A Goolsby "War Story" About Tolerating Stress And An Intolerable Judge

"The task...is not to feel secure, but to be able to tolerate insecurity." (Erich Fromm)

No doubt, all trial lawyers have war stories to tell about how, at some point in their careers, a fire-breathing judge has given them fits during a trial. Fortunately, for me, most of the Georgia judges I have appeared before have been polite and professional.  However, I will never forget one exception -- a cantankerous old judge who appeared to hate all prosecutors and all police officers, along with any lawyer who appeared in court against one of his favorite attorneys!  Here is my "war story" from my prosecution days about dealing with this judge and about what I learned from a stressful courtroom experience.

This experience occurred early in my career, when I was a young assistant district attorney.  I was trying my second rape case. Even on a good day, I still got the nervous "heebie-jeebies" whenever I appeared in court. The defendant in this case was represented by an experienced trial attorney who was one of the judge's best friends and "favorite son" in that community.  At least, it seemed that way to me!  Sometimes, when you are in such a courtroom, it seems like you can almost smell the "home cooking." In short, you feel like the visiting team and the home-town referee is favoring the home town team.  And I could tell that day that I wasn't invited to this special, "lovey-dovey" feast between the judge and his fair-haired son!

After jury selection, we routinely called our witnesses up front to be sworn in and "sequestered" in the witness room, in accordance with the rule of sequestration.  I informed the judge that I had routinely put our G.B.I. laboratory witness "on call."  In other words, I had decided to allow my expert witness to continue to work at the lab until just before I needed him to testify. After all, the lab wasn't too far down the street.  

I had no idea that this routine decision would set off the judge's fuse against me!  Here is what happened!

Just before I was supposed to make my opening statement to the jury, the judge called me and the defense lawyer up to the bench.  Then, without any warning or justification, the judge became as red as a ripe beet. While shaking his extended finger at my face, he shouted at me, "If your expert witness walks into my courtroom, in violation of the rule of sequestration, I am gonna lock you up!"  Then, he tersely added, "Now, make your opening statement!"

I did as I was told. I made my opening statement! Fortunately, because I was so focused on the important  task at hand, I managed not to become too rattled by the judge's threat. I stayed focused and won my case! 

But you can bet your bottom dollar that I kept nervously looking over my shoulder throughout that trial and made sure that my lab witness didn't waltze into the courtroom!

I also learned some valuable lessons from this dreadful experience. For instance, I learned that being a trial lawyer involves learning how to deal with stress and how to tolerate insecurity. With a tough old judge breathing down my neck, there was no way I was ever going to relax, or feel secure. But the key is that I persevered and managed to handle the stress.  In other words, I learned that, as a trial lawyer, you may not feel warm and fuzzy in the courtroom, particularly when a judge is spittin' fire at you, but you can still learn to deal with the insecurity, and tolerate it, in order to win your case!

I might not have enjoyed the home cooking, or the stressful experience, but victory makes a sweet dessert!

The Burden of Proof in a Criminal Case

There aren't a lot of hot news items today about criminal law "out there," so why don't we have a quick tutorial about the burdens of proof at trial. (Are you asleep yet?!) Do you know the difference in the burden of proof borne by the state in a criminal case, as opposed to the burden of proof borne by a plaintiff in a civil case? In a criminal case, the burden, (or required standard), of proof is "beyond a reasonable doubt." In other words, in a criminal case, the state bears the heavy burden of proving the defendant's guilt, (as to each essential element of the crime charged), beyond a reasonable doubt. Now, this really is a very heavy burden, (as it should be, because the government is attempting to lock up one of its citizens). But this doesn't mean that the state must prove the defendant's guilt in a criminal case to a mathematical certainty. Reasonable certainty, (or removal of all reasonable doubt), is all that is required. (As a practical matter, at a criminal trial, that's about all that a Georgia judge will instruct a jury about concerning the burden of proof. The courts will otherwise leave it up to the jury to decide what "beyond a reasonable doubt" really means!)

In a civil case, on the other hand, the burden of proof is much lighter. The burden in a civil case is "by a mere preponderance" of the evidence. In other words, at a civil trial, looking at the scales of justice photo above, a party may win simply by having the scales weighed down, (in their favor), with one additional grain of sand. Simply put, that is all a "preponderance" means. But again, in a criminal case, the scales must be weighed heavily in favor of the state, in order for the state to win.

So, there! This tutorial about burdens of proof wasn't so bad, was it? And maybe next time, we can hope for some hot criminal law news topics, can't we?! Okay, you can wake up now!

Illustrations For Closing Arguments in Criminal Cases

You might justifiably be wondering why does a criminal defense attorney have a picture of a cock roach in a blog about white collar crime! (And please hold the comments or jokes about criminal lawyers and roaches!)

The point I wanted to make in this post is about the importance to lawyers, (both civil and criminal), of using illustrations in closing argument at trial. The relevance of the cock roach will become apparent below! As the son of a Baptist preacher, I once marveled at how my father kept his congregations enthralled through his use of poignant or funny illustrations. I have learned that the same is true for jurors. By weaving in both quotes and illustrations, a good trial attorney can help keep the jury interested and focused on the points he or she is making.

For example, in one of my public corruption trials, (as a former federal prosecutor), I wanted to emphasize to the jury the point that the defendant politician knew about all the corrupt activities going on around him. To illustrate the point, I told the jury that, "Not even a bashful cock roach could sneak into his business without him knowing about it!" I also used a quote from the Bible, during the same closing argument, "Do not lie, do not steal, do not deceive one another." I won my case!

Now, to be honest, I doubt very seriously that I won this federal criminal case simply by using illustrations in my closing argument! But I AM convinced that, by using illustrations, a trial lawyer helps keep the jury focused and better explains important points. And I'll bet even an intelligent cock roach would agree with me on this point!

What is the Best, Winning Defense Against a Criminal Charge?

As a former career prosecutor for over 26 years, including over 20 years as a white collar crime federal prosecutor, (along with about 5 years as a criminal defense attorney), I have tried literally hundreds and hundreds of criminal cases. And I have seen criminal defense attorneys raise countless defenses, such as alibi, insanity, "the Devil made me do it," immunity, mistake of fact, and just about everything else imaginable. But can you guess the best, most winning defense that I have ever seen offered or utilized against criminal charges?

The answer, in my opinion, is fairly simple: If the government has (falsely) accused you of a crime, then you, (after careful consultation with your defense attorney), should consider raising a defense of admitting the act, (especially if they have overwhelming proof), but deny the intent. That is the best defense that I have seen succeed more often than any other defense! In other words, nearly every crime has two elements: an act and an intent. And generally, the law requires the government to prove both: i.e. not only that you have committed the criminal act, but also that you had the requisite mens rea, or intent, to commit the act. The first element, (i.e. the act), is often easier to prove. But the latter element, (i.e. the intent element), can often be difficult, if not impossible, to prove. For example, in a false billing, Medicare fraud case, the government may sometimes have overwhelming proof, and can easily prove, that you, or your employees, submitted the alleged improper billings. But it may be difficult for the government to prove that you intentionally over billed the government program. In other words, in some cases, maybe unintentional mistakes were made in only a few of the billings, out of numerous legitimate billings that were submitted for reimbursement. Or perhaps you reasonably relied on expert advice that the billings were legitimate and therefore didn't intend to defraud the government. Again, if the government cannot prove the element of intent beyond a reasonable doubt, then the prosecution should fail and you should be acquitted.

Naturally, each criminal case must be carefully analyzed by you and your experienced criminal defense attorney as to its own unique set of facts. But generally speaking, in my opinion, the winning defense in many cases may often be to admit the act, but deny the intent! At least this defense beats blaming the Devil for the crime!