Monday, April 03, 2006


I recognized the name “Darias Johnston” when I pulled the five new client files down from my mailbox. I had represented Darias on a previous driving during suspension charge and I knew him as a trustworthy, fiftyish African-American gentleman who worked as a freelance mechanic in North Omaha. I ordered the police reports, noticing that Darias was charged with assault, disorderly conduct, and discharging a gun within the city limits. That didn’t sound like the Darias I knew from before, but put the file aside until I got the police reports about ten days later.
The reports looked bad, as they almost always did. Several witnesses had heard and seen Darias shoot a gun at an eighteen-year old boy as the boy ran from Darias’ house. The report stated that a witness told the police that Darias was mad about the boy dating his daughter.
I met with Darias about a week after I received the police reports and he told a different story. He came home to the house he shared with his girlfriend and her three kids at about 7:00 at night. His girlfriend was at the hairdressers, but he could hear the music coming from one of the kids’ bedrooms. It was loud enough that they could not hear his knock, so he opened the door to tell them to turn the music down. When he opened the door he saw his girlfriends’ three teenage kids, their cousin Antoine and a couple kids from the neighborhood. He also smelled marijuana, as he had several times in the past when Antoine was around.
Darias yelled at the unknown kid who was playing with the stereo. When that kid finally turned the music down, Darias asked who was smoking pot, but nobody owned up to it. Darias asked Antoine if he was the one, and Antoine “got smart with him.” I asked Darias what he meant by this and he explained that the boy called him “a female dog” and told Darias he could “whoop his ass.” Darias told him to leave (not in those exact words, I’m sure) and followed him down the stairs, telling him “get on out the door” and not to come back.
On his way out, Antoine grabbed a ceramic vase off the kitchen table and threw it at Darias’ head. Darias ducked, the vase shattered against the wall, and Antoine ran outside, slamming the front door behind him. Darias followed him out, yelling at him not to come back.
According to Darias, he picked up a snow shovel that was laying on the front porch, held it up and told Antoine not to come back around. Darias said that the loud bang described by the witnesses was the heavy iron door being slammed.
The police picked Darias up about fifteen minutes after they were called as Darias was driving away from the house in his pickup truck. The truck was searched, and Darias was arrested, but no guns or snow shovels were found.
It is difficult to know who to believe in a situation like this. Darias told me there was no gun and he struck me as someone who had lived honestly and whose face and eyes told the truth. But I also knew that Darias was a survivor who had been educated far from the insulated suburbs. To him, I was probably just another white man in a tie who grew up far from his home and who worked for the County- the same County that ran the jail and the courts. I couldn’t blame Darias if he chose to test out the snow shovel story on me to see whether the judge- who would probably be another white man or a carefully-chosen person of color- would believe it.
I gave Darias my usual speech about how I could get in trouble for disclosing anything that he told me about the case and how it was important that we get everything out on the table now, so we didn’t have any surprises at trial. “I give you advice based on what you tell me. So if you don’t tell me everything or tell me something that’s not true, my advice is going to be bad. I have to know about all the details so I can be ready for trial. If there are bad things that are going to come out at trial, I need to know about them now so I can be prepared for them.” I told him, without mentioning names, about the client who ended up in jail because he told me the truth in the middle of a trial, when it was too late to change his fate and too late to deal with what the witnesses had to say. “That man went to jail over a case that could have ended with a small fine,” I told Darias, hoping that he would not want to end up like this guy and would tell me what he knew so hat I could tell him how best to deal with it.
But Darias stuck to his guns, or to his snow shovel. When I asked him how the witnesses could have heard a gunshot, he said, in a way that made me believe him and want to help him: “I can’t speak for them other folks. All I know is that I don’t own no guns and I didn’t have no gun that night.” Darias was a mechanic, and he struck me as the kind of man you’d want to work on your car. He couldn’t read or write but he was smart enough not to speculate on what somebody else would say or why they would say it. He didn’t waste his breath trying to convince me that they were lying and he wasn’t. He either told me the truth or didn’t trust me with it. He wanted a trial and wanted to put his word against theirs that no gun was drawn or shot that night.
It was Darias’ life and not mine that would be affected by the trial, one way or the other. I believed him, or rather believed in him, and would help him tell his story about the snow shovel. I didn’t’ suspect that he was lying and he didn’t give me any indication that he was. It was my job to advise him about how to proceed in his case. If he was comfortable going to trial when the police report and the witness list showed several people who told the police they saw him with a gun, then so was I.
Reading this, in the safety of a book, it probably sounds as if Darias had a gun and now wants to lie about it in court. It probably also sounds like I was willing to help him commit this “second sin” in the courtroom. After all, three people in the police report allegedly told the police they saw Darias with a gun. How could three people be mistaken, you might be asking, and how could I think of taking Darias’s case to trial when three eyewitnesses would have to be painted as mistaken or lying in order to win?
The answer to these questions is that life is different in the part of town where most of my clients came from. In the suburbs, it’s easy (and overly tempting for most people) to assume that the police rarely lie and that three eyewitnesses couldn’t all be mistaken. But I had seen enough of a courtroom to know that a cop writing about three eyewitnesses and a prosecutor producing them at trial were two very different things. I knew that often police reports are written not as an investigation of what happened but as preparation for convicting someone, as if the real trial took place on the street and the courtroom was just a rubber stamp process. Some of the police that I dealt with would put their own spin on what a witness said based on who they were trying to convict. I was familiar with at least a few officers who believed so strongly in the “truth” of a suspect’s guilt that they weren’t afraid to lie to get a conviction.
I also knew that witnesses- especially in Darias’s neighborhood- couldn’t always be counted on to tell the police the whole truth and nothing but. Some people would have an “ax to grind” and would say anything to protect a family member, a friend or someone who could later give them something they wanted. Good cross examination could bring this bias to light in court. Only a few judges I appeared in front of seemed to care about how bias often brings lies into court, so I was hoping Darias drew one of these judges for his trial.
Just as witnesses couldn’t always be counted on to speak the truth to the police, they often didn’t ever make it to court to speak to the judge. Some people would say whatever the police wanted to hear and then never appear in court, perhaps being cooperative with the police as possible to avoid a possible arrest or check for warrants themselves. Prosecutors tended to view not showing up in court as fear of revenge by the accused, but I thought there were often other explanations behind this. Sometimes people didn’t care about a case, weren’t intimidated by a subpoena, or didn’t want to take time off of work. Sometimes it was group loyalty, as if a person from Darias’s neighborhood coming to the courthouse to help the police put a neighbor in jail was only necessary when people got shot and not when they just got shot at. Whatever the reason, witnesses, especially in relatively low level cases like Darias’s, often stayed away from the courtroom. This made me want to see who showed up before I gave up on Darias’s case based on what the officer wrote down.
Darias wanted a trial, it was his right, and I told him that having one was a good idea, as long as he would help me, and himself, by making sure we could get witnesses at trial so we could counterattack, and hopefully counterattack, the state’s case against him. I also knew that this was a good case to take to trial because, even if Darias was lying about picking up a shovel, I knew that we went to trial, we could show the judge what came before the alleged gunshot / snow shovel climax. If Darias simply pleaded guilty to any of the charges, he would not get as good of a chance to explain why he finally snapped and picked up the snow shovel (or the gun.) I also knew that Darias would be a good witness. He had a job despite not being able to read and would appear honest to the judge. Besides that, Darias assured me that one of the witnesses had seen Antoine throw the vase, had heard him swearing, and had heard him talking about getting high that night. Another witness listed on the police report, Darias told me, was a neighborhood kid who would say anything for Antoine- his older, role model friend. Darias didn’t think this boy had even been at the house that night, at least not until after the police arrived.
About a week before trial, I finally caught Darias’s “star witness” Lakeisha at home. She was Darias’s girlfriend’s daughter and had seen the whole incident. My eyes lit up when she told me that she heard Antoine talking about getting high that night, that his eyes were red and bloodshot, and that she’d seen him throw the vase at Darias’s head. She even described Antoine as trying to fight with Darias and told how it was Antoine, not Darias, who was the aggressor that night. She sounded confident about what she had seen and heard and, at this point, I thought of her as a great witness who could help me win Darias’s case outright.
But good witnesses often cut both ways. The more I spoke with her, the deeper she cut into Darias’s case. Lakeisha was confident that Antoine provoked Darias, but also confidently told me that she saw Darias go to his truck when he got outside and that she heard a loud bang right after this. She didn’t see him with a gun, had never known him to own a gun, but somehow a loud bang had come from the general direction of his truck. This caused Antoine, who was by then standing in the street yelling at Darias, to run away for good. Lakeisha would be a good witness initially, but on cross examination, even a mediocre prosecutor could make his case with her words. She cut both ways, in other words, and would help us show that Darias had a reason to be mad but would also help the prosecutors show what Darias most likely did when he got mad that night. I decided to send her a subpoena and then let Darias decide, on his trial date, whether he wanted to risk calling her as a witness.
I understood Darias’ snow shovel story at this point, even though I didn’t believe it anymore and knew the judge wouldn’t either. Even though I was his lawyer, Darias probably saw me as another white man who lived in the suburbs and never knew what it was like to live in his neighborhood. He probably thought that if he told the truth, no judge or lawyer would understand and that these people would only send him to jail. He had his story and he was going to stick to it.
It occurred to me that Darias had probably simply had enough, had gone to his truck and had shot the gun in the air to show this kid that he also had a breaking point. I wished Darias would have called the police that night, before he lost his temper, but I’d never even been to Darias’s neighborhood, even in daylight. If he had called the police, I would have been defending Antoine on a charge of disorderly conduct or destruction of property. The thought of Antoine go to jail seemed to be a more just outcome, but I probably wouldn’t have seen it this way if it was Antoine sitting across from me.
I didn’t have time to think about what ifs. Darias was looking at up to eighteen months in jail if the trial didn’t go well. He was also one of those clients who made you proud to be a public defender because he couldn’t afford to hire a private attorney to tell his side of the story. Darias’ story needed to be told well because the prosecution, with the power of the police on its side, would be labeling this eighteen year old, vase-throwing, pot-smoking punk as a helpless victim being chased by my gunwielding client. I knew Darias was no angel, but he was also not the black-hatted villain the state would melodramatically describe him as. There was culpability or guilt on both Antoine and Darias’ part in this case, but Antoine hadn’t pulled out a gun and had won the race to call 911. What Antoine wanted to do with the vase that night was what he would be trying to do to Darias in court: knock the old man out of the picture so he could get high and get to the old man’s daughter. I was not going to let that happen to Darias, at least not without a fight.
Trial was held on a Monday. The judge, growing impatient with a long day in court, called out “State v. Darias Johnston” and all ten or so of us walked up to the bench. The witnesses were “sequestered,” or sent out into the hall to keep them from hearing each others’ testimony. That left only the lawyers, the testifying witness, Darias, and a few spectators standing before the judge.
The first witness was Antoine. He was about my height and looked older than his eighteen years. When he talked, though, he seemed not as tough as his expression tried to be, and he seemed a little humbled by the courtroom and its formality. He told of boldly defending himself against this crazed old man, as the prosecutor asked him questions. He admitted to throwing the vase, but insisted that it was in self defense after Darias had pushed him down. He also told of Darias pointing a rifle at him as he stood in the street. I knew this image would be a hard one to get out of the judge’s head, even if we could show what led up to this.
My first question for Antoine was, “you were smoking a little marijuana that night, weren’t you?” He tried to act shocked, and denied it, as if he was not the type to smoke pot. However, his expression, if it could have spoken, seemed to be saying “damn, why’d he ask about that?” I asked this question first because I wanted to start off on a strong note, wanted him to know I wasn’t going to allow him to lie, and wanted to see if he would show the judge the temper Darias told me about. It didn’t work as well as I had planned because Antoine regained his cool and hung onto it throughout the questioning. He didn’t come across as totally truthful, especially about the marijuana and the vase, but also didn’t show himself to be a hothead who fought against all authority. After Antoine testified, the State had started to show both what I was afraid of and what I wanted the judge to see: the prosecution made it look like Darias grabbed a gun but also that he probably had a good reason for grabbing it.
The next witness for the state was the fifteen-year-old boy who would say anything for Antoine. Lakeisha told me that he had been there that night but that he hadn’t been close to the house when the gun supposedly went off. He was only fifteen, but he had a marijuana conviction on his record. I couldn’t introduce this conviction, but I could impeach him with it if he denied ever smoking marijuana. He told me that he and Antoine were not smoking marijuana that night, but admitted that he had in the past. He also said he saw a black object that looked like a rifle in Darias’s hands as he stood in the street. The kid also told of hearing a loud “bang” before he ran. I knew things were not going well for us, but also knew that it was not even “halftime” yet, and that there were many more stories to be told.
The police officer was next and was the last witness for the state. He hadn’t seen much that night and his report was based on what Antoine and others told him. I did not attack him, but only tried to show that he was unable to find a gun in a search of Darias’s car, house and yard. Still, I knew the judge wouldn’t have to hear about a gun being found to believe the witnesses who saw and heard it. The state rested and I was thankful that for once I did not have had to attack the police officer, as this sometimes came across as armchair quarterbacking a uniformed public servant.
The state’s witnesses established that a loud bang occurred, but they also revealed that they were not the kind of people who would listen to a command to leave a person’s house. The two kids also showed the judge that they were not being the best houseguests, smoking pot and throwing vases in Darias’ rented house.
I made a customary “halftime” motion to dismiss the case, knowing that it would undoubtedly be denied by Judge McCarthy. It was denied and I quickly asked Darias what he wanted to do. We talked earlier about whether he wanted Lakeisha called as a witness and we decided to wait and see how things went. I told Darias we didn’t have much to lose, but, looking back I shouldn’t have said “we.”
I called Lakeisha to the stand and she quickly blurted out that Antoine was “high” that night and the prosecutor quickly snapped, “objection, foundation.” The judge sustained or agreed with the objection and “struck” the Lakeisha’s remark from the record. This meant I had to backtrack and show that her conclusion that Antoine was “high” was reasonably accurate. I asked her if she was familiar with marijuana and its effects, if she had seen people before and after they had smoked it, and if she observed these effects on Antoine that night. The prosecution again objected but this time the judge let her answer stand. I considered this a small victory because now, even though the prosecution created a loud bang with their evidence that was difficult for us to explain, we had now hung a cloud over their case that probably wouldn’t affect the verdict but would undoubtedly help mitigate the sentence that followed. The judge, who was about Darias’s age, could place himself in Darias’ shoes and picture what it was like to come home to the smell of marijuana and the sound of a loudmouth punk under its influence, in your home.
Lakeisha went on to say that Darias never physically touched Antoine, even after Antoine hurled the vase at his head. She told about an argument that started in her bedroom when Darias came in to tell them to turn the music down. According to her, Darias did ask Antoine if he was the one smoking marijuana, but she also said that Antoine “got smart” with Darias and called him an old “female dog.” I asked her what she meant by this, and told her she wouldn’t be in trouble for swearing in court, but she couldn’t bring herself to say the word. She went on to describe Darias telling Antoine to leave and following him down the stairs as he left. She said Antoine grabbed a vase off the kitchen table and barely missed Darias’s head. Still, she said, she never saw Darias lose his temper that night.
She talked fast, and she started talking about what happened outside, on the porch, before I could slow her down. I had always heard that if something bad has to come out about your client’s case, it should come from your client’s or your witness’ mouth, so you have a chance to explain it and don’t appear to be hiding it from the judge or jury. If you ignore an obviously damaging piece of evidence, the story goes, the other side can pull it out as evidence that your client is lying about the evidence and lying about his guilt. With this in mind, I let Lakeisha explain what she heard outside. She said she couldn’t see Darias at the time, but that she heard a loud bang after she saw him walk to his truck. I knew this was bad for Darias, but also thought explaining it ourselves was better than letting the prosecution bring out this “bang” that she heard, on cross examination. Looking back, I think I gave the prosecution too much credit. They had their hands full that day and were probably not nearly as familiar with the case as I was. There was probably a good chance they would not have asked Lakeisha about what she had heard, but now I had done their work for them in trying to work for Darias.
Darias wanted to take the stand, and I knew that he would be a good witness. He told me he could not read or write, and, before trial, I noticed that he couldn’t even spell out his daughter’s names when I asked him about them. Sometimes, though, people without much formal education come across as more credible than the Harvard-educated expert or the Armani-clad corporate attorney. Darias was a mechanic who learned to read engines by the way they hummed. He was credible to the judge because he didn’t try to be slick and spoke as he was: a simple man with a simple explanation of what happened that night.
At one point, the prosecutor thought she had Darias pinned down in a lie. Darias was hard to understand and stated that he stopped to see his girlfriend’s “ladyfriend” on the way home, to fix her car as a favor. I heard him say this clearly, and I think the judge did too, but the prosecutor hadn’t heard him say “ladyfriend.” The prosecutor thought Darias contradicted himself, because he had previously told the judge that he hadn’t seen his girlfriend that night until after he argued with Antoine. The prosecutor then tried to make Darias look like a liar, by bringing up his earlier statements, but Darias calmly repeated what the judge and I had both heard. The result was that the educated prosecutor looked “slick” and manipulative in questioning the word of this simple working man. The truth was that the prosecutor had just heard him wrong, but it looked like she was trying to create a reason to attack him, as if she did not have a real reason for doing so.
Darias, on direct examination, told of grabbing a snow shovel off the front porch as Antoine yelled at him from the street. He denied it just as forcefully as he had in my office and denied having a gun ever, let alone that night. I thought this was a good note to end on, so I cut him short. The prosecution asked a few minor questions, and we rested.
The prosecution summarized by pointing out that three witnesses heard a loud bang that night and that we hadn’t explained this. I remembered Darias’ explanation that this was probably the iron storm door slamming, and concluded again that bringing this explanation into evidence would probably have hurt and not helped out Darias’s case. If we had discussed the “storm door excuse” it would have only reminded the judge that we had no real, plausible explanation for the bang several witnesses, including our own, heard.
When my turn came, I tore into Antoine and the boy’s lack of credibility. I asked the judge to put himself in Darias’ shoes, coming home after work to find some kids getting high with your daughter in your house. When he tells them to turn the music down, they refused, yelled and threw things at his head. I used this summary because at this point, a conviction was likely and these words were chosen not to claim innocence but to show justification. I knew a conviction was coming and was trying to cushion the blow. While I had the judge’s attention, I spoke about Darias’s innocence (“They hadn’t proven he had a gun”) but was really addressing Darias’s position (“These boys had it coming”).
I failed at beating the state’s case against Darias but succeeded in keeping him out of jail. The judge “split the baby,” finding Darias guilty of shooting a gun in the city limits, but not guilty of the assault and the disorderly conduct. The judge, a good one known to say in two sentences what some lawyers said in two pages, simply said, “I think you lost your temper. I order you to pay a $300 fine plus the court costs.”
Nearly everyone was happy with this verdict. The prosecutors got their conviction, the “victims” got to see Darias lose something, and I got some valuable trial experience that can only come from being in court. Darias was thrilled, but he didn’t let this show until we got outside. His had been a rough life, and he had probably expected to go to jail, at least for a little while, even if he was innocent. I didn’t know whether to take his reaction as a sign that he really shot his gun that night or simply as a relief that it was only money and not time that had to be paid. I took Darias’s smile as a rare, but fulfilling victory in itself, however.

Copyright, David Tarrell, All Rights Reserved, 2006

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