How Does Everyone Normally Do This?

The Defendant was an older man, in a slightly out of style suit, the kind that might be worn for church ten years ago.  He was barrel-waisted, at least 45 inches around, and wore a neatly trimmed mustache.  He scowled continually from behind his glasses, with one hand on his cheek, a single finger pointing up to his temple.  His attorney was at least 6’6″ tall, maybe 250 pounds of shoulders in a sport court and black slacks.  His blond hair was slicked back, and he appeared to be in his late twenties.

Defendant’s wife and victim did not wear church clothes to court when she testified against him.  She wore a t-shirt with shiny costume jewelry studs and simple black pants.  She had been sitting in the back of the gallery as the trial winded its way towards completion, with a skeptical look on her face, with her arms folded over her chest.

Defendant was accused of punching his wife several times in the face during the course of an argument.  He had returned home from playing golf to find out that his mother in law was going to be spending the foreseeable future in his house.  He was understandable upset.  He went to bed alone, his wife chose to sleep on the couch in the den.  Defendant woke up in the middle of the night and walked into the den in search of his wife.  He flipped on the light, had a tug of war over the blanket covering her on the couch, and began yelling.

Both the victim and the Defendant testified.  They gave different accounts of what happened next.  Defendant tried to hold the victim down on the couch.  The victim kicked the Defendant to the ground.  He got up, pinned her hands to her chest.  He struck her several times in the face.  She grabbed his testicles and squeezed them until they bled and he was forced to get off of her.

Defendant was charged with spousal abuse in violation of Penal Code section 273.5.  Defendant claimed self-defense.  He argued that he had to punch his wife in order to get her to stop injuring his testicles.

Defense counsel, despite his imposing appearance, was relatively docile during the trial.  For example, his cross-examination of the victim was only 20 questions or so, and lasted about 5 minutes.  He actually apologized to her afterwards and told her that his questioning was “not personal.”  He said that he hoped if he saw her “around town” that she would not hold anything against him, because he was just doing his job.  After the jury returned a guilty verdict, they told him that he seemed like he was “not there to fight.”  I thought that he was deliberately being a nice guy in order to make the Defendant seem less threatening.  I thought that he may have been worried that if he was a jerk they would be more likely to see the Defendant as a jerk, and thus one step closer to a batterer.  If this was his strategy, it fell flat.  After speaking to him, it seemed like this might have been his first trial.  He continually asked me how I “normally” did basic things, when it seemed like his real question was, “how does everyone normally do this?”  He asked me what the result of the preliminary hearing was, even though this was a misdemeanor that did not require a preliminary hearing.  And he didn’t ask the normal cross-examination questions that every defense attorney seems to in virtually every case, no matter what the charge.

I was lucky to have a cooperative victim.  And the victim’s daughter witnessed most of the violence.  She was extremely credible when she testified.  The responding officer came off exactly as you would expect: he didn’t remember anything and was extremely suspicious of defense questioning.  I also had 911 calls, from both the victim and the witness, but they were both much more calm than you would expect them to be given what had happened.  I had photographs of the victim’s injuries, but these were actually less than helpful, because the victim did not appear to be injured, despite the general agreement that she was punched repeatedly in the face.

Defense counsel, despite his inexperience, did make an interesting closing argument.  He argued that if the genders were reversed, and the man had done to the woman what the victim had done to the Defendant, “would we even be here?”  I saw a few jurors nodding along to this line of argument.

But as I said, they returned a guilty verdict.  And during the post-verdict interviews, I found out that the young lady who I though was one of my strongest jurors was actually one of the two initial holdouts.  Another great learning experience.

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