Monday morning Steve gave his closing argument in the case of People v. Carlos Mendez.
Moira Hanson preceded him, laying out the devastating facts that made Mendez out to be the proverbial toast. Steve had to admit she was good. Poised and professional. A little cold perhaps, but a DDA could get away with that.
Not so the defense lawyer. As Steve got ready to make his argument he kept thinking about the old saying, supposedly uttered by Abraham Lincoln himself. When the law is against you, argue the facts. When the facts are against you, argue the law. When both are against you, pound the table and shout for justice!
Facing the jury, Steve thought Honest Abe knew what he was talking about. And as he had no facts or law on his side to speak of, he was going to start pounding the table.
He was simply going to persuade. That was the lawyer’s bottom line, after all. You persuaded, you did the best with what you had. As his crim-law prof had said that first year, if you find a nit you pick it. And that was how you “make a noise like a lawyer.”
Could he still do it? Could he marshal all his inner resources and put them to work to change minds? For weeks he had kicked the dogs of self-loathing back. They always seemed to bay and snap before and during trial. Now was the final shot, and he told himself to give it everything. Make a noise like a lawyer. At least show the client he was getting his money’s worth.
Which, considering Steve hadn’t been paid yet, was a lot.
“Ladies and gentlemen, when you took your oath as jurors, you swore to do your duty to see that justice is done. You did not swear to listen only to the prosecutor, or me, or even to the judge alone. You stand in the most important position possible for a citizen in our country. You stand between the awful power of the State and a man who is presumed innocent. That is your role in our system of justice.”
Steve looked at the jurors for a face to connect with. Number six, a forty-year-old woman who worked for BlueCross insurance, nodded slightly.
“That means you must hold the prosecution to its burden of proof,” he said to number seven. “That’s a great big burden too. Beyond a reasonable doubt. You know what that’s like?”
Steve walked to the prosecutor’s table, where Moira Hanson was wearing her best skeptic’s expression for the jurors. “It’s like there’s a great, big boulder sitting here on the prosecution table. Can you see it?” He pantomimed feeling the contours of a gigantic rock.
“It’s here, and Ms. Hanson can’t just chip away at it, which she tried to do in her summation. No, she can’t leave any of it on the table. Not even little pebbles. The rock is still here.”
He smiled at the DDA. She glared back. She hadn’t been a happy camper when the judge decided to use the traditional jury instructions, called CALJIC. There’d been a revamping of instructions in California, to make them more “user friendly,” but some judges were sticking with the tried and true.
Which is what Steve knew best. He turned to the jury once again and said, “And you must also remember that you are the sole judges of the facts. And the testimony. Did you know you don’t have to believe a police officer just because he sits in that witness chair? Police make mistakes too. Let’s talk about that.”
And he did. For half an hour he put the best face on the bad facts that he could. That was his job. Defense lawyer. You don’t lie down and die because a prosecutor has a slam dunk.
He finished with, “So remember, ladies and gentlemen, only you represent justice here. Only you. And Mr. Mendez and I know you will do your task well.”
This time, more than one head nodded in the jury box. Steve hoped that several members of the Mendez clan, out in the gallery, agreed.
Then it was Moira Hanson’s turn to rebut. This would be the last word to the jury from either lawyer. The next step would be instructions on the law from the judge, and then deliberations.
“Do not be fooled by the empty rhetoric of the defense lawyer,” she said. “You know, Abraham Lincoln said when the law and the facts are against you, pound on the table and shout for justice.”
Steve’s face started to burn. He just hoped the jury couldn’t see it.
Hanson took just twenty minutes to wrap it all up. In another half hour the judge had given the jury instructions. At 11:57 the judge told the jury to go get lunch and be back by 1:30 to start deliberations.
Steve felt the urge to drink his lunch. He always felt that way at the end of a trial. Last time, in fact, he’d done that very thing and woke up in the parking lot in back of a Safeway.
In the hallway he was surrounded by Mendezes, Carlos’s mother taking the lead. She was a fireplug of a woman looking up at him with ever-increasing intensity.
“What happen now?” she said. “What happen now?”
“The jury will come back to deliberate,” Steve said.
“How long it take?”
“We just don’t know.”
“Carlos get out?”
“No, Mrs. Mendez, Carlos is in the lockup.”
“When he get out?”
“Um, the jury has to — ”
“He get out, right?”
Several Mendez faces looked at Steve expectantly. As if he were Harry Potter and could wave a stick and make everything all right. What he really wanted was an invisibility cloak.
“We have to wait for the jury, so I’ll call you when they have a decision,” Steve said. “So just try to relax and — ”
“No relax! No, no!”
Steve patted her arm and was grateful when a couple of the men took over and led her toward the elevators. But all the while he was thinking it was always true when a jury was out. No relax.