It is time for another Dad story. Unfortunately for some readers, this will not be a flying story, although I am working on another of those. This is a story about a father and son, both lawyers, who worked together for more than twenty years. Without a single hard word or argument, ever.
It should come as no surprise to anyone who knows me that my dad has been and always will be my hero. I have lived my entire adult life trying to live up to the standards he set and to reach the goals he established for me. It has not been easy. Mostly, I have come up short.
My dad followed a simple code. Just “Do the right thing.” There is no sign pointing out the path to doing the right thing. This command seems so simple, but it is not. Oftentimes, since his untimely death, I have struggled with “What is the right thing to do?” Not surprisingly, the “right thing to do” is frequently ambiguous. Particularly in the legal business. But then that was one of the first things he taught me.
Several years ago, I represented a middle-aged man who was charged with having sexual intercourse with his step-daughter, beginning when she was twelve years old. This illicit activity went on until she was about sixteen. Eventually, the mother blew the whistle and ratted him out to the cops, not because she objected to the underage sex, but because he preferred daughter to mother as a sex partner, which I assume hurt her pride. Pretty sick, huh?
The case was in another county, where I did not often practice. The prosecutor was up for re-election and was keenly interested in getting re-elected, as are all politicians, mainly, I suspect, because the $90,000 a year he was getting paid was the most he could possibly make playing lawyer in that small, farming county. Hence, he was not interested in making any deals for my client for fear the learned electorate would think he was soft on perverts.
Judges like molest cases, particularly jury trials, since they get local newspaper and radio coverage. My experience is that they outwardly assume an air of neutrality, but inside they are just seething for a chance to max out a sentence on any molester found guilty by a jury. The public detests molesters, so they like the maximum sentences. The judges get to look impartial and then pound the defendant into the ground at sentencing, garnering the approval of the populace.
The judge was also up for re-election and desperately wanted to remain in office to puff up his inflated ego and, like my prosecutor buddy, he knew it was the best gig he was ever going to get. He knew he would starve to death if he had to rely on an actual live client walking into his office and paying real money for representation. As Clint Eastwood famously stated in one of his Dirty Harry movies, “A man’s got to know his limitations.”
If this sounds like I am painting a picture of odds being stacked against me and my client, you would be right. Almost insurmountable odds. But I was naïve. I still thought that justice was blind and my “brilliant representation” could even up the odds, so that my client would have his day in court and be treated with fairness. Sometimes it helps to be too dumb to know better. That was me.
Even worse, I suspected that almost all, if not all, of the potential jurors would be older and come from long established, farm families. These are good, reliable people, filled with common sense, and make wonderful friends and neighbors, but are not likely to show any hesitancy about finding my molester- client guilty.
I will not bore you with a long recitation of my remembrances of the three day jury trial that followed, but a brief recounting of a couple of events that happened would be in order.
First, when the prosecutor and defense attorney pick a twelve person jury, each of the lawyers gets to ask each potential juror questions, presumably designed to insure that juror is neutral. This is a complete crock, of course. The truth is that both lawyers are trying to select jurors that are favorable to their side. Neither lawyer wants impartial jurors. Trial lawyers are looking for an edge on the other, no matter how small. As a consequence, the number of questions that a defense attorney might ask a potential juror is often many times the number of questions that a prosecutor might ask, particularly if he thinks, as did the prosecutor in this case, that he has a good case.
Many judges do not like voir dire, which is what questioning the jurors is called. The shorter they can make this trial process, the quicker the trial gets started and done...and the quicker the defendant is found guilty. So the first thing our impartial judge told me at a pretrial conference was that the total time I had to examine all of the jurors would be twenty minutes and that our learned judge would be using his stopwatch, which only he could see to keep time.
Let’s see now, twenty minutes to examine however many jurors would be needed to seat twelve. That would mean that I would be able to spend 1.7 minutes per juror if I took the first twelve on the list. As a defendant charged with a crime which could put you away for the rest of your life, you would be alright with that time limit, wouldn’t you? You wouldn’t? What’s the matter with you? Well, I was not going to take any of that crap from the judge, so I filed a formal objection saying that such a time limit would seriously impair my ability to secure a neutral jury and there should be no time limit. Obviously, the prosecutor objected, as I expected.
Just before the jury selection was to begin, I stood and voiced my objection to the time limit, cited a few cases supporting my position, and suggested that if the judge’s son or the son of a local juror were on trial there would be no such limit. All in front of the potential jurors. To my surprise I caught several of the jurors looking at me like they thought I was right. I followed my initial comment by saying that this was a criminal trial that could result in a substantial loss of my client’s freedom and that surely a few more minutes couldn’t hurt the cause of justice. I then added that the judge’s position in denying my client his basic constitutional rights would make the basis for a simple and likely effective appeal. That got the judge thinking.
Not surprisingly, the judge was ticked off. I detected that the jurors realized that the judge was trying to push this cub-lawyer around and that he had misjudged me. If my client and I were going down, we would both go down swinging. To everyone’s astonishment, the judge backed down said the time limit was off, but that I had better move things along. I then asked the judge if the prosecutor was to move things along also? The potential jurors laughed at my question. The judge was not amused.
It took all morning to pick the jury. Only one thing about the process stands out in my memory. As I questioned the fourth or fifth juror, who was an older lady, I revealed that this was a molest case and inquired if the nature of the case would be troublesome for her. She looked at me, hesitated for a few seconds… and then threw up in the jury box. I was not expecting that. No one else was, either. So what do you do? Leave her on or ask that she be dismissed as a juror?
I was not certain what to do, so I asked the judge for a brief recess while we waited for the janitor to clean up the mess. I helped the janitor clean it up, telling him it was all my fault, making sure the potential jurors remaining in the courtroom heard what I said.
While the potential jurors were coming back into the courtroom, I discussed the decision to be made with my client. As you can imagine, he did not think that vomiting was an indication that the lady would be favorable to him. On the other hand, I saw something in that lady’s face that struck me. I asked her if she was feeling better. She replied that she was. I then asked, “My client is very concerned that you are disgusted with him and that you have made up your mind about him being guilty. I told him that I thought you were a fair-minded person and that you would give him a fair shot. What do you think?”
She hesitated for a few seconds and then said, “I think that the crime is one of the worst. Right up there with murder, but I haven’t made up my mind. The prosecutor is going to have to convince me, so that there is little doubt in my mind before I would vote to find your client guilty. I have an open mind about it, Mr. Bolinger.” I left her on and to my surprise the prosecutor did not move to strike her.
It took three days to try the case. Trying cases in front of a jury is a tough way to make a living. Television and movies make it look exciting, and sometimes it is, but mostly, it’s just plain, hard work. You are concentrating 100% on everything that is going on, the body language of the jurors, how the judge is acting, the anticipated questions of the prosecutor, the questions you are going to ask, making objections, all the while trying to keep your client’s body language in check, and always acting with confidence and smoothness, no matter what happens. Doing that for eight hours a day for three days is absolutely exhausting. And then there is the responsibility of your client’s remaining life, or at least thirty years of it, hanging over your head.
After three days, the jury went to the jury room to decide whether my client was guilty or not guilty. My client went back to jail to await the verdict. It was about 7 PM and I was alone in the jury room. The jury had been out for about three hours.
I heard footsteps coming up the marble courthouse staircase and I thought it might be the bailiff coming to say the jury had reached a verdict, but it was my dad. After his workday, he had driven an hour just to sit with me and wait on the jury. He asked how long the jury had been out and I told him. So the two of us just sat and waited, until he pulled out a deck of cards and dealt the first of many hands. We waited some more, occasionally looking at our watches and silently wondering what was going on in that jury room.
Looking back now, I know that he drove there because he knew how tough those cases are and to buck me up when the jury came back with a guilty verdict. He was there to protect me from a crushing loss. But the jury didn’t find him guilty. They found that guy not guilty. The initial vote was eleven to one to convict. The lone holdout? My lady that threw up. All that time dad and I were waiting, she was convincing each of the other eleven jurors the defendant was not guilty. One at a time. A woman of her word, I would say.
Upon hearing the verdict, my client laughed out loud. The prosecutor was obviously distressed and the judge was beside himself. I could barely conceal my smile, but I did when I shook hands with the prosecutor and told him he did a good job. The judge ignored me.
My dad smiled as we walked out together. As we walked down the stairs briefcases in hand, he put his hand out and shook mine. He said,”Welcome to the club, son. Most attorneys don’t have nerve enough to try any jury case, let alone a molest. Let alone win. You will find that the prosecutors will get word of this by tomorrow and your bargaining power in criminal cases will skyrocket, because they will know that you aren’t afraid to try a case, and you just might win. They will be afraid of you. You will probably get a bunch of new cases because of this. Raise your fees. Nice job.”
From that day on, our relationship was different. While I was certainly still his son, I was now a veteran of the courtroom wars. In the years that followed, he often asked me what I thought of a case, as I often consulted with him. I became more independent and he frequently told me to just go with what I thought, as I knew more about the case and people than he did. In other words, he trusted my judgment. My confidence soared.
In courtroom lawyering, which scares most lawyers to death, confidence is crucial. It is a lot like the fighter pilot business. It is said that there are only two kinds of fighter pilots: hunters and targets. So it is with courtroom lawyers. Good ones are suit-clad killers, with boundless egos, always looking for a fight.
Looking back now in the twilight of my life, I realize how much Dad taught me about people, practicing law, and about life. I could not have learned it from anyone else. His insight was priceless. I owe him so much. Whatever small success I have had as a lawyer, I owe to him. He was remarkable man and, if a few good men still walk the earth, he was one of them. He is still my hero.