Ben and Me_ From Temperance to Humility - Cameron Gunn [29]
For a lawyer, Order is an imperative that is often ignored. Lawyers need to be prepared and to be organized. But the very nature of the work is dynamic, fluid, and volatile. Order and organization become like Cinderella, the forgotten stepchild waiting for the glass slipper. Prosecutors are the worst offenders against lawyerly Order for three reasons: Prosecutors participate in trials all the time, and thus, through experience (or weariness) they begin to rely on instinct rather than preparation; the volume of cases requires more flexibility of thought than organization of files; and most of the scheduled trials end in a guilty plea at the last minute, and prosecutors come to rely on this outcome (sometimes) to their detriment. Three strikes and you’re out at the Order ball game.
On Day 1, I went down swinging.
The whole thing started out rather well. It was a trial of a man accused of defrauding his employer, a political organization, out of a small (in the grand scheme of things) amount of money. The trial was to last the whole day, though I had anticipated being finished in less time. Part of my optimism was based on what I felt were impeccable preparations. I had interviewed the prosecution witnesses on two occasions (a rarity in such a small trial), organized my file completely, and served procedural notices well before the required dates. I was, in the prosecution world, almost overprepared. The Order gods had even taken notice of my efforts. My first witness was an old university professor of mine, indeed one of my favorite professors. My organization and effectiveness would undoubtedly, I reasoned, impress him and show him that I wasn’t the dolt that I suspect all my old professors believed me to be.
I called him as my initial witness. His evidence was not that significant. He was there as a setup guy for the big evidence to come later on—a straight man. Notwithstanding that, I had done a run-through of his evidence in my office (twice). Principally he was there to talk about the organizational structure of the association, explain how the office ran, and describe the responsibilities of the accused.
Things went very well—too well (if there were theme music, it would be taking on an ominous tone at this point—imagine the score from The Omen). As I concluded my questions, all that remained was to have him identify some checks he had endorsed in blank and that we alleged the accused then took to finance a wardrobe makeover rather than restock the supply closet. The checks themselves were really not in issue, and counsel for the accused had agreed that they be admitted into evidence. More as a final inquisitorial flourish than out of evidentiary necessity, I asked the witness to identify his signature on the checks. Remember the one-question rule from Sincerity? Never ask a question to which you do not know the answer. Remember my inner voice telling me to sit down and shut up? Where was Peter Lorre when I needed him?
I knew things were coming undone when the witness answered, “Yes, on check 412, that is my signature. Yes, on check 413, that is my signature.” However, he paused as he examined check 414. A long, uncomfortable pause. It occurred to me as he carefully examined the check that I had never actually asked him to look at them in our preparations. As each second passed, the knot in my stomach tightened.
Finally, the professor looked up and said, “Well, check 414 is signed in my name, but it’s not my signature. In fact, there are several checks here that appear to be forgeries.”
{ Employ thy time well, if thou meanest to gain leisure.}
The defense lawyer was on his feet screaming (okay, talking loudly) about undisclosed evidence (of course, he was afraid I was now alleging that the accused was also a check forger, when in truth I was just ill prepared . . . or stupid . . . or both), the judge was looking completely perplexed (this was not a check-forging trial), and the professor