by Justice William W. Bedsworth
The way I heard the story, defense counsel was taking a terrible beating. He’d been around the block enough to know going in that he was trying to empty a lake with a teacup, but the fact had been even worse than the contemplation. He was getting well and truly hammered.
It was a no-body murder case, and in 1971, those could be tough for the prosecution.1 But this time their lack of a body was a speed bump; they had everything else. Means, motive, opportunity, an unlikeable defendant . . . they had all of that in spades.
A reasonably well-trained golden retriever could win a conviction in this one. The proverbial snowball in hell had a much better probability of success than his client.
But his offers to plead to a lesser offense had been rebuffed so it wasn’t like there was any choice. He had to try the case, even if it meant getting shellacked for a few weeks.
He went in expecting much wailing and gnashing of teeth, but it was worse than that. Apparently Purgatory was all full up and they re-booked him into hell.
Voir dire was a nightmare. The venire seemed to be made up entirely of people whose certainty about his client’s guilt was matched only by their encyclopedic knowledge of the facts of the case.
Every prospective juror turned into an unsworn prosecution witness: “Oh yeah. I heard all about the case. Your client caught his wife with another guy and offed her two days later. They just don’t know what he did with the body.” Or, “Sure I know about it. Your client beat his last wife and killed this one; they just haven’t found the body yet.”
The worst was, “Well, sure, I can keep an open mind, but they’re pretty sure they got the right guy. I mean, he said he was gonna kill her and presto-changeo, she disappeared, right?” This wasn’t so much picking a jury as trying to hold back the tide.
He was finding himself more and more attuned to Mark Twain’s conclusion that, “We have the best criminal justice system in the world; the only difficulty is finding twelve people for every case who don’t know anything and won’t read.”
And it didn’t get any better when they began taking testimony. His client not only had a motive, he had expressed it out loud to 3/4 of the free world. The line of witnesses ready to describe his drunken tirades about his cheating wife had to be given wristbands so they wouldn’t lose their place.
The prosecutor had filled a solid week disproving the three different stories the defendant had given police about his whereabouts when his wife had disappeared. It would have been better if he’d just said he witnessed her being abducted by aliens.
The only break he got was when the judge ruled the prosecution couldn’t use the prior wife-beating in their case in chief. But that was at best a mixed blessing. A half-dozen prospective jurors had mentioned it during voir dire, so the entire panel was fully aware of it. And the fact it was floating out there in the ozone as likely impeachment had convinced him—and his client—that they couldn’t put the defendant on the stand.
So all defense counsel could do was try to keep the blood leaking from his nose and eyes from staining his tie and act like the prosecution hadn’t laid a glove on him. He felt like they should ring a bell at the end of each witness to signify the end of the round and allow him to spend a few minutes in the corner with his cut man.
But finally the prosecutor ran out of safes to drop on his client and rested. His client being unable to even provide a decent character witness,2 counsel put on a brave face and announced, “We need no witnesses, your Honor; we’re ready for argument.”
This got him a stern look from the judge, but hey, the case was a slam dunk and the judge figured the poor defense attorney was probably hemorrhaging from both kidneys, why not let him get in one shot—even if it was slightly below the belt.
The prosecutor’s opening argument pretty conclusively established the likelihood of the victim’s death—with or without her body being located—and then ran through the laundry list of evidence against the defendant. It was an impressive list; a large hospital would have a hard time producing that much laundry.
So now it was time for the defense argument. Defense counsel got up, strode to the lectern, and apologized to the jury. Yep, apologized. Not for his client. Not for himself. For the prosecution.
He apologized that the prosecution had wasted the jurors’ time and the taxpayers’ money trying a murder case in which the “victim” was not dead. He lamented the fact the prosecution had failed to fully investigate the case, making it necessary for his investigator to track down the victim and bring her back to Santa Ana.
“So now,” he said, “let’s end this farce. Let’s prove conclusively that my client did not murder his wife. She’s right outside in the hallway with my investigator, and now she’s going to come in and meet you all.”
With a flourish, he turned away from the lectern, gestured toward the doors to the courtroom, and shouted, “Mr. Investigator, bring Mrs. Gazorninplat in.”
Every head in the room turned toward the back doors. The clerk, the bailiff, every juror, every spectator watched expectantly. Nothing happened.
Defense counsel shouted again, “Mrs. Gazorninplat, please come in!”
Again, nothing. Dozens of eyes, trained on the doors, saw not so much as a vibration.
Finally, counsel turned back to the jury. “No,” he said, “we can’t produce Mrs. Gazorninplat any more than the D.A. can. They’ve had months to solve this crime, over a year, with all the immense resources of the state, and all they’ve been able to do is try to pin it on her husband because they’ve decided he’s the most convenient fall guy available.
“But you know what, ladies and gentlemen, they’ve failed. And what’s more, they’ve failed to prove beyond a reasonable doubt that she’s even dead. And how do I know that?
“Because just now, when I said she was going to walk into the courtroom, you all turned to look at the back doors. You all thought maybe she was going to walk in. You wouldn’t have done that if you were convinced beyond a reasonable doubt that she was dead. You clearly are not yet convinced she is dead. And that means you must acquit my client.
“Make the prosecutor prove there’s been a crime before you send somebody off to die for it.”
Defense counsel sat down to stunned silence.
As Hail Marys go, it wasn’t half bad. Desperate situations call for desperate measures and all that. But it was, at bottom, a desperate measure.
It failed. The jury took three hours to convict his client. An hour-and-a-half of that time was spent at lunch. An unknown amount was spent on choosing a foreperson and speculating about whether the bailiff was gay.
So why have I spent so much time reviving this probably apocryphal chestnut? Well, partly because I’ve always loved the story, and I figured there might be a few civil lawyers who had not heard it.
But mostly it’s part of an apology. I’m apologizing because I told you to watch the doors and now there’s nothing coming through them.
I told everybody last year I was going to retire this November. I told my wife, I told the PJ, I told my staff, I shouted it at every old guy out for his morning walk that I passed on my way to work. I was going to retire. This column was going to be my swan song.3
I started clearing out my file cabinets, figuring out where the artwork in my chambers would fit in my home, reading retirement books. I began working on my short game, making a list of movies I wanted to watch. I bought a book with the rules of bocce. I prepared like crazy.
But I chickened out.
Turns out I don’t have the huevos. I can’t face the idea of not doing what I do now. I’ve been on the bench for thirty-three years. I’m starting to get the hang of it. I can’t quit now.
This was good news to my wife, who had lobbied against retirement with the irrefutable logic that, “You can’t retire because I don’t think I—all by myself—can provide you with enough ego strokes to get you through the day.”
And there’s something to that. For thirty-three years, all my jokes have been funny, all my insights brilliant, all my lunch choices inspired, half my decisions correct.4 That would be hard to give up.
But mostly, I just can’t walk away from the people. I’ve spent a half-century in the company of lawyers. It’s a perk of the practice I don’t think we give enough thought to. Until we contemplate doing without it.
One of the best things about practicing law is that you get to hang out with lawyers. Lawyers are great company. They’re smart, funny, hard-working, and dedicated to making the world a better place. They’re fun to talk to and easy to respect.
There are other people like that. And I could probably find some in retirement. But why go looking for what I’ve already got?
Every day, I walk into this courthouse, and I’m surrounded by people I like and admire. Why would I give that up?
So this will not be a swan song. Maybe next year. Keep your fingers crossed.
No swan song today. Just another five minutes you’ve been conned into wasting. Sorry about that.
William W. Bedsworth is an Associate Justice of the California Court of Appeal. He writes this column to get it out of his system. A Criminal Waste of Space won Best Column in California in 2018 from the California Newspaper Publishers Association (CNPA). And look for his latest book, Lawyers, Gubs, and Monkeys, through Amazon, Barnes and Noble, and Vandeplas Publishing. He can be contacted at email@example.com.