In continuation of a series of posts I have just started with this one, I bring you a true story. It happened not recently, nor too long ago. When it happened doesn't matter, actually, I post it today in honor of today's Ballet Austin performance of The Nutcracker.
You'll see why.
The allegation was assault on a peace officer, specifically that the defendant had grabbed "the victim's scrotum and twisted, thereby causing pain."
Now you see why.
Anyway, it went to trial before the judge. Two witnesses who saw her hands go into his crotch area, but not the actual "grab and twist" testified to his pained squeal and subsequent bending over while gasping for breath. Their testimony was utterly consistent with that of the officer himself who added the details about her grabbing this testicles and twisting. (I wanted to do a reenactment, but couldn't find any volunteers.)
Now, trial can be a battle of words. The whole practice of law, really. The defendant had no real response, no defense at all, I gather that she (yes she) just didn't want to plead guilty. And that left the defense lawyer with little to work with. Very little indeed.
But the chap in question (a good friend of mine, by the way) was brilliant. He pointed out that the charging instrument said "scrotum" while the officer had said "testicles." As a result, the pain had been to the latter and not the former.
I pointed out in my own closing that the pain did not have to refer to the specific body part, and even if it did "the court may take judicial notice that in accordance with the evidence at trial it would be impossible to squeeze one and not the other." For good measure, since we were in that region, so to speak, I remarked that defense counsel was "splitting hairs."
I did not look at the defendant during closing, but I can assure you everyone else in that courtroom had trouble keeping a straight face. Judge included.
It's can be a funny job, that we prosecutors have. In every sense of the word.