Herding Witnesses

We argued motions in the morning on the day my second felony was supposed to begin.  I had two witnesses, both cops, subpoenaed to be in court at 10, to start out the case.  My civilian witness was taking a bus from 300 miles away, and wouldn’t arrive until the afternoon session.  But I had the two cops to fill the time while she traveled in.  When we finished arguing motions (all adverse rulings), the already angry judge turned to me and asked me who my first witness was.  The jury was waiting outside.  I turned around to and there was no one there.

For anyone who has ever had to herd witnesses, this is the nightmare.  There wasn’t a single other person in the courtroom, much less an officer.  I asked the court for a moment and looked down at my phone.  There were several texts.  The first officer said that he was sick and couldn’t come in at all today.  That’s bad, but not fatal, I would just have to scramble to put my evidence on another way.  I saw that there were other text messages; that must be the other cop telling me that he is waiting outside.  I’ll have to start with the other cop, but whatever, I can still make it work.  I check the other text message.  Sure enough, it’s the other officer.  My heart is racing already, no one likes surprises, but I’m feeling confident that I know what he’s going to say.  The judge is watching.  The Defense counsel and the Defendant are sitting silently next to me, probably wondering what the hell is going on.  I read the message: the other officer is on an arrest and can’t come in.  My stomach drops.

We approach, I tell the judge the situation.  Not in a calm or collected way.  Like a person vomiting information in chunks with a going film of apology and self-justification.  The judge, who was already mad, becomes incensed.  He says, “Ok.  You’re unable to proceed.  I’m going to dismiss the case.”  That would be extremely bad for the case: the defendant would be let go without me putting on a shred of evidence.  And the Defendant has a horrible record.  Moreover, I would have to explain why my scheduling problems robbed the People of California of their right to a trial.  And I’m new!  It’s not like I have a record of smooth success behind me.

I can sense the judge wants to protect the time of the jury, who have jobs and lives of their own, afterall.  I ask him if we can open, and tell him the cops will arrive while we are opening.  He tells me to call the cops and make sure that they can be there.  I do.  I call them on the record, with the judge sitting there watching and listening, with a horrible look of pain and worry on my face.  The second officer, who was in the middle of the arrest, picks up.  I tell him to stop what he is doing and come to court right now.  He agrees.  I tell the judge, and he brings in the jury.

The judge asks defense counsel if she is going to open.  She’s not an idiot.  She says, “I’m going to waive opening statement.”

I normally spend about five minutes on my opening statement.  In this case, a robbery, five minutes would be a stretch.  I just don’t have that much to talk about.  “He came in, he used force and fear, you find him guilty.”  But based on where the officer is coming from, I know that I need about 25 minutes, plus parking and elevator time.  So I start my opening.  And I’m dragging out it.  I’m literally going through every fact I intend to elicit.  I’m holding up picture after picture, saying things like, “here’s another exhibit I will introduce.”

I get to the end of everything and the officer is still not here.  I sit down, defeated.  Then defense counsel, miraculously, changes her mind and decides to give an opening.  Deliverance!  It takes about 7 minutes, as I’m frantically watching the door and bouncing my knee like a recovering drug addict.  And then, somehow, she’s done and the cop is still not there.

The judge turns to me and says, “call your first witness.”  I have nothing.  But an idea forms in my mind.  The jury is watching.  I say, “your honor, can I have a 15 minute bathroom break?”  I know what he’s thinking.  He wants to appear reasonable in front of the jury.  He says, “ten minutes.”  The cop arrived on minute seven.

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