Mike, Congrats on that win! Can you describe how the TLC methods helped you win this case for your client?
Sure — the first part of this case, and any case really, is using the TLC methods to discover the story, the real story, of the case. From the beginning, we used the TLC methods of discovering the story through psycho-dramatic reenactment. The story of this case was in large part related to these twin brothers who had joined the Marine Corps right out of high school because of their outrage over the events of 9/11. The neat thing was the military agreed to put them in the same platoon. They served together for several years and were both in combat in Iraq and Afghanistan. One of the brothers, Travis, had been diagnosed three times with concussions from exploding IEDs, so he had traumatic brain injury and PTSD. Travis is the one who got his head smacked on the pavement during this incident. The story we discovered was primarily about the fear that Travis and his wife had about yet another injury to his brain. That was their biggest fear. Here are these two young men who risked their lives for their country and they cannot walk down the street of San Diego without getting attacked by police officers – the very people that were supposed to be protecting them! That was a real story of betrayal, which is something that we teach at the Trial Lawyers College. The notion of betrayal is a big factor in most every case, and I only found out this betrayal when I took the time to prepare and discover the “back story” of my clients, if you will. Then it made more sense when I told the story of the events of that day. For my clients, the betrayal was overly aggressive, out of control police officers who injured them, bloodied them, and then took them both to jail for something that they did not do.
What happened is: Travis, his brother, his wife and their friend Andrew were walking by a group of men and one of them made some rude comments to the wife, so Travis said, “Hey, have some respect. That is my wife.” The guy walked over and punched him in the face. The cops did not see that act. They just heard people in the crowd, people kind of yelling. They come over and make the inappropriate judgment that Travis has somehow been involved in a fight and that is what starts them going after him. They misjudged the whole thing. The cops start throwing Travis around and Andrew goes in and complains be careful this guy is a veteran. He is complaining about what they are doing to Travis, then they start throwing Andrew around and slammed him down to the ground and he gets a concussion and stitches in his lip.
Since this occurred here in San Diego, we were able to do the psychodrama right there where it actually happened which certainly helped us see all the details.
Once we got the police reports it became very, very clear that somebody was lying. This was a case where either the police were lying or the plaintiffs/clients were lying. There was no in-between. Early on, we developed a connection with these clients where we began to care about them and we began to feel outraged at the injustice they had suffered. We knew that this was a case that we had to take because of the injustice that had occurred. What we talk about at the College is that caring is contagious. You cannot win a case unless you care. These four people were very easy to care about because they were such principled, honest, decent young people. The more work that we did with them, the more we cared about them. That is a big piece of what drove us to success two years later in the courtroom, but it started at the very beginning. It is like it was the least that we as lawyers could do for them after what they had done for us.
How do you communicate that caring to the jury?
We told them the truth. The jury had to decide who was lying and who was telling the truth. There was no other way to decide the case. That was the truth of the case. From the moment that we walked in, our deal was that everybody had to be as real and honest as they could be. Our hope was that the jury would believe us. They did. Again because the story that we discovered was a real, true, honest story and the clients were decent, honest, principled people. Particularly the Marines are people of honor, and part of the whole code of honor is to tell the truth. We were able then to say “If you think that these four young people are lying about anything then we should lose and we should go home. On the other hand, if you listen to them and you believe them then what you know is that they told the truth and the police are lying.”
It became clear for a lot of reasons that the cops were lying.
Do you look for jurors whom are supportive or empathetic of the police in a case like this?
You are looking for people who are open to the possibility that the police will lie. Interestingly enough, we had a police officer on our jury. We had a woman who is the head of firearms training for Customs and Border Protection. She is actually a peace officer. She trains police officers. She trains Federal officers. That is her job. She was on our jury. She ruled our way. That is the kind of person I would generally kick off the jury, but I only got to kick three off. At the end of the trial I talked to her in the hallway and the first thing she said was “Why did you keep me on the jury?” I told her “I kept you on the jury because I liked you and I trusted you.” I mean we really had this feeling that we could trust the jury do the right thing, to find the justice in the case. This is something that we talk a lot about at the College. Instead of seeing the jury as people that can screw us over, we work to really see our jurors as people who want to do justice and want to do the right thing.
Given the world we live in, where do you access that trust?
Let’s think about that. If I reverse roles with any one of those jurors and think about what it is like to be them – there I am in a Federal courtroom, in for jury duty, on a police case. I want to do the right thing. I want to do justice.
What enables me to trust people is that I think the overwhelming majority of people in America want to do the right thing. They really do. They may have biases and what-not that get in the way, but on a conscience level, people want to do the right thing.
At TLC we talk a lot about the idea of empowering the jurors. The truth is that they are doing something really, really important in this little courtroom and with this little case. This is the only way that we, and they, can enforce the Constitution. And when I trust them, they can trust me, and it becomes the overall tone of the courtroom.
Thanks so much. We look forward to seeing you in San Diego. You will be a wonderful asset to the students at that Regional Seminar, especially the lawyers who also defend civil rights.
Mike has been a civil rights and criminal defense attorney in San Diego since 1979. He is a 2004 graduate of the Trial Lawyers College and has been on the faculty since 2005. Mike started as a public defender and now specializes in 42 U.S.C. § 1983 civil rights cases, representing victims of police abuse. He has tried all types of police misconduct civil rights cases, including false arrest, excessive force, wrongful death, unlawful searches and seizures, jail medical care and First Amendment violations. Mike has received three Outstanding Trial Lawyer awards from Consumer Attorneys of San Diego and, in 2008, was named Trial Lawyer of the Year. He is also an avid student of psychodrama and how it can be used to assist trial lawyers.
Join Mike Marrinan and the rest of the faculty January 29-31, 2016 in San Diego at the California Regional Seminar: Cross Examination
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