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Attorneys are taught that facts win trials. Tell a good story, present it right, and the jury will acquit. But even the best laid plans can fail. This is one such story.
In molestation cases, the complainant’s testimony alone often suffices. No other witness or physical evidence is required. So the result may come down to the riddle of the jury.
In my experience, if you are open with a jury they will listen. If you spend too much energy worrying about appearances, you can lose their attention. I’m sure most attorneys were told in law school what color tie to wear at trial — even, if you can believe it, what kind of shoes. For goodness’ sake, if your feet hurt, wear what’s comfortable and joke about it in your opening. That will do more than worrying about clothes.
My tale concerns the first jury trial of a defense attorney who later became seasoned. It looked like a slam dunk for the defense. All he had to do was wait for the state’s witness — their only witness besides the investigating officer — and catch him in a lie.
This was back in 1992, when molestation prosecutions were almost impossible to win for defendants.
The defendant was, by any jury’s measure, odd: physically awkward, with a long criminal history — nine years in prison for burglary before 40. His record loomed like a storm cloud, ready to burst once he took the stand. He walked with a cane and didn’t sound right when he spoke.
The complaining witness was a teenager whose story was straightforward and unwavering, as credible as one could imagine. The defense put the defendant on the stand. The case turned on moments that could never have been rehearsed.
The teenager testified the defendant was shirtless during the alleged incident. In full light, he could see “everything.” Twice on cross-examination the teenager insisted he saw “no scar, no markings, no unusual tattoos.” Keep in mind the “victim” never identified the “other four attackers,” and it was clear he had other issues with the defendant.
The defense attorney seized the moment and asked his client to show the jury his torso. A glaring red scar sprang into view — impossible to miss, running from below his belly button to his neck — the mark of major surgery, unmistakable in the bright courtroom light. The jury’s reaction was visceral. Several jurors shifted in their chairs, and one was heard to say, “Oh, my.”
The prosecution could only watch as its case suffocated on a single fact. If the alleged victim had truly seen everything, why didn’t he mention the most visible feature?
But truth is rarely that simple. The jury was out a few hours and, much to the new attorney’s bewilderment, voted to convict. This is a living reminder of the fallacy of assuming you have a winner. In retrospect, the attorney told me some 30 years later, perhaps he should have pressed the officer or the witness differently. When he asked jurors the next day why they convicted, several said, “We weren’t sure he was guilty, but we did not want to let him go.”
Juries are not mere fact-finders. They are human beings carrying doubts, desires and their own sense of justice. In the end, the jury writes the final act.•
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Graham is a criminal and family lawyer in Bloomington. Opinions expressed are those of the author.
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