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Tuesday, May 19, 2009


I began my most recent trial on May 6. Testimony began 3 days later and today the trial came to a sudden screeching halt ... in a mistrial.

The lawyer for the co-defendant didn’t show up this morning. Yesterday, as he was cross-examining the DA’s investigating officer, he had an "episode" and brought the trial down around him.

His problems became apparent long before this trial began. He had been retained by his client’s family to represent him in this attempted murder case and had agreed to represent him in another, less serious case as well. Several months ago, he had completed that jury trial against the same DA and judge. His client had been convicted and he complained to me that the judge and DA had conspired against him, preventing him from presenting his defense and arguing the evidence.

I found his explanation unconvincing. In fact, as I probed him for details, it became apparent to me that he had failed to lay the foundations needed to challenge the evidence he complained of. Like many lawyers I’ve run across over the years who haven’t learned their craft in one of the government agencies, he lacked the discipline to anticipate objections and prepare his case in compliance with formalities that the law demands.

His performance during our trial reinforced my first impression. Time after time, he hit the stone wall of sustained objections to his poorly framed questions to witnesses. Each time, he attributed the opposition to bias against him personally and became more and more morose, sarcastic, pained.

Earlier, he had sought to delay the trial start, first trying to challenge the judge for "cause", then claiming a variety of vague health problems. Because of his vagueness and previous attempt to escape this judge, his credibility was challenged by the judge, who asked him to bring a doctor’s letter to explain his issues. He never did so, and when she offered to relieve him and appoint a substitute counsel, he refused, insisting that he was now able to go forward.

It was apparent to me as the trial went on that his health, which he told me were related to chronic heart problems which he controlled with nitro patches, was affecting his performance. There were times when he was detached, unfocused, misstated the names of witnesses, testimony that had been given earlier in the day. His concentration was shaky.

Yesterday, as he was again battered by the D.A.’s persistent objections to his questions, he stared vacantly, then mumbled "No further questions" and sat down.

The jurors, who had often smiled in embarrassment for his obvious ineptitude, now stared at him in shock. He was ashen, sweating, tears in his eyes. I whispered across the table to him.

"I’m confused," he said.

I brought it to the judge’s attention. She immediately called a recess. The bailiff called paramedics, who arrived, examined him, and wheeled him to the hospital.

The D.A., in her usual display of sensitivity, opined that he was "faking", a part of his clever plan to force a mistrial, a defense lawyer’s dirty trick.

This morning, the court was informed that he had been scheduled for an angiogram. The D.A. called the hospital herself to confirm the facts.

Last night, anticipating the problem, I researched the case law. What happens when a lawyer becomes incapacitated during a jury trial? The Constitution says that once a jury trial begins, jeopardy attaches. If a mistrial occurs without good cause, the defendant can’t be re-tried for the same crime. What is "good cause"? And what happens to the trial of the other defendant, i.e., my client?

I found a case that I remembered. In the early 1970's Charley Manson and his girls, Patricia Krenwinkel and Leslie Van Houten, were tried for the Tate-LaBianca murders, another "Crime Of The Century".

One of the lawyers was Ron Hughes. Ron had been a clerk with the Public Defender when I was there. When he passed the bar, the office refused to hire him, citing his obesity. He then lost a huge amount of weight and re-applied. They still refused.

Eventually, he turned up as attorney for one of the girls. Ron had met the girls when he clerked in Juvenile and had befriended them.

Manson had brought him in as his lawyer, and later as counsel for Van Houten. After six months of trial, Hughes suddenly vanished on the eve of closing arguments.

To his credit, Ron had tried to separate his client from Manson, although all the girls were anxious to sacrifice themselves to save Charley. With no notice, he didn’t show up for court one day, and eventually was replaced by the appointment of Maxwell Keith, who tried to prepare by reading transcripts.

The appellate court reversed Van Houten’s conviction, and summarized the alternatives available to a judge when faced with this kind of emergency.

Ron Hughes’ body was found in a creek bed some time after the trial concluded. Other Manson followers were suspected but no charges were ever filed.

So today, a mistrial was declared and my case will have to be re-tried to a different jury.

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