THE BALLAD OF THE BLIND VICTIM

A Poem by George R. (Bob) Dekle, Sr.

The victim came and took the stand
And then he lifted up his hand
And swore the truth he would recount
That he would give a full account
Of all the sins my client sinned
When he pretended to befriend
The victim at a local bar
And then got in the victim's car.
And struck the victim on his head
Then left him in the road for dead,
Relieved him of his worldly goods
And left him lying in the woods.

The prosecutor wiped a tear
And said “Dear victim, have no fear,
But in this courtroom look about.
If you see the robber, point him out.”
The victim looked both left and right
He searched the court with all his might.
He looked the jury up and down,
He scanned the courtroom round and round.
The court reporter felt his view,
He stared hard at His Honor, too.
He scanned my client, looked at me
And said, “I'm sorry I can't see
The man who struck me on my head
Then left me in the road for dead,
Relieved me of my worldly goods
And left me lying in the woods.”

The prosecutor did not linger,
But at my client jabbed his finger,
“Look at that man right over there,
Study his face, his eyes, his hair.
That's the man there, isn't he?”
The victim answered “Yes, I see,
But try as hard as ever I can,
I cannot say he is the man
Who struck me square upon my head
Then left me in the road for dead,
Relieved me of my worldly goods
And left me lying in the woods.”

The prosecutor, in frustration
Walked back over to his station,
“Your witness,” then he said to me,
And I could scarce suppress my glee
As on my hind legs I arose
And at the lectern took my pose.
“Dear witness, take a look about,
The entire courtroom please do scout.
Now tell me sir, if tell you can,
Do you see the evil man
Who struck you square upon your head
Then left you in the road for dead,
Relieved you of your worldly goods
And left you lying in the woods?”

“No, sir,” the victim said to me,
“That evil villain I can't see.”
His answer was like purest gold.
Its glitter made me very bold.
“Now look my client in the eye,
And tell me sir—and do not lie—if he's
the villain that we seek.
We want an answer, truly speak!”
The silence thundered all around
The victim did not make a sound.
Then slowly he looked up at me
And admitted, “Yes, I see,
But try as hard as ever I can,
I cannot say he is the man
Who struck me square upon my head
Then left me in the road for dead,
Relieved me of my worldly goods
And left me lying in the woods.”

His words were good as finest wine,
They were so pleasing and sublime.
“Sir, do you think a closer view
Would be of any help to you?”
The victim mopped his sweaty brow
And said “I really don't see how.”
I had the victim on the ropes!
I dare not dash my client's hopes!
I must drive home the point again,
So I intoned, as if in pain,
“Please step down from the witness stand
So you can view at closer hand
And tell us true for once and all
If he's the man, sir, what's your call?”
The victim looked as if in pain
And said “I'll try it once again,
But try as hard as ever I can,
I cannot say he is the man
Who struck me square upon my head
Then left me in the road for dead,
Relieved me of my worldly goods
And left me lying in the woods.”

'Twas then my heart began to race,
I said “Sir, get down in his face!
My client's fate hangs on the brink!
Tell us sir, what do you think?
Is he the man who held you up?”
The victim was a beaten pup.
But he did just as he was told.
And he walked weary, weak, and old
To stare my client face to face
And on his knees his hands did place.
His task was simple, all that he
Had to do was look and see
If my client struck his head
Then left him in the road for dead,
Relieved him of his worldly goods
And left him lying in the woods.

His eyes were squinted fast and hard
And then he said that fateful word
“Have ever I seen you before?”
And then the victim spoke no more.
My client looked him in the face
And once again my head did race.
(The Fifth Amendment guarantees
A right to silence if you please.
But some forget that precious right
And thereby add unto their plight).
My client said, in a dull roar,
“Yes, you've seen me once before.”
The victim nodded, satisfied
“This is the man I gave a ride,
The man who struck me on my head
Then left me in the road for dead,
Relieved me of my worldly goods
And left me lying in the woods!”

The experience a lawyer earns
And the lessons that he learns
Are sometimes bought at client's cost
And counted up in trials lost.
Sometimes your zeal needs mighty curbs,
And that's why lawyers have proverbs:
“On cross-exam, be circumspect,
Many a good cross is wrecked
By lawyers going overboard
After a good point is scored.
When once a fatal blow you score,
Ask not a single question more!”

FOOTNOTE: Despite this, Bob was able to get an acquittal.

ON CONFLICTS IN TESTIMONY AND CLIENT COOPERATION

Horace Rumpole, the fictional Old Bailey barrister, once said that he could win most of his cases if it weren’t for his clients. Some clients display a stubborn insistence upon ignoring your advice or otherwise undermining your efforts to help them. Sometimes, despite your best efforts on the part of your client, he will say or do something which undoes all your good work.

In a long ago drug trial, the testimony revealed that a confidential informant had purchased cocaine from the defendant under the surveillance of several law enforcement officers. Instead of immediately arresting the defendant, the officers allowed several weeks to go by before obtaining a warrant. Of course the defense was mistaken identity. The officers advanced the defense by being in hopeless conflict as to what the defendant was wearing. On cross-examination the defense attorney skillfully highlighted each conflict, hammering home the inconsistencies and causing the prosecutor himself to wonder about the credibility of the officers. One officer said the defendant was wearing a brown shirt. One said a green shirt. Another said the shirt was striped. One officer said the defendant was wearing tan pants. One said beige. Another said brown. One officer said the defendant was wearing brown shoes. Another said he was wearing sneakers. They could not agree on the description of a single item of the defendant’s clothing.

The prosecutor’s concern about the wide divergence in testimony deepened during final argument as the defense attorney eloquently argued the discrepancies, reminding the jurors that the judge would instruct them that “a reasonable doubt can arise from the evidence, the lack of evidence, or a conflict in the evidence.” The defense attorney had spun the conflicts into enough reasonable doubt for a dozen acquittals. As he sat listening to defense counsel, the prosecutor could see that the argument was connecting with the jury. They were leaning forward and listening intently. The prosecutor even saw one of the jurors nod as the defense attorney made a point. Unable to continue looking at the jury, the prosecutor allowed his eyes to wander about the courtroom. Before long, they fell on the defendant sitting alone at counsel table. The prosecutor did a double take and then studied the defendant intently. He was wearing a green and brown striped shirt. His pants were a color that could fairly be called beige, brown, or tan. The prosecutor looked down at the defendant's shoes; they were brown sneakers. The defendant was wearing the same clothing he had worn when he sold the drugs!

The prosecutor decided to work a comment or two on the defendant's dress into his rebuttal final argument. He would have to be circumspect in his remarks, however, because the clothing that the defendant wore to court was not in evidence. How might he comment on the defendant's courtroom attire without provoking a mistrial for commenting on facts not in evidence? The prosecutor decided to use the defendant's clothing as a non-evidentiary demonstrative aid. His closing remarks went something like this: "Ladies and gentlemen of the jury, my learned colleague has made much of the fact that one officer described the defendant’s shirt as brown, while another said it was green, and another said it was striped. He says this so-called conflict gives rise to a reasonable doubt about his client’s guilt. Could it be that the defendant on the night in question wore a green and brown striped shirt much like the green and brown striped shirt he is now wearing? Where is the conflict in testimony if that is the case? As for the conflict about brown shoes or sneakers, could the defendant have worn a pair of brown sneakers, much like the brown sneakers he wears today? Could .... " You get the picture. The jury did too. The prosecutor got his conviction without ever having to say, "Look, ladies and gentlemen of the jury, the defendant is either so arrogant or so stupid that he thinks we won't notice that he's wearing the same clothing he wore the night he sold the drugs." An excellent job of cross-examination and an eloquent final argument were set at naught by the client’s own actions. Perhaps defense counsel would be wise to add “dressing the client” to their pretrial checklist of things to do.