It was 11.13am. We had 19 days to trial. Barnaby Jones sat across the conference table in my office, and he was indignant.
“Mr. Leo, it wasn’t me! I swear They got the wrong guy!”
We’d been talking about this case for the last half-hour or so, and he was still giving me the same story. Every defense lawyer has heard it a million times. “It wasn’t me!” In defense circles we call this the SODDI defense — “some other dude did it” (it even has a Wikipedia entry). Mr Jones wasn’t the first client to give me this line nor would he be the last. Naturally, I was skeptical, especially in light of the Commonwealth’s discovery I’d reviewed since ADA Shea sent it to me yesterday.
“I understand what you’re saying, Mr. Jones, but you’ve reviewed that discovery I gave you, right? We have some big problems here. First, the police sat on your block for four days. They say they were 25 feet away, using binoculars, and saw you sell drugs on four separate occasions to a confidential informant. Additionally, they say that each time the confidential informant came back to them with crack cocaine they saw you sell to him. That’s bad. You get that, right?”
“Yes, Mr. Leo, I get it.” My client nodded.
“Then, to make it worse, the police got a warrant and raided the house where they said they saw you. In that house, they found over sixty grams of crack cocaine, 50 jars of PCP, and over one hundred grams of weed. They also found a picture of you and two other guys, which they bagged as evidence. That’s worse. You get that, right? They are putting you in that house!”
“They’re wrong though! I wasn’t selling drugs that day, Mr. Leo. I was USING drugs! The guy they saw wasn’t me. And I am not the guy in that picture!”
I looked across the table at my client, in silence, for a minute. He wasn’t getting it. I took off my glasses, folded them, and placed them to my right. I signed deeply and rubbed my face with my hands in frustration. “This guy”, I thought to myself, “straight up case of denial”.
A defense lawyer generally encounters three types of clients.
First, there are those clients who did whatever they’re accused of and will admit it to their lawyer, straight up. These are easy clients to deal with. You both know what you’re getting into and there’s a mutual respect between you. These clients usually trust you and you know that you will do anything in your power to help them.
The second type is those clients who face overwhelming evidence of their guilt—maybe there’s a video of them doing exactly what they’re accused of, or prison tapes where they admit to doing what they’re accused of—yet still deny it up and down. These are often those clients facing the most serious types of charges, like sex crimes, shootings or what have you. I’m not sure whether they can’t come to terms with what they did, or they simply think they can hoodwink the lawyer into believing a story that makes no sense. Maybe they’ll eventually come around as they watch the jury panel be sworn. Maybe they simply can’t fact the fact that they did something as heinous as what they’re accused of. Or maybe they think that through their wits and guile they can—even in the face of direct evidence of guilt—convince their lawyer, and therefore the jury, of their innocence. These clients are also usually easy to deal with, because they almost always insist on a trial, and they leave the lawyer to do whatever he can to put the Commonwealth to its proof and make them show every element of its case beyond a reasonable doubt.
The third client is the client you think is actually innocent. This is the worst kind of client—because you know how many innocent people are sitting behind bars.
After thinking a minute with my head in my hands, I looked back up at Mr Jones. “Ok, Barnaby, so run through the story of what happened the day you got arrested, again.”
“Well, Mr Leo, like I said there are two guys that I buy drugs from—one of them looks a lot like me. But like three days before they arrested me in this case, they guy who looks like me got sent upstate for a possession with intent case, you hear me? ”
I was skeptical, and I was probably wearing my skepticism on my face. I never was good at poker.
My client continued. “So like that day, I was sitting on the steps down the block from the drug house waiting for the other guy who wasn’t sent upstate—we call him Shank— to start selling. All outta nowhere, like six police cars pull up at hit Shank’s house. I start to walk away because I want nothing to do with that. Two cops rush up on me outta no where, cuff me, and threw me in the back of the paddy wagon. I didn’t have no drugs on me or nothing! Once they hit the house, the brought out Shank and they put him in the back with me. But like when the police hit the house, they took that picture out of the house—you know that picture the police say is me? It’s not me! It’s that guy that went upstate! He don’t even look like me, you know! You know what they say, Mr Leo, it was white cops who hit the house.” Mr Jones hesitated for a moment, looked left and right nervously, and then proceeded with “and you know…we all look the same to you white people!”
I burst out laughing and so did he, which calmed the tensions a bit. And this new photo angle had me intrigued.
“Alright, Mr Jones. the District Attorney didn’t give me a copy of that photo in discovery, but I think we know that we need to get it now. In the meantime, I’m going to be sending my investigator out to talk with you and some other folks on the block. You got Shank’s number?”‘
“Give it to me.” Mr Jones rattled it off. I wasn’t giving my investigator a lot of time, but if anyone could find and talk with Shank in two weeks, he could.
“By the way, Mr Jones, who’s the guy that got sent upstate?”
“…well, I think his name is Dre. I’m not sure of his last name—maybe Johnson?” I wrote it down on my yellow pad.
We wrapped things up a few minutes later. I stood up, thanked Mr Jones for coming in, and walked him out of the office. After shutting and locking the door, I went back to my conference table, opened my laptop, and began writing.To: ADA Tracy Shea Subject: Commonwealth v. Jones —Discovery Request under Pa.R.Crim.P 573 Dear Ms Shea:
Upon review of the initial discovery in this case, I noted that on property receipt 1399115 the police indicate that they recovered a photograph of my client and two other males from the property when they served a search warrant. I did not receive a copy of this photo in the discovery you provided to me. Please provide me with a copy at least 10 days before trial. Very Truly Yours, Leo M. Mulvihill, Jr.
I hit send and then dialed my investigator, Malcolm Bruce. It rang twice before a gruff voice answered: “Bruce Investigations”.
“Malcolm, it’s Leo. I got a new case for you, and I need it done quick—we got trial in just over two weeks. Can you handle it?”
“I live to serve, Leo. Let me know what you need…” I explained the situation to him, and the need to find both Shank and Dre. “Well, never a dull moment with you, eh? We have our work cut out for us”, he chuckled as he hung up.
“We certainly do have our work cut out for us” I said to myself as I started to look over the discovery again.
If what Mr Jones was saying was true, and the police got the wrong guy, I wasn’t going to be getting a lot of sleep for the next few weeks.