Crime, Trials

Criminally Yours: Your First Trial (Part I)

Doing trial work is like learning to ride a bike. You have no idea what it feels like to be balanced, until you ride long enough.

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No matter how many trials you’ve done, the first one always stands out. Years might pass, a million other things intervene, but that first trial, the first time someone trusts you to stand between them and jail, is a test of nerves so complete, I’ve known first-timers to faint dead away at voir dire alone.

That’s why it’s good to have your first one be a dead loser. The pressure’s off since expectations are low. Even Clarence Darrow wouldn’t win it.

My first trial client, Trevor Jones (name changed), was what’s known as an “E-pred.” (The felony crime he was accused of was category “E”, (Murder is A, Grand Larceny is E) and Trevor, because he had picked someone else’s pocket within the prior 10 years, was a “predicate” felon.)

Almost every defendant who’s an E-pred rolls the dice on going to trial rather than pleading guilty. The difference in punishment is miniscule to most. Two to four, mandatory if you blow trial; 1 ½ to 3 if you plead.

I liked Trevor. He was a low-key pickpocket who hung out in Times Square fleecing tourists so much, the cops knew him by name.

Not only had six cops seen him take the Polish tourist’s wallet (my case), but he was arrested two blocks away still running, wallet in hand.

Adding fuel to the fire, I was in front of one of the toughest judges in the courthouse. Not only would he sustain every prosecutor’s objection, but he would object on his own, sua sponte, then sustain his own objections. I couldn’t even finish a voir dire question before he’d object and tell me to move on.

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I was reduced to a blubbering idiot. “And what’s your favorite television show?” I’d ask.

“Sustained. Move on.”

I did the usual defense attorney’s “non-opening” opening. That’s where you have no defense, so you just remind the jury about the burden of proof, keeping an open mind, and listening critically. Openings 101.

Then each of six of New York’s Finest began testifying, one after the other saying how they were posted in Times Square exactly to look for people like Mr. Jones, and take them down before they got away with the goods.

So what was our defense?

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As the saying goes, when you’ve got lemons you make lemonade. My defense: the cops must be lying. How else could their testimony be so consistent? How could they each have possibly seen the same thing at the exact same moment and now be retelling it in the exact same way?

Trevor sat patiently to my right as I cross-examined each cop. Painful. My supervisor, a brilliant but neurotic guy sitting to my left, tugged at my sleeve, “That’s not how you ask a question.” “Sit down you’ve done enough damage.” “Object. Now!” “You’re pissing off the judge.”

Doing trial work is like learning to ride a bike. You have no idea what it feels like to be balanced, until you ride long enough.

The judge took particular pleasure in torturing me. He, too, knew it was my first trial. When I told the jury in summation, they should do “what was just,” he interrupted. “Ms. Messina, you know full well ‘justice’ has nothing do with this.”

Was I in control? No way. Did I know what I was doing? Only in theory, but practice is far different.

So how do you get ready for that first trial?

My theory: every trial attorney is an adrenaline junky. We’re a self-selecting subset of lawyers. You’ve got to feel comfortable in front to of a crowd, think on your feet, and adapt to ever changing scenarios.

So first — like the spotlight.

Sometimes you have to deal with clients who are complete nuisances. They undermine your concentration more than anything that’s happening in court. Get someone, whether a supervisor or a paralegal, to second-seat you so they can absorb that flack. Your client can talk (softly) as much as he likes during trial as long as it’s not to you.

Finally, be ready to look like a complete incompetent. The trial-virgin barrier has got to be breached one way or the other. You’re never going to be as good on the first time as you are on the 20th.

Toni Messina has been practicing criminal defense law since 1990, although during law school she spent one summer as an intern in a large Boston law firm and realized quickly it wasn’t for her. Prior to attending law school, she worked as a journalist from Rome, Italy, reporting stories of international interest for CBS News and NPR. She keeps sane by balancing her law practice with a family of three children, playing in a BossaNova band and dancing flamenco. She can be reached at tonimessinalw@gmail.com or tonimessinalaw.com.

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