrial, but if they want to re-try and they call the former juror as a witness, you’re cooked. If she pleads now, I won’t hurt her, but if she goes down, I’ll have to punish for the apparent perjury.”

We chew over my ethics. Won't put on knowingly false testimony, but it isn’t perjury if it isn’t “material.” Maybe they can explain it, maybe not. But it would hurt bad either way.

We go round and round, eventually the client takes the deal, gets a fine, 10 days CALTRANS, probation. Risks immigration consequences. But her marriage survives. She apologizes to me in bad English: "Sorry, you gave me good chance, but I lost it."

I walk out feeling empty.

Next Problem:
“Plead it or try it, Counsel. Simple as that.” The DA’s made a “final” offer. Strike a Strike, plead to one count. The judge is like the closer in the car dealership. “It’s a good deal, counsel. Gotta decide now, before I call in a panel. And, if you lose ...” He shrugs volumes, or at least years.

Real simple? Not really. Fine choice: pleading guilty is a rock that sticks in the throat ... or go to trial and end up in a hard place. My guy asks for advice. “What are my chances in trial?”

Also not simple. I launch into speech 14.2.1. “You could win or you could lose, you know? It’s a crap shoot. Twelve strangers make the call. Do they understand life on the street? You tell me. It’s the cop’s word against yours.”

“But what do you think? Can you beat it?”

I’m fighting the Cochran Effect. “Look, I’m good. I think I’m good, but I can’t do miracles. You could walk, and you could go down. I’ve seen it go both ways.”

He examines my eyes for sainthood or at least genius. “I don’t know, man. I can’t do life.”

My head remembers grandpa’s old gag: “But judge, I’m 60 years old, I can’t do 20 years.” Judge: “It’s okay. Do as many as you can.” I say, “It’s got to be your call. I’m not doing the time. If I lose, I go home. You don’t.”

We go around like this. At one point, he might ask, “What would you do?”

What a stupid question. Makes me feel nasty, superior. I indulge myself, say, “I take the deal if I’m guilty. But if I’m not, I fight it.” I watch his face, then add the tester. “Even if I did life, I’d know I went down fighting.” Cheap trick. He nods, but avoids my eyes. It was a low blow right in the gonads. Couldn’t help myself.

I still don’t expect him to make the “right” call. He wouldn’t be my client if he did that. But I won’t make the decision for him. I could do it, though, either way. I could tip him over into a plea or a trial with a few words. Some do, think it’s their province. Some for selfish reasons, ego, don’t care much if they lose. Others fear trial. I’ve tried it both ways – took too much out of me. What is the “right call” anyway?

If you force it, where’s the satisfaction? Either way you’ll be blamed. Not the system, not the facts, not the cops or DA or judge. You failed him. Gives him something to share with his cellies over the years, that’s nice for him.

There’s hundreds of decisions. I’ll make mine, you make yours. We’ll each live with the consequences. Yours may be an 8' by 8' consequence. My hell may be smaller. Inside my head festering with all the other regrets.

Last Problem:
More than once she asked, “Why don’t you tell me about your day?” She talked plenty about her problems, subtle choices, social politics, little dilemmas. But not problems for me to solve. I learned that lesson long ago. The mantra echoes: “Don’t solve it, just listen to me, okay?”

So all day long I’m in the problem solving business, but when I come home, I drop it.

“My day? Baby, don’t ask.” But she does ask. The trouble is, I don’t want to re-live the day. Left it on the freeway, near Pico, and now there’s the cats and a warm bed, music, maybe even sex if I can stay awake.

There have been times when I took it home, still seething, or bursting to share a laugh. But how to get her to get it? “... This DA, well you gotta know this guy, he argues this motion to the judge? Well, she’s weird, too, you know? She tried the Whatsis case with Adelson when that thing happened? Anyway, she’d denied the 995 motion and now the DA wants her to grant the 1538.5. I didn’t really expect any crumbs, but was setting it up for a 402.”

“Uh, yeah?”
“Don’t you see the irony? It’s hysterical.”
“It is?”
“All the guys in the office thought so.”
“Okay. What’s a 995, again?”

It’s really quite hopeless. Usually, I tried to hide the horrors from her. I’d come in, frayed at the edges but tightly wired at the heart, efforting loudly to divert, to conceal, nimble in the dodge.

Over time, I realized that she didn’t ever have to ask. She figured me out anyway. How? I have a theory, but it is sort of sexist, though I mean to say Iwas in awe. She had a vocabulary of emotions that made the OED seem like a comic book. She understood how everything related to feelings. How you walked, dressed, spoke, combed your hair, drove, held your fork, made love. Every word, phrase, tone, tic, scratch went into her data bank.

And in the end, she knew. It might take time, she might reach some premature conclusions. Might even force you to admit it before she could articulate it. But she would get there, and take you with her.

You couldn’t hide anything from her.

Her friends knew it before I did. They used her like a witch. They’d call, talk for hours, and they’d feel better. She collected dysfunctional pals the way some girls collect dolls.

When she got really sick, they’d call her - ostensibly to make her feel better - and end up talking about themselves so she could comfort them. Right up to the end.

I never solved her problems either.


  1. Great. Kind of dangerous: Goes from superb hardboiled to nostalgic/sentimental in 5.5 seconds. Although the reader gets whiplash, I suspect it accurately represents (despite the time disjuncture) a day in the life: from work to home, from present to past, from public to private, from technical/logical discourse to proustian internal memory/reverie.
    (Hello from Boston...)

  2. i second jem's throughly coherent & well-writ thoughts. wonderful post!

  3. Mom had a saying when we were kids and laughing hysterically and annoyingly, "Laugh in the morning and you'll cry at night" to quiet us down.
    I found laughter then tears in your message. Ron