Trial Department

I should mention there is no schedule for my blogging, but as the mood hits me. So, I may write three or four days a week and at times only weekly or less.  So if you are reading this stuff, just check in periodically to see if there are any updates from your last reading. Also this blog is meant for two types of readers: one, for those untrained in the law, but are curious how it works, and for lawyers who are interested in trial work in the criminal law field who may gain some ideas that fit their method of trial practice. Lord knows, I learned from a lot of other lawyers some great ideas that I incorporated into my style, and in law one is always learning.  Also, a lot of personal experiences outside of the law but just to give the reader an understanding of what made me develop as a trial lawyer If anyone wants to contribute , ask questions or share ideas, please do.

With the above said, after three years I am where I want to be – felony trial Court. At this time I am living on Reeves Drive in a nice apartment complex in Beverly Hills, married and things are good.

The LADA’s Office knew what it was doing. Young DAs just don’t pick up a file go into court, start picking a jury and proceed to trial. Remember, the old timers were well-educated Depression babies who had been on the job for 20 years or more. Felonies were serious business and the new guy starts just observing for a while, then moves into taking pleas in such a way the possibility of withdrawing the plea of guilty was next to impossible after the defendant is sworn in and goes through a series of questions of free and voluntary, no force or violence asserted, not pleading to help someone else, and pleading because he/she is guilty for no other reason. Then the new guy gets to put on a court trial without a jury or a submission of the case on the transcript of the preliminary hearing . Then finally the new guy is given a minor type of felony to prosecute, so if there is a not-guilty verdict, society won’t have a dangerous violent criminal walking the streets because of some foul up by a green prosecutor. In other words, there is a substantial training process.

Finally I get my first felony trial. It’s an armed robbery case against two defendants. I was sent out to one of the courts on the 8th floor, the felony court floor to the Honorable Judge Clement Nye, who was affectionately referred to by defense lawyers as “Clemency Denied.” He had this huge courtroom where he had all the windows covered by purple drapes which gave the whole courtroom an extremely somber look. The lights that were used were very dim mostly around the Judge’ Bench and the  witness stand and the jury box. I could hardly see the material in the file and over a period, developed a blistering headache. The case itself was pretty simple, a few eyewitnesses, the defendants took the stand saying it wasn’t them, I impeached them both by sandbagging them with their taped confessions and after a short argument by the attorneys and me out came the jury with guilty verdicts for both.

I was warned: Judge Nye wants speed, so I gave him what he wanted.

But, you want to know what a speedy trial is, well, after the verdict, both defendants asked for a probation hearing, which meant referring the matter to the Probation Department for a report and a sentencing hearing about three weeks from the date of referral. So the judge looked at the two defendants and asked them if they really wanted to do “Dead Time” (those days, people did not get the credits for pretrial custody  like they do these days) both said no, waived the hearing and asked for the sentence, which they got, 5 to life in State Prison for both of them. All of this was done before lunch on the day the trial was first started.  The bottom line was known to chew up young DAs, but we got along quite well and believe me he tested me to see what I was made of.

I mentioned in the beginning of this blog that I learned from others, not their style which I will go over later, but just general knowledge.

The DAs and Public Defenders and defense attorneys and Court-appointed attorneys were not enemies, but each respected each other as professionals. Today, I find DA’s Offices have become extremely political and Public Defenders and young criminal lawyers have an antipathy toward each other, and rather than the mutual respect I so much enjoyed as a prosecutor and defense attorney, that respect has been seriously eroded to the detriment of both sides. The mutual trust and honorable value of one’s word has been somewhat eroded in the modern-day justice system, and I do miss the old days. An example I will never forget was after the evidence was presented in a minor felony case and while sweating out the verdict with the defense attorney, Deputy Public Defender, Richard Erskin, an old-timer and a really good attorney, I was complaining about the amount of time it was taking the jury to reach a verdict and how stupid the jury panel was. Erskin said to me “Marshall, if you have a negative attitude towards jurors, the jury will sense that belief and it will always work against you. The jurors will be able to sense your attitude towards them, and it can come back to bite you one day.” Boy, did that make a lot of sense. From that day on until my last jury trial, I always write at the top of my yellow pad: “Be nice. Be conversational. Treat the jurors as your friends.” I write other things we will discuss as this goes on. Always learning.

Enough for today. Got a lot of more stuff, such as what other good ideas were given to me by others, but also don’t try to be someone else or develop someone else’s style. We haven’t come close to all my thoughts, including great defense experiences.