I Still Remember



It’s been a year since the “Big Smooth” died.  Big Smooth is, of course Bill Gracik.  If you didn’t read what I posted about him last year, you owe it to the man to read it now. If you don’t owe it to him, you at least owe it to me.

I don’t know that I’ll have the chance to put something up here every year.  Most of my silly thoughts are ending up at Excessive Bail these days anyway, so I hardly get to post anything here.

It doesn’t mean I’m going to forget, though.  Quite the opposite, probably.  Big Smooth has come up in conversation with at least two other lawyers in the last couple of weeks… and not because of his passing.  Like I said last year, legends don’t die.

A month or so after posting my thoughts on his passing somebody asked me about the trial I mentioned.  To make a long story short, it was a DUI trial that looked not-completely-horrible on paper:  There were no field sobriety tests.  There was no breath test.  These are usually good things.  Great things, actually.

There were a lot of other bad facts, though.  Really bad facts.  Like, my client had rear-ended a car.  The car had children… one of whom received medical treatment for minor injuries.

Inside the car was a bottle of vodka. It was open.  It appeared that some of the vodka had been consumed. It was also the 4th of July.

We say that my client refused the field sobriety tests.  The police, on the other hand, testified that my client fell several times prior to completing them and offered to do them but wanted to take a nap first.  The police also say he smelled like alcohol.

He also may or may not have been arrested for DUI in the past. Several times. The jury didn’t know that, though.

On the other hand the officer admit that my client was in an accident, he might have hit his head, and the problems walking and desire to lay in the grass and sleep could very well have been symptoms of head injury. He didn’t know.

The officer also never saw my client driving.  Laying in the grass next to the smashed-up car registered in his family name? Perhaps. Actually driving? No.

Neither did the lady in the accident. She couldn’t identify the driver.

So, the prosecutor takes his best facts- car accident, hurt kid, vodka in car, man smelling like alcohol, falling down during field sobriety tests, asking to take a nap, and that he’s probably coming back from a 4th of July party.  He argues to the jury that my client was driving drunk.  He says it’s obvious.

I do the same.  The only thing that’s obvious is that he might have had a serious head injury.

My client wasn’t so drunk he fell down during the field sobriety tests, rather he refused them. The officer just didn’t like how he refused.  Plus, he needed to nap because he hit is head on the steering wheel and had a concussion.  That’s also why he was having trouble walking.  Did he have something to drink that day? Sure he did. Was he so drunk that it impaired his driving?  It’s the state’s job to prove that… and they haven’t

And then?  Well, then I do what Gracik was laughing about.

In fact, they haven’t even proved that my client was driving.  The officer never saw who was driving the truck, and the lady who was hit can’t identify anybody.

When you stand up to make that closing argument, you must believe what you’re arguing.  You have to take the facts in the case- whatever facts they may be- and put them together in a way that makes sense.  If you don’t buy what you’re about to argue, nobody will. Rule #1 of being a trial attorney is to always say true things. Always tell them what you think is the truth. There are no exceptions.

Here, the prosecutor believed my client’s behavior was a result of being intoxicated- there weren’t any other options.

I believed that it might have been the result of a mistake (the accident) and a head injury.

You both believe what you believe.  So, after closing arguments, when the jury saunters off to deliberate, you both think you’ve got a good shot at winning.  One of you won’t, and he’s going to be disappointed- right or wrong, it’s disappointing.  It’s almost cruel how this system works.

Gracik crushed my spirits before the jury even came back.

“What do you think, Smooth?”

“I think you did good. I like the argument about the head injury- how do they know he didn’t have a bad concussion, right? You asked for too much when you said they can’t even identify your guy, though.”

“You think I’ve got a shot?”

“Oh, hell no. There isn’t anybody who thinks he wasn’t driving that car.”

If Bill hadn’t said that, I don’t know how long it would have taken me to figure that out.  I see lawyers in court with a lot more experience now than I had then who still haven’t.  It’s easy to sit behind a keyboard, with 13 years of practice and thousands of legal arguments of experience since, and see how obvious that is.

It’s a simple idea, really.  If a prosecutor says something is black, a defense attorney argues it’s white.  Suppose the defense attorney also argues that it wasn’t raining outside.  The jury might go back and focus on whether or not it’s raining as opposed to the more important black/white argument.  If they decide you were wrong about it not raining, why should they think you’re correct about it being white? They shouldn’t.

If you leave the discussion about rain out of it, they haven no choice but to focus on the real issue.

That’s not to say I would have won if I hadn’t asked for too much.  After all, what verdict form would you have signed for the guy with open vodka in the car who kept falling down and wanted to take a nap?  The reality is that we only went to trial because the prosecutor wanted to run the trial, and I figured we could get a better sentence from the judge after trial than the prosecutor was offering (which, by the way, we did).

Keeping things straightforward and not arguing extra things to a jury is the only way to go, though.  That was a lesson I learned quicker than most because The Smooth took the time to watch my closing and point it out.  You can’t have enough good friends in this job- especially when you’re just getting going.

That was an important lesson to learn, and I won’t forget it.

I won’t forget Bill Gracik, either.

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