1. Call Him Doofus
shall do just that...
seen many guys like him up here, a parish located in the area
of Louisiana they call the "Ark-La-Tex" because of
its proximity to both Texas and Arkansas -- but they were abundant
in other locales where I've practiced. (Remember, I'm that most
despised and penurious of attorneys, a public defender.) In Jefferson
Parish and New Orleans the courthouses and jails thronged with
surly black guys in their early twenties, no jobs or futures,
adorned with gold tooth-caps and ugly tattoos; they weren't violent
criminals, , for the most part, but always in trouble for dope
or petty burglaries or the like. What kept them in trouble, usually,
was the idiocy of their mouths.
least, such was the case with my new client. His rap sheet showed
nothing more serious than an old burglary ten years before. This
time he was in jail for some unpaid traffic tickets. These being
no big deal, Doofus would have skated home quickly -- were it
not for his attitude.
Doofus came to my attention -- and
to the court's docket -- because of something that had happened
while he was incarcerated for the tickets. He was being held
out in the country at the parish's minimum security jail -- the
"Pea [for Penal] Farm". It's considered minimum security
because the 140 (or so) inmates are low escape risks, even though
their alleged crimes (none are as yet convicted) range from missing
court dates all the way up to multiple counts of child molestation.
I was surprised to learn that the parish staffs the Pea Farm
with no more than five or six guards at one time, but that only
shows how safe they think it is.
on the day in question, one of the guards, whom I shall call
Waldo, went back to the dorm where Doofus had his bunk.
Waldo was rousting two other inmates who were bonding out. He
told them they couldn't be released until they turned in all
their parish-issued property -- and Doofus, nearby, remarked
that the officer was a liar.
thing was obvious from the get-go: Doofus was a pushy big-mouth.
One of the other guards told me that he'd come into the jail
flapping his lip so much that the guard had -- to quote him --
beaten the fool out of him. Apparently there was
plenty of fool left. Like I said before, I knew the type. Though
he was 26, Doofus had the social maturity of an angry baby with
a wet diaper. It was as if he wouldn't know himself unless he
was in trouble. Thus his utterly pointless sass to Waldo, a guy
older than he was, but far bigger, stronger, and tougher, and
armed with Mace and a club and the authority to utilize them.
response was predictable. Tired of Doofus' -- quote -- "jibber-jabber,"
he threw him against the wall and gave him a taste of Mace. He
then tried to hustle the blinded, squawking miscreant out of
who has been maced or tear-gassed, as I have, could tell you
how Doofus was going to react. He flailed his arms wildly --
catching Waldo in the face and gifting him with a righteous shiner.
As they careened out into the common area of the prison, they
were joined in the melee by other guards, one of whom also caught
a sock in the chin. Numbers, training, size and skill took their
toll, however, so Doofus was quickly soothed into a state of
restful unconsciousness -- and charged with two counts of battery
on a police officer. With injury. Felonies.
Doofus came to trial -- you knew this story was leading to the
courtroom -- the Assistant D.A. practically gloated. The defendant
was a repulsive hoodlum, in jail, he had two guards who had been
hurt and a nice, conservative Red State jury pool -- for this
is a bedroom community for an Air Force Base, and thrives with
retired military. How could he lose?
was my judgment, too, only I was far glummer about it. Though
judges aren't supposed to punish defendants who choose trials
over plea bargains, they almost always do -- giving the guys
who have wasted their time an extra dosage of jail to consider
their stubbornness. In Doofus' case, that time could be substantial.
Also, though Doof had only a burglary on his record, and that
many years before, it was still serious enough and recent enough
to qualify him as a repeat offender -- which, under Louisiana
Revised Statute 15:529.1, would earn him a much fatter sentence,
with no time off for good behavior. It's called a "multiple
bill," and it's deadly.
before trial, I tried to impress these facts upon Doofus. I urged
him to accept the state's plea offer, measly though it was: one
felony, instead of two, sentence up the judge, and no multiple
bill. The dark purple scars on Doofus' arms and neck seemed to
flare. No way, he squawked -- he wasn' takin' no felony!
But but the multiple bill -- No! Gih. What a maroon!
resigned myself to a Guilty as Charged verdict -- only my second
since coming to this area.
One nice thing about having an unwinnable
case is that you just plow on. I remembered the credo of the
Public Defender, holy writ I made up several years back: When
your client is too dumb to face facts, stand up and tell the
jokes. The hilarity began with voir dire -- jury selection.
The A.D.A. began his interrogation of the
first six potential jurors by mentioning where he was born and
grew up -- just coincidentally a few miles from our courthouse.
His object, of course, was to establish himself with the jury
as One of Theirs -- trustworthy, reliable, and therefore, believable.
Having lived in the area for just over a year, I obviously couldn't
match his advantage. So I made light of my disadvantage.
"Anyone born in Mojave, California? No? Gee ..."
Another unwritten P.D. rule goes, When
the law and the facts are against you, argue the Bill
of Rights. So my voir dires always begin with the constitutional
Ground Rules. If you don't know them, you should: a defendant
is innocent till proven guilty, the burden of proof is on the
prosecution, the standard of that proof is beyond a reasonable
doubt, and the defendant has the right to remain silent ... the
basics that define America as a legal concept. My motive for
doing this is not only to emphasize how strongly the rules favor
the defendant, but to dress up said idea in red, white &
blue bunting. Proclaim loudly enough how such concepts are fundamental
to America and the idea might get across: A Not Guilty
verdict is patriotic!
Juries usually listen politely to my tirade,
nodding in faux agreement -- then forget all about it.
Not this time. The very first jury panel, consisting of six men,
had the usual retired aviators and GIs -- this area oozes with
them -- but also a couple of guys with very interesting attributes.
One was a civics teacher, who might, I figured, argue for the
Ground Rules -- and my imbecilic client -- during deliberations.
The other was a graduate student in Philosophy. I loved
this guy. Without prompting, he started blathering about the
Nature of Truth, citing Hegel and Nietzsche and Kierkegaard and
suchlike, betraying the most delightful confusion about their
work. Behold! A mind as fuzzy as a tennis ball! The perfect defense
To my astonishment, these guys were seated
as jurors. The D.A. didn't even question them. Why, I'll never
know. My guess was that he simply wasn't paying attention --
that he regarded the case as just too easy. You could read his
smugness in his attitude. He couldn't imagine losing.
I couldn't imagine winning, but I
kept at it. Considering that Doofus was charged with Battery
on a Police Officer, it was no surprise that I eliminated the
one cop who was called to the panel -- but I used our conversation
to my advantage. A 15-year veteran, this fella had intelligence,
was honest, was horrified when I mentioned the two New Orleans
cops on Death Row, and professed absolute fidelity to the Ground
Rules. A man of character and a good policeman. When he stepped
down, safely off the jury, I made a point of shaking his hand.
He embodied the point I wanted to make.
There are good cops and bad, worthy cases and unworthy. Wasn't
the real question not whether the defendant had slugged a cop
(or prison guard), but whether he had been at fault?
got our jury. That was it for the first day. The next day we
tried the case.
Better I should say, the next morning
we tried the case, because testimony didn't go much past 11:30.
The state brought to the stand Waldo, the second guard who had
been punched in the melee, and a third man who had taken Doofus
away. It went quickly.
Waldo was a short, stocky guy, a no-nonsense
type, who related the story you see above. In cross-examining
him, I was polite; juries, especially in Red State America, respect
cops and don't like to hear them harassed. Nevertheless, I tried
to be firm in making the point that in their fight, Doofus had
not struck the first blow. Waldo had, with his Mace. I
also underscored, again with as much subtlety as I could manage,
the distinction between a street officer -- like the potential
juror -- and a guy who'd spent his entire career as a guard in
When my turn came to put on our case, I
crossed my fingers and put Doofus on the stand. Usually this
is suicidal. Clients are often inarticulate and dumb as dirt;
the District Attorney can confuse and rile up such defendants
and ruin a perfectly winnable case. But to my astonishment, Doofus
kept his temper. The D.A. barely questioned him. Why bother?
He couldn't lose!
Out went the jury at 11:45AM. The trial
had lasted just over two hours. Three hours later, back
came the jury with a verdict.
Count one -- simple battery. Count
two -- not guilty.
Doofus just sat there, amazed. Instead of
two felony convictions and decades in the walls, he'd gotten
a misdemeanor carrying a sentence that would free him, that very
day. His whole view of himself was as someone in constant trouble.
Good news baffled him.
was riding down the elevator with the (very chastened) D.A. when
they took Doofus out. Already he was fighting with his guards.
The idiot couldn't even get out of the courthouse without making
trouble. To me, he offered nary a word. But I said something
to him. I said, "You're welcome!"
couple of weeks later I was seeing some clients in the Penal
Farm when the warden asked me to talk about the case. He was
bewildered by the verdict and felt that his department had been
embarrassed. How, he asked, did I win?
put the blame on the District Attorney. The kooky jury -- my
Philosophy major was foreman! -- was part of the story, but the
major reason we won was that the D.A. sleptwalked through the
case. He was so certain of victory that he forgot to fight. He
let me frame the question for the jury, so instead of
asking themselves, Has it been proven that Doofus hit Waldo?,
the jurors asked, Who started the fight? In short, the State
gave me control of the trial. Never let your opponent frame
the question for the jury. Never.
The warden nodded in understanding. As a
gesture of reconciliation, he gave me lunch -- the same meal
as the prisoners got. Two slices of Wonderbread, a smear of mayo
and two slabs of turkey baloney for a sandwich, with black-eyed
peas, mashed spuds with gravy, and cherry jello. Not bad! Stop