FEBRUARY 27, 2023 – (Cont.) By a classic Socratic exchange with us students, Pirsig revealed how the defense could most effectively cross-examine the cop. It added up to this:
DEFENSE COUNSEL: So it’s your testimony that when you turned your flashlight on the car window, you saw a naked man?
COP: Yes.
DEFENSE COUNSEL: You’re absolutely sure you saw a naked man?
COP: Yes, I’m sure. Buck naked.
DEFENSE COUNSEL: Isn’t it true, officer, that at night, glass works effectively as a mirror?
COP: Yes [“Yes” being the only response a jury would surely expect and accept.]
DEFENSE COUNSEL: I have no further questions.
My vivid memory of that amusing example of Pirsig’s teaching us how to think didn’t meld with anything substantively useful about criminal law or criminal law procedure. For any practical knowledge, I’d have to rely on actual courtroom combat after I’d graduated from law school and passed the bar.
During my first year of practice, I was my firm’s designated “misdemeanor prosecutor” under its contract with a local municipality. It was essentially a training mission for a lucky first-year associate in the litigation department. The role entailed a bi-weekly trip to the Washington County Courthouse in Stillwater, where I’d deal with a dozen or so bar fights, traffic offenses and other misdemeanors. In the main it was a revolving door of local under-performers. The arresting cop was always one of the three on the force, the presiding judge was one of four on rotation. The three public defenders likewise took turns. Everyone among the cops, judges and defenders was a colorful character.
Judge Albertson tried to project a tough-judge image for the benefit of the riff-raff who cycled in and out of his courtroom. His standard operating procedure when taking pleas was to scare the bejabbers out of the first guy up, with a palpable ripple effect moving across the faces of the next 10 or so defendants waiting their turns.
The clerk called the name of the lead-off defendant, who shuffled up to the bench with his public defender at his side. Albertson then glared at the kid—the overwhelming number of defendants, it seemed, were men in their early 20s—and start in on the judge’s standard speech about how breaking the law was a slippery slope; that the prosecution’s agreement to accept “a disorderly” and agreement to one year of probation instead of going for the “assault” charge and jail time was to be taken as a gift . . . and a wake-up call.
As the judge uttered his stern admonition, he raised ever so gradually a heavy desk calendar off the bench. All of us regulars—courtroom personnel, cops, public defenders and I—knew full well what was coming next, but except for the repeat offenders, neither the defendant in front of the judge nor any of the others in line was ready for the imminent blast, signaled by the raised calendar now being a full foot and a half off the bench. When the judge reached his line, “. . . because, if I EVER see you in my courtroom again . . .” BAM! Albertson released the calendar at a height and angle practiced to achieve maximum surprise. Invariably, the poor defendant jumped . . . as the rest of us snickered and the judge finished his warning: “. . . I will throw the book at you. Understood?”
The defendant always understood. (Cont.)
(Remember to subscribe to this blog and receive notifications of new posts by email.)
© 2023 by Eric Nilsson
