I heard again yesterday the old story about Oliver Wendell Holmes’ reminder to his law clerk, who questioned whether a decision was "just" or not. Holmes is reported to have told the clerk, "we’re not in the justice business; we’re in the law business." Indeed we are. There are unjust results that flow from our system, and you may judge yesterdays decision as unjust. The system worked fine – and the jury did it’s job. Their decision is simply that, their decision. Just or unjust, each side had their day in court and now we all move on.
While the country debates the jury verdict in the Casey Anthony trial, I thought it might be good to take a minute to consider how any criminal case can be destroyed by the DEFENDANT – not the lawyer – who thinks he or she can talk their way out of trouble. Consider the following three things you can do to destroy your criminal case, some of which are illustrated by the Anthony case.
First – lie to the police or investigators. Why can’t defendants simply not talk to the police? Every 5 year-old in this country has heard that he or she "has the right to remain silent," but nobody ever does. Instead of simply refusing to answer questions, most defendants tell the investigators some story that they think will get them out of trouble, but rather, sinks their ship. If you tell lies to the police, then expect the prosecutor to reveal you as a liar. Silence is better than lying and even telling the truth to the police without first talking to a lawyer is dangerous. Remember that Casey Anthony’s lawyer had to admit in opening statements that she was a liar. That is not the way you want any case to start.
Second – tell the lies to your friends and family. Investigators and police call your friends and family members "witnesses." What you tell them will almost certainly be used at trial to impeach you – that is a nice way of saying that your lies to your friends will also be used to reveal you as a liar. Again – the truth may set you free but those little lies to friends can convict you. Don’t be tempted to tell friends and family about your situation, just sit tight and let time take its course. You don’t need your brother’s best friend’s former girl friend to show up at trial and testify that you told her a different story than the one you told the jury!
Third – insist on taking the stand at trial. Smart clients listen to their lawyers. Some clients never listen and insist on doing it their way (mostly these are lawyer-clients, or clients who think they know more than their lawyer). The Defendant in a criminal trial always has the right to take the stand and frequently I advise my clients to do so. The jury trial is all about the story of the case. Usually the Defendant will have to tell the story, but not always. Many cases are won by lawyers who are brave enough to keep their clients off the stand. It depends on the case, and the defense offered. And it depends on the ability of the defendant to stay out of trouble on cross-examination. My point is this – listen to the lawyer who is trying your case. No matter what those talking heads and vigilante former prosecutor turned millionaire TV talk show hostess insist – the person who knows you and the case is YOUR lawyer.
Getting ready for trial? Think you may have blown it by talking to the police or lying to a friend? You may have, but that verdict in the Anthony trial reminds us that juries usually take the instructions to heart and insist that the prosecutor prove its case beyond a reasonable doubt. Trust your lawyer and the jury and play it smart.