Friday, October 7, 2011

Flashback, part 2

This is about risks. About having an idea during trial, weighing the options, and doing it anyway.

I posted earlier in the week about my colleague Ray Espersen, his witticism that cut me down to size in my last trial. Well, I mentioned that I managed to get a modicum of revenge with a little move of my own.

Here's the setting: the State (me) had alleged that the defendant had threatened a family with a knife. The victim had testified that the defendant pulled the knife from his back pocket. (Indeed, when the police arrived the defendant was still waving it around and the officer had to tase him.)

I introduced the knife into evidence during the victim's testimony. It was about six inches long, a boning knife (for examples, see here).

During closing arguments Ray continued a theme he'd started earlier in the trial, while showing the knife to the jury: he insisted that no one would keep such a knife in their back pocket for fear of being stuck (if the blade were facing down) and they would risk cutting their hand (if the blade were sticking up). His point: the chief witness lied about events, making our case not credible.

As I watched Ray make his point, I knew what I had to do. I knew it came with risks, sure, but I simply couldn't help myself.

I opened my argument talking about what the cop had seen, how it had corroborated the victim's testimony. As I spoke, I slowly took off my jacket, folded it, and placed it beside the court reporter. I knew this was unconventional and would hold the jurors' attention. I continued talking as I picked up the knife and slid it, point down, into my back pocket.

Very, very carefully.

I talked some more, about something or other, moving about (very, very carefully) in front of the jurors.

Then I paused, withdrew the knife from my pocket and placed it on the front edge of the jury box.

"So much for that argument," I said. And moved onto something else.

Afterward, Ray told me he was ready with his handkerchief, desperately looking for the first sign of blood trickling down my trouser leg, ready to leap up and offer medical assistance.

I'm very glad that wasn't necessary.

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