A story and director’s soliloquy of the DWI trial

 

Paul Smith, TLC ’08 Grad. 

A story and director’s soliloquy of the DWI trial;

Well, I want to write something about this wonderful experience and must thank Bill and Gilbert for the opportunity to help with the pursuit of justice.

(Background facts, DWI, accident, refusal of breath and blood tests, and wrong amounts of alcohol consumed by Gilbert. Additionally, on the news the last couple of nights, 2 or 3 people by drunk drivers).

Now then, having nothing better to do, actually, I want to avoid a sentencing hearing,, Bill calls me and says let’s go to trial. Ok,, by the way, who is the client?

Never met Gilbert before, know nothing about the case and yet this is an unique opportunity to “ad-lib” a jury trial spontaneously. Why not? First offense no risk.

I meet Bill and Gilbert in the hall way of the courthouse, 20 minutes before jury selection and proceed to do a mini-drama with Gilbert,, being careful not to place Gilbert into any trauma.

Jury selection;

Bill does a wonderful job of voir dire and gives me 20 minutes to do some of mine. We keep a federal air marshal, a child protective service case worker and other non-traditional jurors, even though Bill could have busted the entire panel.

So, I can only speak for myself, my approach is one of feelings and emotions, not logic. The panel does a remarkable job of opening up for emotions through the DA’s and Bill voir dire, so what the hell, I’m thinking. I tell them I’ve never met a panel of such honest people who have shared the truth the way this one did and I tell them, I’m a alcoholic AND disgusted by DWI’s. We need to protect the public, (reverse reptile method) and address the raw emotions of those members who experience pain with the alcoholics they live with. (One juror shares her gratitude with us that I am now sober). I talk about AND demonstrate a sciciogram in front of the jury and talk about reasonable disagreement among jurors and show by going to opposite sides of the court room on a line a juror that is absolutely opinionated “guilty” and on the other side of the line in the court room, absolutely “not guilty” and” I envision myself being Eddie Izzard, (the British comic) reversing roles and holding a discussion with the other opposites on the line. (Reverse roles).

I am able to talk about guilty, not guilty, and hung jury and that it is okay to disagree with people as long as they are reasonable and reasonably believe their opinion,, respecting the voices of the tribe and unless you feel “the other guy or gal” is unreasonable, (i.e., my alien twin was driving the car, as an example) then it is your duty to argue for the not guilty verdict. Reasonable people disagree and if they ain’t crazy,, it’s got to be a not guilty.

I really can’t remember what else I did or didn’t do, I was completely present is about all I remember. I ask the social worker if alcohol is involved in most cases when the children are taken from the parents, I ask them to reverse roles and ask them how it feels to convict an innocent person? I ask the jury if they want to know anything about me.

Bill opens and says to me,, you take the first cop on cross. I watching the Judge and jury, (very pretty Judge) and of course I immediately fall all over myself, not knowing any of the facts about the case.

It is possible to use some script that works in the past,, and because of this I am able to score some points with an officer who will not answer any of my questions at all,, he continually volunteers information about DWI’s field sobriety tests, etc.

I’m feeling out of control and wondering why this fella isn’t admitting the standard questions,, i.e., it is possible to have odor of alcohol and not be intoxicated and other boiler plate questions. At all times I am looking directly at the jury, (Bill is staring at the Judge, lol or maybe it was the other way around), and I begin entering the emotional venue of the officer. He goes to a college where everyone gets drunk and he doesn’t, he looses several of his close personal friends to DWI and officers are lost to DWI deaths, and in his opinion, a .05 impairment should lead to arrest a suspected intoxicated driver. He also refuses to produce any back up notes, refuses to to back to the scene of the accident and see if there is a telephone pole close to the fire hydrant Gilbert’s car struck and unless ordered by the court,, he ain’t gonna do it. He refuses to tell us about his family or loved ones,, etc. He tells me he loves animals.

(I’m thinking to myself,, this ain’t right, why is this guy so adamant about this DWI)? In his opinion every field sobriety test is valid, and every driver who has damn near anything to drink should be arrested. By the way, none of the officers see Gilbert drive his auto and Gilbert is out of his car after the accident. NO pictures are taken by the officer and it is 29 degrees out there at the scene.

Feeling pretty frustrated and angry and noting to self never to try another case ad-lib, wondering if the jury is pissed off at me or him.

Bill does a wonderful job of crossing the next officer and the government rests. We call Gilbert and then magic happens in the courtroom.

I ask Gilbert to step down and show us, taking Gilbert through a re-inactment of the DWI scene and the bar and the feelings, soliloquy and double of what happens that night. Pure spontaneity, pure drama, everyone in the court room is watching the drama. Bill doubles as a telephone pole, I become the dog Gilbert swerves to avoid hitting in the road, and we reverse roles in the scene without any trauma to the client, (when a traumatic event is about to occur, I pull Gilbert out of the action to the mirror position to observe,, then put him back there to elicit “helplessness”) Gilbert re-inacts how he took pictures of his car that is wrecked and how another officer, who is not disclosed in the report, shoves him against the wall of a building and then leaves the scene.

Bill got officer 2 to admit the he said as he rolls up on the scene,, the camera is rolling.

Anyway, I tell Bill to stop looking at the Judge, (lol) and pass the Gilbert after getting him to talk about the emotion at the scene, the betrayal by the officers, the helplessness and the DA asks maybe 5 questions and we both rest.

Closing day 3;

Bill gets 8 minutes,, uses 10 and comes up with 3 feet of reasonable doubt, (distance between the fireplug and the telephone pole that Gilbert maneuvers and misses). I get 2 minutes and as Bill is getting ready to sit down, I tell him to zip up, not really,, and look into each juror’s eyes for about 30 – 45 seconds of very uncomfortable silence and ask them to reverse rolls with Gilbert. Remind them a drunk can’t take in focus pictures at night and show the story behind the witness’s testimony. First officer tells everyone .05 and Gilbert drunk,, really I stand behind the witness chair and say I’m really afraid what that other “idiot” officer did and I’m gonna get sued,, so I ain’t gonna mention anything about it to anyone.

I’m cut off by the Judge after 2 minutes.

Now, here’s something that I am telling you is remarkable,, the passion of the DA who argues the case for the state,, she came alive and gave one of the best emotional closings I have ever seen,, nervous with so much energy, she damn near fell over the flip chart, and even though the testimony took less than 6 hours, the jury is out for 2 hours. The Judge didn’t let them take lunch and I’m thinking a guilty verdict will be there for certain when they didn’t get to eat lunch and I thinking all is lost,, yet the verdict is NOT GUILTY.

I am the most surprised person in the court room and afterward, the Judge thanked us and signed the expungement order for Gilbert.

Bottom line, ad libbing is great if you know the story,, humor and intensity can co-exist and the real story is seldom what the facts are.

(By the way,, Bill is still staring at the Judge),, or is it me?

My attempt at humor, sorry.

Thanks for the wonderful rant and the great TLC lawyering of the “Outlaw Bill Clanton” who truly comes alive in trial.

Paul J. Smith

2017-12-27T11:25:22-07:00 March 26, 2012|TLC Blog|
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